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Right To Freedom Of Religion under the Indian

Constitution
By Anubhav Pandey - October 21, 2017

In this article, Pradeep Raja Ravipalli pursuing M.A, in Business Law from NUJS,
Kolkata discusses the Right to freedom of Religion under the Indian Constitution.

Questions for writers?

Introduction
India is a multi-religious society and the survival of such a general public has been conceivable
just it, all religions are given equivalent treatment with no support or separation. The
separation of the nation was clearly in light of religion and this was an eye-opener for the
creators of the Constitution when they were occupied with the errand of giving a solid shape to
the constitution of our nation. The framers of the Indian Constitution did not, explicitly opted
for the concept of India to be a secular state.”Secular” was not there in our constitution when
it came into the being. It was in this manner joined into the prelude of the Constitution by the
42nd Amendment Act of 1976. The formal consideration of the descriptive terms “Secular” is,
for the most part, the consequence of meeting out the exigencies of the predominant
conditions, the necessity of gathering legislative issues and ideological window-dressing. To
some degree, it likewise mirrors the obliviousness and disregard of the ideologues that they
added it just to the introduction, and did not take think to achieve reasonable changes in the
Constitution. It can be called attention to that the term utilized after “Socialist”
is repetitively used as a communist vote based state has fundamentally to be common. In the
perspective of the different articles showing up to some extent III of the Constitution, one
might say that India was at that point a secular state and there was no need of such
expansion. It gave a rather false impression that beforehand India was not a secular state.

Religious Freedom and Right to Equality in India

One of the rights ensured by the Indian Constitution is the privilege of Freedom of Religion. As
a secular country, each national of India has the privilege to the opportunity of religion,
i.e. ideal to take after any religion. As one can discover such many religions being practiced in
India, the Constitution assurances to each national the freedom to take their preferred
religion. As per this essential right, every citizen has the chance to practice and spread their
religion peacefully. What’s more, if any occurrence of religious narrow mindedness happens in
India, it is the obligation of the Indian government to check these frequencies and take strict
activities against it. The right to freedom of religion is all around depicted in the Articles 25,
26, 27 and 28 of Indian constitution.

The Indian Constitution guarantees certain fundamental rights which were described in articles
12 to 35, which shape Part III of the Constitution. Among these articles, art., 25 and 26 are
the two key articles ensuring religious freedom.

Questions for writers?

Articles 14, 15 and 16 of the Constitution of India deal with the right to equality. Article 17 is
the unique arrangement that nullifies “untouchability” and precludes its training in any frame.
Right to equality to correspondence under the steady gaze of the law and equivalent
assurance of the law to all residents regardless of religion, race, sex and place of birth is one
of the fundamental estimations of a secular popularity based State. Article 14 of the
Constitution gives the two parts of uniformity to all people, including outsiders who reside
inside the region of India.

There are in the meantime a few arrangements of the Constitution that perceive exemption to
the general rule of equality on different sensible grounds. These are given in conditions (3)
and (4) of article 15 and in clauses (4) and (5) of article 16. Special cases to the general
government of uniformity allowed under condition (4) of article 15 and clause (4) of article 16
would be of enthusiasm for our thought.

Article 15 of the Constitution accommodates a specific utilization of the general standard of

balance encapsulated in Article 14. Clause (1) of article 15 coordinates the State not to
oppress any resident on the ground just of religion, race, standing sex or place of birth or any
of them. The forbiddance contained in this provision applies to the State in managing
nationals. clause (2) of the article 15 forbids the private individual and in addition the State
from causing any segregation or handicap as to the subject’s entrance to shops, lodgings,
and so forth., and all spots of open excitement and resort. The social and religious effect of
this proviso is to be found with regards to the loathsome history of the alleged ‘untouchable
individuals’ who, for quite a long time before, were liable to social isolation and
embarrassment in many parts of the nation. Likewise, provisos (1) and (2) of article 16 typify
the rule of fairness set down in article 14 with reference to the arrangement and work under
the State.

Give us now a chance to investigate and see the basis of the special case conditions to the
general precept of uniformity, which is known as arrangements of “Protective discrimination”
or “compensatory discrimination.” Clause (3) of article 15 gives immunity for women and
youngsters, clause (4) of article 15 gives immunity for some backward classes of Indian
citizens and for Scheduled Castes and Scheduled Tribes for their progression in the field of
education. Essentially, clause (4) of article 16 gives an exemption for any backward class of
citizens in the area of appointment of jobs under the state, on the off chance that they are not
satisfactorily spoken to in such administrations.

