Right to Freedom of Religion

Overview

India is a secular state — not in the sense of strict separation of religion and state (as in the American model), but in the sense of equal respect for all religions (the "principled distance" model). The Constitution guarantees both the individual's right to freedom of religion and the collective rights of religious denominations.

The right to freedom of religion is available to all persons — citizens and non-citizens — though some provisions (e.g., Article 26) apply specifically to religious denominations.

Article 25: Freedom of Conscience and Free Profession, Practice and Propagation of Religion

Text: All persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

Key Concepts

• Freedom of conscience: The inner freedom of an individual to hold or not hold any religious belief.
• Profess: To declare one's religious faith openly.
• Practise: To perform religious worship, rituals, and ceremonies. This includes the right to perform acts integral to the religion (e.g., aarti, namaz), but not necessarily every act claimed as religious.
• Propagate: To spread or promote religious beliefs. This includes the right to communicate and persuade, but not the right to forcibly convert. The Supreme Court has held that "propagation" does not include the right to convert another person by force, fraud, or allurement.

Exceptions: Public Order, Morality, and Health

Article 25(1) is subject to public order, morality, and health. Additionally, Article 25(2) permits the State to:

• Regulate or restrict any economic, financial, political, or other secular activity associated with religious practice (e.g., regulating temple finances, or prohibiting political endorsements by religious institutions).
• Provide for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus (e.g., the Temple Entry Acts that abolished caste-based exclusion from temples).

Landmark Cases

• Commissioner of Police v. Acharya Jagadishwarananda Avadhuta (2004): The Supreme Court held that the State can regulate secular practices associated with religion (in this case, the use of loudspeakers for azan or religious preaching) in the interests of public order.
• Shirur Mutt case (Ratilal Panachand Gandhi v. State of Bombay, 1954): The Court distinguished between "essential religious practices" (protected) and "secular practices" (regulable by the State).
• Stanislaus v. State of Madhya Pradesh (1977): The Court held that the right to propagate religion does not include the right to convert, and that anti-conversion laws (e.g., the Madhya Pradesh Dharma Swatantrya Adhiniyam, 1968) are constitutional.
• Sabarimala Temple case (Indian Young Lawyers Association v. State of Kerala, 2018): The Supreme Court held that the prohibition on women of menstruating age (10–50 years) entering the Sabarimala temple violated Article 25 and was not an "essential religious practice." This was a 4:1 majority decision with a strong dissent by Justice Indu Malhotra.

Article 26: Freedom to Manage Religious Affairs

Article 26 grants religious denominations the following rights, subject to public order, morality, and health:

• To establish and maintain institutions for religious and charitable purposes.
• To manage its own affairs in matters of religion.
• To own and acquire movable and immovable property.
• To administer such property in accordance with law.

Key Distinction

Article 25 protects the individual's right to religion; Article 26 protects the denomination's collective right to manage its religious affairs. A "denomination" is a religious sect or body with a common faith and organization (e.g., the Roman Catholic Church, the Ramakrishna Mission, the Dawoodi Bohra community).

Important: The right to manage property under Article 26(d) is subject to "law" — meaning the State can regulate property administration through laws (e.g., the Waqf Act, the Hindu Religious and Charitable Endowments Act).

Article 27: Freedom from Taxation for Promotion of Religion

Text: No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.

• The State cannot use public tax revenue to fund or promote any particular religion.
• This does not prohibit the State from spending on secular aspects of religious institutions (e.g., maintenance of roads leading to temples, police protection during festivals).
• It also does not prohibit the State from funding religious studies in a secular academic context (e.g., Sanskrit or Islamic studies in universities).

Article 28: Freedom from Religious Instruction in State Institutions

Text: No religious instruction shall be provided in any educational institution wholly maintained out of State funds.

Key Provisions

• Article 28(1): No religious instruction in institutions wholly funded by the State (e.g., government schools).
• Article 28(2): Even in institutions recognized by or receiving aid from the State, no person shall be compelled to attend religious instruction or worship without consent.
• Article 28(3): These provisions do not apply to institutions established by a religious endowment or denomination (e.g., missionary schools, madrasas) — they may provide religious instruction even if they receive State aid, provided attendance is not compulsory.

Sources