08 Chapter 1

“The concept of Secularism and Freedom of Religion: Role of Supreme Court of India With Special
Reference to Article 25 of Indian Constitution” An Analytical Study.
CHAPTER 1: INTRODUCTION:
India is a secular country. Secularism means State neutrality in the matters
of religion, it means there is no official or sponsored religion of India like
Shri Lanka, where Buddhism is official religion. Pakistan is having Islam as
a national religion. Such sponsorship of religion is not available in India.
Indian constitution is the supreme law of land. It determines the Rights,
Duties, Liabilities, powers of persons and institutions. Part III of Indian
constitution is pivotal sector under Indian constitution. Fundamental Rights
are also called as Human Rights rather they are called as Natural Rights.
These rights are basic in nature, without these rights it is impossible to live a
Human life. India is a secular country it means there is no authenticates
religion of Government of India. Supreme Court of had played important
role in the maintenance of India as a secular nation. The religious freedom
granted under Indian constitution is most sacred part under which very
person's belief, faith and worship is protected. Still this right is not absolute,
uncontrolled freedom is not available to India citizens. This freedom is
subject Public order, Morality, health, and other provisions of Part III of
Indian constitution. It means this freedom of religion can be curtailed under
certain circumstances.
1
1.1 Constitutional Provisions
The secular Indian Constitution provides religious freedom. Article 25 to 28
of Indian constitution devoted to Religious freedom. It means that the
citizens of India will have choice of religion, they can profess, and precise
and propagate any religion as per their choice. If there is a violation of
fundamental Rights of citizens are violated then they can knock the doors of
Supreme Court and High courts under Article 32 and 226 respectively. Apex
court then determines the contours of Religious freedom of citizens of India.
1: Preamble of Indian Constitution: - - Preamble of Indian Constitution is
key to read mind of makers of Indian Constitution. By 42"d Amendment Act
1976 word secular was added and there by India became Secular Country
officially.
Article 19(1) (a) of Indian Constitution: -Out of one of the six golden
freedoms freedom of speech and expression is very important freedom.
Freedom of religion is also a part and parcel of freedom of speech and
expression
Article 21 of Indian Constitution: - It is duty of state to protect life of the
people and for that purpose the incidental rights of persons shall be
protected. As provided in Article 39 of Indian Constitution.
2
Article 25 of Indian Constitution: - Freedom of conscience and free
profession, practice and propagation of religion-
I: subject to public order morality and health and to the other provision of
this part, all persons are equally entitled to freedom of conscience and the
freely to profess practice and propagate religion.
II: Nothing in this Article shall affect the operation of any existing law or
prevent the state from making any law - regulating or restricting any
economic, financial political or other secular activity which may be
associated with religious practice; providing for social welfare and reform or
throwing open of Hindu religious institutions of public character to all
classes and sections of Hindus.
Explanation I: The wearing and carrying kripans shall be deemed to be
included in the profession of Sikh religion.
Explanation II : In sub-clause (b) of clause (2) the reference to Hindus shall
be construed as including a reference to professing the Sikh, Jaina or
Buddhist religion and the reference to Hindu religious institution shall be
construed accordingly.
5. Article 26 of Indian Constitution: -Freedom to manage religious
affairs. - Subject to public order, morality and health, every religious
denomination or any section thereof shall have the right-
3
(a) to establish and maintain institutions for religious and charitable
purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable properly; and
d) to administer such property in accordance with law.
6. Article 27 of Indian constitution: -Freedom as to payment of taxes for
promotion of any particular religion.-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
7. Article 28 of Indian constitution: Freedom as to attendance at religious
instruction or religious worship in certain educational institutions.-(1) No
religious instruction shall be provided in any educational institution wholly
maintained out of State funds.
(2) Nothing in clause (1) shall apply to an educational institution which is
administered by the State but has been established under any endowment or
trust which requires that religious instruction shall be imparted in such
institution'
(3) No person attending any educational institution recognized by the state
or receiving aid out of State funds shall be required to take part in any
4
religious instruction that may be imparted in such institution or to attend any
religious worship that may be conducted in such institution or in any
premises attached
There to unless such person or? If such person is a minor, his guardian has
given his consent thereto.
8. Article 29 of Indian constitution: protection of interests of minorities.-
(1) Any section of the citizens residing in the territory of India or any part
thereof having a distinct language, script or culture of its own shall have the
right to conserve the same'
(2) No citizen shall be denied admission into any educational institution
maintained by the state or receiving aid out of State funds on grounds only
of religion, race, caste, language or any of them'
9. Article 30 of Indian constitution: Right of minorities to establish and
administer educational institutions.-(1) All minorities, whether based on
religion or language, shall have the right to establish and administer
educational institutions of their choice'
(1A) In making any law providing for the compulsory acquisition of any
property of an educational institution established and administered by a
minority, referred to in clause (1), the State shall ensure that the amount
5
fixed by or determined under such law for the acquisition of such property is
such as would not restrict or abrogate the right guaranteed under that clause'
(2) The State shall not, in granting aid to educational institutions,
discriminate against any educational institution on the ground that it is under
the management of a minority, whether based on religion or language.