Questions for writers?

The religious freedom of unique individuals of India guaranteed by the Indian constitution by
clause (1) of article 25, which can be interpreted precisely the Constitution makes it clear that
the rights provided in clause (1) of article 25 are subject to “morality”, “public order”, and
health and to the other, Articles of Part III of the Constitution that lays down the fundamental
rights. Clause (2) of article 25 is a “saving clause” for the country so that the religious rights
guaranteed under clause (1) are further subject to any “existing law” or a law which the State
deems it fit to pass that:

(a) controls or lays constraint on any financial, economic, political or other secular activity
which may be linked with religious practices, or,

(b) offers for social welfare and reform or the throwing open of Hindu religious institutions of a
public character to all Hindu sections.

Correspondingly Article 26 is the fundamental article that gives “the corporate freedom” of
religion overseeing the connection between the State and Subject to open request, ethical
quality and well-being each religious group or any area thereof should have the privilege, (a)
to set up and keep up organizations for religious and magnanimous purposes; (b) to deal with
its own particular undertakings in issues of religion; (c) to possess and obtain portable and
ardent property; and (d) to regulate such property as per law. Proviso (b) of article 26
assurances to each religious category or any segment thereof the privilege to deal with its own
issues in issues of religion and condition (d) gives them the privilege to oversee their property
(organizations) as per laws go by the State. It is clear from the dialect of the conditions (b)
and (d) of article 26 that there is a fundamental distinction between the privilege of a section
to deal with its religious undertakings and its entitlement to deal with its property.

Judicial Perception of the Right to Freedom of Religion

The expression “religion” has not been characterized in the Constitution and it is not helpless
of any unbending definition. The Supreme Court has characterized it in several cases. A
religion is positively a matter of confidence and is not really mystical. Religion has its premise
in “an arrangement of the convictions or conventions which are respected by the individuals
who pronounce that religion as helpful for their profound prosperity”, however, it would not be
right to state that religion is nothing else except for a teaching or conviction. A religion may
not just set out a code of moral principles for its devotees to acknowledge, it may endorse
customs and observances, services and methods of love which are viewed as a fundamental
Questions
piece of religion and these structures and observances for even
may degree writers?
to issues of
sustenance and dress. Subject to specific confinements, Article 25 presents a major
ideal for everyone, not only to engage such religious convictions as might be affirmed by his
judgment or soul yet, in addition, display his convictions and thoughts by such unmistakable
acts and practices which are authorized by his religion. Presently what rehearses are secured
under the Article is to be chosen by the courts regarding the convention of a specific religion
and incorporate practices viewed by the group as a feature of its religion. The courts have
gone into religious sacred texts to find out the status of a training in question. In various
cases, the courts have remarked upon, clarified a translated the arrangements of the
Constitution on uninformed, non-separation, and religious opportunity. The choices in the
greater part of these cases have been given is the settings of the privileges of specific religious
groups or under spend; laws identifying with such groups. A brief on real choices takes after.

In India, the need to characterize religion was raised interestingly by Dr.B.R. Ambedkar when
the issue relating to individual law and its connection to religion desired dialog in the
Constituent Assembly. He called attention to: The religious originations in this nation are vast
to the point that they cover each part of life from birth to death. There is nothing which is not
a religion and if the individual law is to be spared I am certain about it that in social issues we
will grind to a halt… There is nothing uncommon in saying that we should endeavor from now
on to constrain the meaning of religion in such a way, to the point that we might not expand it
past convictions and such ceremonies as might be associated with ceremonials which are
basically religious. It is redundant that the kind of laws, for example, laws identifying with
occupancy or laws identifying with progression ought to be represented by religion… I for one
don’t comprehend why religion ought to be given this huge broad ward in order to cover the
entire of life and to keep the governing body from infringing upon that field.