10. Article 44 of Indian Constitution: Uniform civil code for the citizens. -
The State shall end endeavor to secure for the citizens a uniform civil code
throughout the territory of India.
International Safeguard:
Universal Declaration of Human Rights, 1948.
Article1: All human beings are born free and equal in dignity and rights.
They are endowed with reason and conscience and should act towards one
another in a spirit of brotherhood.
Article 18. Everyone has the right to freedom of thought, conscience and
religion; this right includes freedom to change his religion or belief, and
freedom, either alone or in community with others and in public or private,
to manifest his religion or belief in teaching, practice, worship and
observance.
6
1.2 Significance of research Problem:
Indian is secular country. It means there is no official religion of India as
such. Religion plays very important role in human life. Human being is an
animal but due to intellectual capacity he is different from rest of animals.
Religion provides certain moral principles, which shall be followed by the
persons. Religion is an agency of social control up to certain extent. It
provides model for living. It also creates ideas and values beneficial for
human life. It can help the young generation to become moral and civilized.
But Indian secularism is different from other country's secularism. So it is
need to study the Concept of Secularism and Role of Supreme Court of India
with special reference to Article 25 of Indian Constitution and to analyze the
pivotal role played by the Supreme Court of India in upholding the concept
of secularism. Indian Constitution has provided the religious freedom to
each and every citizen of India. In India religion is a matter of personal
liberty one can convert from faith to another faith without any hurdle.
According to H. V. Kamath a Prominent member of drafting committee said
that "A secular state is a neither a Godless State nor an Irreligious State or
Anti-religious State." It means the citizens can follow their religion. And
court will decide the freedom religion. Apex Court in His Holiness Srimad
7
Perarulala Ethiraja Ramanuja Ieeyer Swami v. State of Tamil Nadu 1 held
that what constitutes an essential part of religion or religious practice has to
be decided by the Court with reference to the doctrines of particular and
include practices which are regarded by the community as part of its
religion. The freedom provided under Indian Constitution is not absolute or
uncontrolled. But they are subject to reasonable restrictions on freedom of
religion on the ground of public order, morality, and health and other
provisions of part III of Indian Constitution. In Moulana Mufti Sayeed
Mohammad Noorur Rehman Barkariq V. state West Bengal2, Where the
Calcutta High Court held that a restriction imposed by the State on use of
microphones and loudspeaker at the time of Azan is not violation of Article
of Indian Constitution. The Court will decide the contours of religious
freedom as Supreme Court in Acharya Jagdhishwaranand Avdhut v.
Commissioner of police, Calcutta3, observed that performance of tandava
Dance at public place with lethal weapons was not considered as essential
religious practice of Anand Margi's. The State can intervene in the religious
freedom of citizens on the ground of secular activity, Economical Activity as
in Adithayan v. Travancore Devaswom Board4, Supreme Court has upheld
1
AIR 1922 SC 1586
2
AIR 1999 Cal 15
3
AIR 1984 4 SCC 522
4
AIR 2002 SCC 123,124
8
the appointment of non Brahmin to perform the puja and other religious rites
in Shiva Temple. Apex Court observed in Mohd. Hanif Qureshi v. State of
Bihar5, the cow sacrifice has been held not to be an obligatory or essential
practice on Bakr-Id day. The Court opined that according to hadaya it is
optional for Muslim to sacrifice a goat or camel, so they can not allowed
sacrificing cow. Though the religion is matter of personal faith still the state
can impose reasonable restrictions as in Guruleen Kour v. State of Punjab6,
where the Bench High Court, held that keeping unshorn hair is essential
component of Sikh religion. Therefore rule by which admission was denied
to a male student who had shorn hair and female student who had plucked
her eyebrows was upheld. The secular activity of government is exception to
the freedom of religion in Aruna Rai v. Union of India7, Supreme Upheld the
national Curricular framework for Secondary education (NCFSE) rejecting
the contention that it was an attempt to saffronize education by BJP lead
NDA government. It is the duty of Court to travel in the integral philosophy
of religion and find out the essential requirements for a religion as Supreme
Court in State of Bombay v. I. B. Mali8, where a petitioner contended lord
Krishna were having 16108 wives and hence it is a part and parcel of Hindu
5
AIR 1958 SC 731
6
C.W.P No.14859 of 2008 decided on 30.05.2009
7
AIR 2002 SC 2773,
8
AIR 1952 Bom. 84
9
religion. A second marriage by Hindu male in the presence of his first wife
does not constitute integral part of Hindu religion. As Supreme in R. M. K.
Singh v. State of Bihar9, the Court held that Shradha and Pinda is integral
part of Hindu religion. The State can interfere in the economic activities of
religion and it will not infringe the Article e 25 of Indian Constitution. As
Supreme Court held in Shri Jagadnath Puri Management Committee v.
Chintamani10, where the right of temple attendants to be given a share of
offerings to the deity in the temple is not part of religion and collection and
distribution of these offerings among temple sevakas is purely a secular
activity. There is personal liberty to citizen to procreate the children's
according to their will and wish still State can intervene in the very private
affairs of individual as it was held in Javed v. State of Haryana11, the
Supreme Court held that the section 175(11) (q) of Haryana Panchayati Raj
Act lgg4, which disqualifies the persons having more than two children from
Contesting the election for the post of SARPANCH and PANCH in
Panchayat does not violet Article 25 of Indian Constitution. There is state
neutrality in the matters of religion. Supreme Court of India has to decide
from time to time the limitations of freedom. Supreme Court is playing very
9
AIR 1976 Pat. 198
10
AIR 1997 SC 3839,
11
AIR 2003 SC 3057,
10
vital role and deciding under what circumstances citizens can exercise their
freedom. Supreme Court of India is a final interpreter of Indian constitution
and due to such position it can determines horizons of freedom of religion.
Religion plays vital role in person's life of Human beings. It is the duty of
state to protect the freedom of citizens. This is the significance of present
study.
1.3 Objectives of Study:
The basic object of present study it to examine the role of Supreme Court of
India in the area of Freedom of religion and up to what extent this freedom is
available to citizens. Following are the objectives of the study.
 To determine the Role of Supreme court of India in the area of
secularism and freedom of religion.
 To analyze the power of Supreme Court of India in interpreting
freedom of religion and maintenance of secularism.
 To define the contours of secularism and religious freedom in India.
 To define the limits and extent of secularism and freedom of religion
of Indian citizens.
11
1.4 Scope of Research:
Present research is going to be conducted to determine concept of secularism
and the limitations of religious freedom. The Article 25 to 28 of Indian
constitution deals with religious freedom of citizens. The Interpretation of
Articles by the Apex court of India to determine the reasonable restrictions.
Present Research is going to be conducted to determine the religious
freedom guaranteed under Indian constitution Therefore to describe the
scope of research problem researcher is going to refer various documents
articles from journals on implementation of Religious freedom and to trace
out the instances of reasonable Restrictions on religious freedom as provides
by the provisions of India Constitution. The researcher is referring,
constitution of India, various amendments under Indian constitution, to
analyze the judgments of Supreme Court on Religious freedom and
Reasonable restrictions. Therefore to conduct present Doctrinal Research the
Researcher is going to refer various documents-primary and secondary,
various reports on Directive principles, various articles published in journals,
news papers and the online information available on various websites.
12
1.5 Hypothesis
I. Supreme Court determines contours of secularism and religious freedoms
of persons.
II. Religious freedom is subject to reasonable restrictions and the concept of
Secularism.
III. Religious freedom is subject to rights of others.
1.6 Research Methodology:
The researcher has adopted Doctrinal Research methodology for conducting
the present research. The present research problem needs to be analyzed
with the help of Library and the most of documents on such problem; on this
topic many authors have expressed their views. So for this purpose
researcher selects the doctrinal method. The judgments of Supreme Court
and various High courts are also needs to be studied.
The doctrinal research involves analysis of case laws arranging,
ordering and system systematizing legal propositions. The Acts of
parliament and the Acts passed by original sources of Law fall under this
category of Legislations. The case laws decided by the Supreme Court and
High courts, which are binding on Lower courts, fall under the category of
precedent. The doctrinal research attempts to verify the problem by first
13
hand study of authoritative sources. A doctrinal researcher uses the Law
Library mostly depends on Law Library. The sources of data for doctrinal
researcher are reports of Appellate court and conventional Legal Theory.
1.7 Literature Review:
The Researcher adopted the doctrinal research methodology for that
purposes it is necessary to study the judgments of Supreme Court of India
and respective high courts of the state. It is also necessary to study the
various enactments by the parliament of India and several of policies of
Government of India freedom of religion. The researcher also studied the
international as well as municipal provisions about the concept of freedom
of religion under Indian Constitution.
As we adopted the democratic form of government liberty to persons has
significant role to play for individual development. Freedom of religion is
one of such liberty granted to everybody. We use to follow secular form of
government means there is no official religion of as such. Religion is a
matter of personal beliefs and faiths. Our constitution is secular in nature and
in S.R. Bommai’s12 case Supreme Court of India held that secularism is basic
12
AIR 1994 SC 1918
14
stricture of Indian constitution. The present research is undertaken by
research to analysis the role of Supreme Court of India in the arena of
freedom of individual and secular nature of constitution. The adopted
doctrinal research methodology and hence gone through primary and
secondary data to complete this research work.