On the supposition of Dr. B.R. Ambedkar, what constitutes a “religion” or ‘matters of religion’
is to be found out by restricting to religious convictions and ceremonies, which are held as
basically religious in a specific religion, which is under legal audit. The Indian Constitution has
no unequivocal meaning of “religion” or ‘matters of religion’. Under the order of article 32 of
the Constitution, which gives the privilege to protected cures, it is left to the Supreme Court to
settle on the legal importance of such terms. In the mid-1950s of every various case, the
Courts in India had been confronted with the issue of characterizing “religion” as given in
article 25 (1) and ‘matters of religion’ as gave in article 26 (b). The specialist should now
continue to analyze some of those cases, which were bid under the steady gaze of the
Supreme Court of India for legal grouping.

Questions for writers?

Some landmark cases in the matter of Right to religion
under Indian Constitution

1. Ratilal Panachand Gandhi v. Territory of Bombay. (Hereafter the Ratilal

case)

The Ratilal case, the Supreme Court was by and by engaging settle on the legal use of
“religion” and ‘matters of religion’ as suggested morally justified to exercise of religion ensured
under articles 25 and 26 of the Constitution. The case emerged out of the Bombay Public Trust
Act, 1950, go to the Bombay State Legislature. Like the Madras Act of 1951, the question of
the Bombay Act as expressed in its preface was to control and to improve arrangement for the
organization of open religious and beneficent trusts in the State of Bombay.

Section 18 of the Bombay Public Trust Act, 1950, pronounced that it was mandatory upon the
trustee of each open trust to which the Act connected, to make an application for the
enrollment of the trust. Like section 21 of the Madras Act of 1951, Section 37 of the Bombay
Act likewise approved the Charity Commissioner and his subordinate officers to enter and
review any property having a place with an open trust. Section 44 of the Act given that the
Charity Commissioner may be selected by a Court of competent jurisdiction or by the creator
of the trust to go about as a sole trustee of an open trust. Section 74 offered forces to the
Court to select other trustee or trustees and the Court, in the wake of making a request, could
name the Charity Commissioner or whatever other individual as a trustee to top of the
opening.

The Manager of a Jain Public Temple and Trustees of Parsi Panchayat Funds and Properties in
Bombay challenged before the Bombay High Court the constitutional validity of the Bombay
Public Trust Act of 1950. It was done on the ground that the provisions of the Bombay Act of
1950 contradicted opportunity hone religion as ensured in article 25 (1) and flexibility to
oversee matters of religion as secured by article 26 (b) of the Constitution. The Bombay High
Court denied the appeal to in the light of sub-provision (c) and (d) of article 26 of the
Constitution, which gives the State expert to authorize the enactment as given in the
Bombay Act, Therefore, the Bombay High Court settled the case for the State on the premise
of the definition that the Court provided for religion in the momentous case. This definition
decreased religion to otherworldly and moral viewpoints just and wiped out mainstream
exercises, similar to the property proprietorship and is related to religious practices, from the
assurance ensured in the Constitution. The Chief Justice, Mr. M.C. Chagla who conveyed the
Questions for writers?
judgment of the Bombay High Court stated: “Religion” as utilized as a part of expressions. 25
and 26 must be translated in its strict and etymological sense. Religion is what ties a man with
his Creator, however, Mr. Sommaya for the benefit of his customer (Panachand) says that to
the extent Janise are concerned, they don’t have confidence in a Creator and that qualification
would not have any significant bearing to the Jains. Be that as it may, even where you have a
religion which does not have confidence in a Creator, each religion must trust in a heart and it
must have faith in morality and good statutes. Consequently, whatever ties a man to his own
heart and whatever good and moral standards manage the lives of men, that by itself can
constitute religion as comprehended by the Constitution. A religion may have numerous
mainstream exercises, it might have common viewpoints, yet these common exercises and
perspectives don’t constitute religion as comprehended by the Constitution. There are religions
which bring under their own shroud each human movement. There is nothing which a man can
do, regardless of whether in the method for garments or sustenance or drink, which is not
viewed as a religious movement. In any case, it is ridiculous to recommend that a Constitution
for a mainstream State at any point expected that each human and unremarkable action was
to be secured under the pretence of religion, and it is in this way in deciphering religion in that
strict sense that we should approach articles 25 and 26.

2. Durgah
Committee, Ajmer v. Syed Hussain Ali. (Henceforth the Durgah
Committee case)

In the Durgah Committee case, an appeal was made by and by to settle on “the issues of
religion” which is ensured under statement (b) of article 26. The historical backdrop of the
present case is as per the following: In 1955, the Parliament had passed the Durgah Khawaja
Saheb Act, to regulate the Durgah and the blessing of the Durgah Khawaja Moinuddin Christi
at Ajmer. This Durgah, which is a Muslim pioneer focus worked at the tomb of Khawaja
Moinuddin Saheb who is a Christi holy person, has been gone to by both Muslim and Hindu
travelers.