1. Constituent Assembly Debates:

Indian constitution is Suprema Lex it means supreme law of land. This
document is created by the constituent assembly of India; each and every
word of constitution is debated and inserted in Indian constitution. The
constituent assembly of India inserted freedom of religion to all but state that
such freedom is not absolute but with reasonable restrictions. Freedom of
religion of person is discussed as well as interference of state is defined
under Article 25 of Indian constitution.
2. Law and Social Pluralism by Shimon Shetreet LexisNexis

Butterworths
This book is a comparative study of freedom of religion and secularism
India and Israeli. It emphasized on various aspects of freedom of religion in
democratic countries. If a state is democratic in nature then it shall follow
the concept of secularism, because population may be hydrogenous multi
lingual and multi religious so law is an important tool to control between
both' It highlighted the secularism in its strict manner. The judiciary should
be central role in these matters because whenever there will be a dispute
regarding freedom of religion and secularism. "Courts have an essential role
15
in society in protecting fundamental human rights. The legislature is under

strong political pressure to introduce changes of favorable to human rights.
The judiciary has an important role in every society, but even an important
role in a multicultural society,13
3: Pluralism and Equality values in Indian Society and politics14.
The present book published is a landmark textual contribution in the area of
plural societies and role of state. A workshop was held at Neemrana Fort
Palace, Rajastan, between 5th to 8th March 1999. This workshop was
conducted for intercultural and interreligious dialogue. It also emphasized on
values of cultural in Europe and India. India is among very few countries of
the world where all the major religions of the world are practiced today,
rather have been practiced historically for centuries The unity and diversity
is characteristic of Indian constitution hence it is necessary to protect such
nature with great efforts.
4. Laws of India on Religion and Religious Affairs15
Tahir Mahmood is a well known scholar, who has contributed in religious
freedom in India and secular character of India Constitution. This book
consists of various laws passed by union as well as state legislatures which
directly or indirectly deal with freedom of religion of individuals. It also
13
Shetreet Shimon, Law and Social Pluralism LexisNexix ISBN 81-8038-003-3 P.17
14
Ahmad Imtiaz, & Ghosh Partha, Pluralism and Equality values in Indian Society and politics Helmut
Reifeld Sage Publications, New Delhi ISBN 81-7036_956-8 P.177
15
Mahmood Tahir Prof. Laws of India on Religion and Religious Affairs, Universal Law Publishing
House Co., New Delhi ISBN 978-81-7534-659-8
16
stress on communal harmony and unity and integrity of nation. It also
provides checks and balances on state power to observe equality among the
equals' Religion has been a powerful social factor in all phases of human
history and all parts of human world16.
5. Constitutional Law of India17
This book is a well-known critical of the book on Indian Constitution. The
Author of book H.M. Seervai is a renowned constitutional law practitioner
before the Supreme Court of India and respective High Courts of the States.
In Volume No II fourth Edition Reprinted 2008 from page no. 1 259 to l30g
devoted to freedom of religion guaranteed under part III of Indian
Constitution i.e. Article 25 to Article 28. The Author criticized the Indian
judiciary for not following the constitutional mandate. He stated that Article
25 clause 2 and Article 27 and 28 are facets of secularism.
6. Legal Theory, W. Friedman18
The present book is master piece of work by Famous jurist Dr. W. Friedman
who had contributed in building the foundation of legal theory and
jurisprudence. In this book from p-398 to page number 435 deals with legal
16
Mahmood Tahir Prof, Law of India on Religion and Religious Affairs. Universal law publishing House
co, New Delhi ISBN 978-81-7534-659-8 p.l
17
Seervai H.M. , universal law Publishing House Co., New Delhi, vol-II Fourth Edition ISBN 978-81- 7534-
403-7
18
Friedman W. Legal Theory, Universal law Publishing House co. New Delhi , First Indian Reprint 1999
ISBN -g 175 34-1444-7
17
values of modern democracy where he explained the concept of individual
freedom in following words "the beliefs and thoughts that guide the legal
philosophies of socialism, fascism and Catholicism are based on certain
clear cut and essentiality single principles.
7. Religious Freedom and Secularism: Theory and practice19
This is an edited book by S Sudarshan. This book is a comparative Study
between India and other nations. According to S Sudarshan, Religious
freedom is basic inalienable human right and symbol of mature society. It
allows the individual to maintain specific divine relationship with the
supernatural power. Liberty is endowed with the individual to worship the
god of his own choice. The Religious freedom involves the right to profess,
preach, practice, and prop agate any religious faith according to his
conviction. Now it is fundamental right guaranteed to all the
Citizens/religious groups in most of the democratic countries throughout the
world' the religious freedom is very popular in secular countries. Theocratic
states also allowing religious freedom in addition to official religion of their
own. There the people of other religion are allowed to observe their own
religious practices. However the freedom is limited when compared to
secular nations. Religious freedom is not absolute right and is limited with
19
Religious Freedom and Secularism: Theory and practice Amicus books, The Icfai university Press,
Hyderabad, First Indian 2007, ISBN -81-314-1372-1.
18
certain restrictions in larger interest of society. Every Citizen is expected to
enjoy this freedom with certain reasonable limits. If any individual /religious
groups transgress the religious freedom of persons of other religious faith,
the state instantly intervenes to take steps to ensure a serene social
environment. Thus the modern governments are playing balanced role by
ensuring the religious freedom to all and following a policy of secularism."
8. Constitutional Justice and Judicial process20
This book is edited by Madabhushi Shridhar and forwarded by justice V. R.
Krishna Iyer. This book primarily explains the concept of law, justice and
society. Form page number 45 to 49 deals with constitution, secularism and
religious freedom. It elaborates religious values and human values under
Indian Constitution. It States that the State protects and promotes indirectly
legitimate genuine spiritual practices of all religions without discrimination.
Hence one can say that healthy reasonable progressive equation between
State and religion is arrived at through Constitutional and legal system in
India.
20
Shridhar Madabhushi Professor, Asia Law House, Hyderabad, First Edition 2014, ISBN 978-81-928563- 8-
4
19
9. Independence of Mind, Timothy Macklinle21
This book deals with the concept of liberty and its various forms like
freedom of expression, privacy and liberty, conscience and rational
personality. Under chapter of this book reason and religion are discussed in
widest since with a psychological perspective.
10. Democracy and Human Rights and The Rule of Law22
This book is an edited book by Venkat Iyer. It contains 1l essays in the
honor of Nani Palkhiwaia. The 8th essay of book is devoted to distortion of
Secularism by M.V. Kamath, who was Constituent Advisor. He elaborated
Secularism and various existing religions and their respective practices. It
describes various incidents which hamper the secular character of Indian
Constitution.
11. Supreme Court on constitution of India, N.K. Acharya23.
This is a reference book by N.K. Acharya. It contains Role of Supreme
Court of India in interpretation of Various Articles of Indian Constitution.
From page number 497 to 410, it provides plethora judgments of Supreme
21
Timothy Macklinle Independence of Mind, Oxford university Press, New York, First Edition 2006, ISBN-
978-0-19-920803-6
22
Iyer Venkat, Democracy and Human Rights and The Rule of Law Butterworths India, New Delhi,
first Edition 200, ISBN-81-87162-18-X
23
Acharya N.K. Supreme Court on constitution of India Asia Law House Hyderabad, First Edition 2012,
ISBN-978-93-8113-80-6
20
Court of India on freedom of Religion and rights of minorities guaranteed
under Article 25 to 30 of Indian Constitution.
1.8 Scheme of Cauterization:
The researcher framed the title of the research and formed certain tests in the
form of hypothesis. To study the secularism and freedom of religion under
Indian Constitution and role of Supreme Court of India, the researcher has
prepared the following scheme of Cauterization.
1: Introduction.
The first chapter deals with Introduction to research problem. The researcher
has traced out the Conceptual perspective of secularism and freedom of
religion under Indian Constitution.
2: Concept of Secularism:
In second chapter researcher has elaborated and analyzed the concept of
secularism minutely. According to Chairman of drafting of Indian
Constitution secularism means, "We can abolish the religion, it does take
into consideration the religious sentiments of the people or Parliament shall
not be competent to impose any particular religion up on the people".
Religion means binding moral principles and the ways of worship generally
followed by a community into their day-to-day life.
21
3: Concept of Religion and Essence of freedom of Religion:
The third chapter deals with concept religion under Indian scenario. Religion
is a system of belief symbols, vales and certain moral principles which are
binding on a defined community which is generally in the search of ultimate
solution of ultimate truth.
4: constitutional perspective of freedom of religion and Secularism.
The Forth chapter of present research is about the study of concept of
secularism and Freedom of religion
Article 25 of Indian Constitution: - Freedom of conscience and free
profession, practice and propagation of religion subject to public order
morality and health and to the other provision of this part, all persons are
equally entitled to freedom of conscience and the freely to profess practice
and propagate religion.
5: Freedom of Religion and Secularism'
The fifth Chapter is devoted to systematic study of Part III of Indian
Constitution and with special reference to Article 25 and concept of
secularism under Indian Constitution.
22
6: Role of Supreme court of India in shaping Religious freedom and
Secularism:
The sixth chapter is related to Role of Supreme Court in maintenance of
secularism and enforcement of freedom of religion in Indian scenario. It is
necessary to study the microscopic view of Supreme Court of India to
maintain India as secular Country. In present chapter the researcher has
studied minutely the decisions of delivered by the Supreme Court of India
and the attitude of Supreme Court for the enforcement secularism and
religious freedom.