Section 4 and 5 of the Durgah Khawaja Saheb Act of 1955, accommodated the arrangement of
a Durgah Committee by the Central Government to control and deal with the Durgah
endowment According to the terms of Section 4 and 5 of the Act, the individuals from the
panel designated by the Government were to be Hanafi Muslims. Section 15 of the Act set out
the direction that the Committee ought to take after the Muslim guidelines and precepts of the
Christi holy person in performing and leading the setup rituals and functions at the tomb of
the Christi holy person.

Questions for writers?

The Khadims (the traditional caretakers of the tomb) tested the legality of the Act on the
ground that it encroached upon their rights ensured in article 26(b), (c) and (d). Their test
prevailing in the High Court of Rajasthan. In issuing the judgment, the Rajasthan High Court
watched that the arrangements for the arrangement of the Committee individuals were ultra
vires to the degree that the arrangement of the Committee individuals kept away from
individuals from the Chisti arrange who have the confidence in the religious practices and
customs related with the Chisti holy person altar. Different arrangements of the Act influencing
the benefits and obligations of the functionaries of the place of worship were likewise
proclaimed violative of articles 19 and 25 of the Constitution.

On appeal, the Supreme Court found that the provisions of the said Act were not violative of
the Constitutional rights ensured to religious groups. The Court watched that the Act managed
just the common practices related with religion, which was not a fundamental or vital piece of
religion. Mr. Equity P.B.

Gajendragadkar who conveyed the consistent judgment of the Court stated: Whilst we are
managing this point it may not be strange by chance to strike a note of alert and watch that
all together that the practices being referred to ought to be dealt with as a piece of religion
they should be viewed by the said religion as its fundamental and vital part; generally even
simply mainstream hones which are not a basic or a necessary piece of religion are well-suited
to be dressed with a religious shape and may make a case for being dealt with as religious
practices inside the importance of article 26. Thus, even practices however religious may have
sprung from just superstitious convictions and may in that sense is superfluous and
unessential accumulations to religion itself. Unless such practices found to constitute a
fundamental and basic piece of a religion their case for the security under Article 26 may be
precisely examined; as such, the insurance must be kept to such religious practices like a
basic and a necessary piece of it and no other.

In conveying the judgment of the moment case, Mr. P. B. Gajendragadkar, J., who
represented the Court, focused on that ‘matters of religion’ secured under article 26 (b) are
those demonstrations which are dealt with as fundamental and essential part by the religion.
He advised that generally things that are not of religious concern can be brought under its
ambit such that religion can be utilized or controlled to true blue superstitious convictions and
practices which may hurt as opposed to empowering human prosperity. This is the purpose
behind the scholarly judge to strike a note of alert to separate ‘matters of religion,’ whose
insurance is ensured by the Constitution of India, from common exercises appended to
religious practices.
Questions for writers?
References:

http://india.lawi.asia/the-durgah-committee-ajmer-andanother-v-syed-hussain-ali-and-ors-3/
http://www.southasianrights.org/wp-content/uploads/2011/07/Rati-Lal-v-State-of-Bombay.pdf
http://india.suramya.com/india_constitution.php
http://shodhganga.in ibnet.ac.in/bitstream/10603/1936/8/08_chapter%203.pdf
http://courses.cs.vt.edu/cs3604/lib/Freedom.of.Speech/International/india.secularism.html
http://www.iloveindia.com/constitution-of-india/right-to-religion.html
https://en.wikipedia.org/wiki/Fundamental_rights_in_India
http://www.thehindu.com/2003/07/02/stories/2003070201231000.htm
http://repository.ubn.ru.nl/bitstream/handle/2066/30920/30920_humadiini.pdf?sequence=1
https://indiankanoon.org/doc/1307370/
https://charity.maharashtra.gov.in/Portals/0/Files/B.P.T.Act,1950.pdf
https://www.legalcrystal.com/act/137262/the-madras-hindu-religious-and-charitable-endowments-act-
1951-1-complete-act
https://indiankanoon.org/doc/1262157/
http://minorityaffairs.gov.in/sites/default/ les/durgah_act.pdf

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