7: Conclusions and Suggestions. The researcher arrived to conclusions and
made suggestions which will be the sweet fruits of the present research
study.
23
Introduction:
Multiculturalism denotes plurality of faith and belief in a specific
territory. It is fundamental characteristic of Indian social democracy. One
important issue concerns the distinction between multiculturalism and what
may be called plural monoculturalism? Does the existence of a diversity of
cultures, which pass each other like ship in the night, count as a successful
case of multiculturalism?24 Freedom of religion is a sacrosanct liberty
provided by Part III of Indian constitution. Again in free democracies it is a
matter of free choice for an adult person whether to belong to any religion or
not. He may not believe in any religion or he may change his religion. But
the membership of a religion inevitably limits the freedom he would have
enjoyed if had not belonged to any religion 25. We also adopted the concept
secularism under Indian constitution, though the world secular added in
1976. The nature of Indian constitution was secular for very inception of
Indian constitution. Freedom of religion and secularism are antonymous to
each other but still makers of Indian constitution nicely clubbed two
concepts to in such a way to achieve harmonious and peaceful coexistence in
the nation. Freedom of religion and secularism are not defined under Indian
24
Sen, Amartya Identity and Violence the Illusion of Diversity Penguin Books London, ISBN 978-0-713-
99938-9 Page No. 156
25
Seervai H.M., Constitutional Law of India, Universal Law Publishing Co.pvt. Ltd. Vol. 2 Reprint 2008
ISBN: 978-81-7534-403-7 Page No. 272
24
constitution hence it triggered the significance of judicial interpretation to
solve many disputing situations. The role of judiciary in country like India is
very vital as there is always tussle between the freedom of religion and
secularism. Secularism can be defined as neutrality of state regarding
religious matters. It is expected in secularism country like India that religion
will not interfere in temporal powers of the state and state will provide at
most liberty to religion to practice it without any hurdle.
Constitutional Provisions
As we know that India is secular country still it provides religious freedom.
Article 25 to 28 of Indian constitution devoted to Religious freedom of
Indian citizens. Freedom of conscience is fundamental of right of person
under which any religious faith can be practiced, professed, and propagated.
This freedom is subject to public order, morality, and health. Indian
constitution is world’s best constitution to have such liberal provisions. In
order to keep society cohesive, religious liberty is necessary 26. Part III forms
Article 25 to 30 are totally devoted to freedom of conscience Article 25
merely protects the freedom of religion to practice rituals and ceremonies
etc. which are integral parts of the religion. A disposition towards making
26
Shetreet Shimon, Law and Social Pluralism, Lexis Nexis Butterworths, New Delhi ISBN: 81-8038-003-3
P.10
25
gift for charitable or religious purpose may be a pious act of a person but the
same cannot be said to be an integral part of any religion27.
Preamble of Indian Constitution:
Preamble is introduction to Indian constitution it plays vital role in
interpretation of provisions of constitution. The secular world secular was
absent in original constitution and formally it was incorporated in 1976 by
forty second amendment. The concept of secularism was not defined under
constitution it empowers judiciary to interpret it as situation demands.
Article 25 of Indian Constitution:
Constitution is a sacrosanct legal document created by the mutual
understanding of the people. It is will of people in which way they wants to
live their life. There are several provisions under Indian constitution which
empowers to practice religion as fundamental right. Mere entries in
telephone application & voters list cannot be the sole ground for proving that
the applicant is professing Christianity28.
Freedom of conscience and free profession, practice and propagation of
religion-
27
Bakshi P.M., The Constitution of India, Universal Law Publishing co New Delhi, xii edition ISBN: 978-93-
5035-290-8 Page. No. 75
28
Bakshi P.M., The Constitution of India, Universal Law Publishing co New Delhi, xii edition ISBN: 978-93-
5035-290-8 Page. No. 76
26
I: subject to public order morality and health and to the other provision of
this part, all persons are equally entitled to freedom of conscience and the
freely to profess practice and propagate religion.
II: Nothing in this Article shall affect the operation of any existing law or
prevent the state from making any law - regulating or restricting any
economic, financial political or other secular activity which may be
associated with religious practice; providing for social welfare and reform or
throwing open of Hindu religious institutions of public character to all
classes and sections of Hindus.
Article 44 of Indian Constitution:
Uniform civil code for citizens. - The State shall end endeavor to
secure for the citizens a uniform civil code throughout the territory of India.
Concept of Secularism
There was a well known tussle between spiritual and temporal power
between state and church, according to English model of secularism power
of church and state differentiate from one another and each shall not
interfere in either's working. One sward moreover, ought to be under the
other and temporal authority to be subjected to the spiritual.... Both swards
are in the power of church, the one by the hand of priest29, Secularism as we
29
Ebenstein, Great political Thinker Oxford and IBH3rd Edition 1969 p. 257-258
27
know today is a philosophy of state not to provide nay supremacy of religion
in sate matters. This is philosophy bifurcates the temporal and spiritual
powers. It is expedient to know the concept of secularism in India. Ideas like
secularism can’t be held as a dividing tool but it is a collection of abstracts,
philosophical and lofty principles of statehood because of the purpose for
which it has been introduced in the constitution. Constitutions are made for
creation of a collective identity but not for divide policy30. Secularism in its
literal sense means complete neutrality of state in the matters of religion.
The Concise Oxford Dictionary states that the word 'secular' is concerned
with the affairs of the world, worldly not sacred, not monastic, not
ecclesiastical, temporal, profane, lay. The Encyclopedia Britannica says the
word 'secular' means: non-spiritual, having no concern with religion or
spiritual matters. Structural Characteristics of Secularism If secularism has
to be a process of overall31. Secularism is an idealism followed by any
democratic state. The notion of secularism as west model is not followed in
India because Indian secularism is unique one.
The state is empowered to interfere in the matters of religion when religion
tries to overreach secularism notion. The power of this secularized type of
30
Vol. II – Issue 3 ISSN 2278-6996 B.L.R p.413 (2014)
31
Hassan Rajib Ph.D Scholar, Lecturer'. Haldia Law College. Haldia Voice of Research Vol. 3, Issue 1
June 2014 ISSN 2277-7733 p.67
28
idealism derives in large part from its close connection with science and in
this union of social and scientific secularism the movement which since the
middle age has been gathering momentum finds its logical climax 32.
Secularism is most controversial concept under Indian condition because
there is dispute which model of secularism India is following. What is the
fate of Indian secularism? What are the secular principles followed in India
it needed judicial interpretation and scrutiny. It is very much necessary to
separate the spiritual and temporal powers for better tomorrow.
Secularism and the Constituent Assembly Debates:
When Indian constitution was drafted the word 'secular' was not deliberately
included under Indian constitution. The basic reason behind such omission
is that constitution makers intentionally avoided inserting world secular
under Indian constitution to avoid implications the anti-religious overtone
associated with the doctrine of secularism. Due to this word secular was not
inserted under Indian constitution.
Secularism in United State of America:
The original American constitution is unaware about the freedom of religion
and secularism. American constitution was amended by first constitution
amendment Act and in this way America become first official secular state. I
32
Groethuysem, B, Secularism in Encyclopedia of the Social science 1962 Macmillan Company New York
P.l3
29
contemplate with sovereign reverence that act of the whole American people
which declared that their legislature should "make no law respecting an
establishment of religion or prohibiting free exercise thereof thus building a
wall of separation between church and the state"33
The role of judiciary is not satisfactory to adhere the concept of secularism
because many decisions make it clear that some sort of religious interfere is
allowed in state affairs and vice versa. The judiciary is empowered to
interpret the first amendment to such an extent to keep church and state
away from each other.
Secularism in United Kingdom:
The position of secularism in England is very much different form United
States of America and India. In ancient England the decision of church were
final and binding on state. The church was in strong capacity to give
directions to the state. It is asserts by the state temporal and spiritual powers
are derived from God or almighty itself and hence church can make binding
decisions on state.
33
Jeff Works. 113, quoted by Waite G.1. in George Reynolds v. United States 98 US 145. 164
(1878)
30
The present scenario is reversed and King/Queen is head of church and
direction can b given by the state to church. The secularism in England
which follow model of religious interfere in the administration of the
country. The priests can hold many positions in state departments.
Indian Secularism:
The concept of secularism followed in India is different model of
secularism form western countries. Indian constitution declares India as
secular state hence there is no official religion of India. . India’s Constitution
is somewhat unique in that instead of reflecting India’s society, one of its
main aims was and still is t shape Indian society and to bring around social
reform. Indeed freedom of religion has been limited in certain cases34. The
state cannot declare any religion as state sponsored religion nor shall
discriminate among the religion and religious denomination. The state was
barred from discriminating among Indians on the ground of religion.
Religious freedom is available to all subject to secularism concept followed
in India. The Indian secularism is criticized sudo secularism means it is only
to appease to minorities in India. It is the duty of majority to protect the
religious minorities in India. It is also said that secularism is not followed in
34
Shetreet Shimon & Chodosh Hiram E., Uniform Civil Code, Oxford University Press 1st edition 2015 ISBN:
978-0-19-807712-1 Page No. 27.
31
India in letter and spirit. Article 25 clause 2 sub clause (b) provides that state
can interfere in the matters of religion on the basis economic and secular
activity of the religious denomination. The social reforms are yet another
ground on which state can interfere in the religious matters of individual.
Freedom of Religion
Freedom of religion is required to have a faith in some super human power
or almighty or creator of this world. Every religion has own stories of
inception of human beings on this earth. Religious freedom is essential for
inner satisfaction. Religion is code of ethical rules and also means rituals,
observations, ceremonies, and modes of worship, which are its outer
manifestations. It can be identified with feelings, emotions, sentiments,
instincts, perception, conscience, and belief, or faith 35.This concept of
conscience, belief, faith and worship is varying from person to person.
Religion is matter of individual choice and it shall not be compelled by
external force. Indian constitution gives freedom or religion as fundamental
right to every person. True religion is the foundation of society, the basis on
which all true civil Governments rests, and both sanctions36. Article 25 is
the reservoir of freedom of religion in India. It provides liberty to profess,
practice, and propagate any religion as per the choice of individual. If any
35
Radhakrishnan. Sarvapalli Dr, An Ideal View of Life Chapter III, Page No.84
36
Ambedkar Babasaheb Dr, Annihilation of Caste with Reply to Mahatma Gandhi Secretary, Higher &
Technical Education Department Government of Maharashtra 14 April 2014, page no. 52
32
freedom conferred by part III of Indian constitution is infringe by the state or
individual then aggravated party can knock the doors of judiciary.
Essence of Freedom of Religion:
What is the importance of religion in person life? Whether to believe in
religion is compulsory? Why a religion has dominancy over individual?
Answers to above mentioned question don’t have tailor-made answers
because, it is highly impossible to tress the grounds of religious belief. It is
the individual choice to have or haven’t belief in religion. It is the inner
conscience of person which drags him to have belief on particular religion.
This important freedom is guaranteed under Indian constitution. The
fundamental object of any religion is to organize the individuals under one
umbrella and inculcate the concept of common brotherhood under the
philosophy of any religion.
Freedom of religion and freedom from religion are always discussed any
times. Freedom from religion means liberty not to believe in any particular
religion. A person is allowed not have belief and faith in particular religion.
If a person can enjoy the fruits of religion as per the choice of person, and if
he/she wants change belief, faith and can convert another religion.
If a person wants to follow the doctrines of any religion then it is free. When
he professes any religion then he must follow essential or integral part of
33
religion. When an individual rejects basic tenants of any religion then he
may not called follower of any specified religion. In Gurlen Kaur v. State of
Punjab, Supreme Court held that it is the duty of follower of religion to
follow all the basic modes prescribed by the religion. In this case a Sikh girl
was dined admission to religious institution run exclusively for Sikh
minorities. The girl trimmed her eyebrows which are against the Sikh
religion because it is the duty of all followers to keep unshorn hairs. This
rule was not followed hence she was denied admission in religious
institution. The religion can prescribe code of conduct for its followers. The
behavior of religious person can be controlled and a pacific mode may be
prescribed. Jaina religion follows strict vegetarianism and majority follows it
as religious rite or ritual. Non vegetarian items or food is strictly prohibited
in their day to day life. The concept of non violence is followed in its
extreme sense. There is a tussle between Christian, Jews and Islam on
Jerusalem a holy place treated as sacred place for all these religions. There is
a constant claim of religion on this place and due to this there is a bloodshed
going on till today in the name of religion. Religion can motivated to
followers to commit violence also and many religions are justifying their
immoral and anti religion acts. Freedom of religion shall be exercised with
care and not to violate the rights of others religious feeling.
34
Spiritual development and prosperity of individual is the prime object
any religion. The satisfaction is outcome of religious faith and belief and
same cannot count through any measure. Whenever an individual is
exercising religion it shall not violate rights guaranteed to other religion.
Indian secularism is the best example secularism in the world because
secular Indian constitution provides freedom of religion to all. This right has
made fundamental right enforceable against the state and in some cases
against the private individual
It is expedient to know what is mean by religion. Various religions
have provided different definitions of religion but there is uniformity among
them. Hence we must know what is expected to Supreme Court. The apex
court of India is the ultimate interpreted of Indian constitution. Whenever a
freedom of religion is violated then party must file writ petition for
enforcement of fundamental right. The Supreme Court of India
In a very famous landmark case in Commissioner of Hindu Religious
Endowment, Madras v. Lakshmindra Tirtha Swamiar of Shri Shirur Mutt37,
Supreme Court of India held that freedom of religion can’t be taken away
because religion is very much personal faith and belief. Apex court also held
that God is not essential requirement of any religion. There are religions
37
AIR 1954 SC 282
35
which are not believed in the God or almighty. This Judicial interpretation
permits to have faith in none. As we know that every religion is worship
some God if we apply this judgment then it is possible that atheists who do
not believe God religion certainly follow a religion, which does not believe
in God. Hence this judgment contributes significant contribution that God is
not precedent requirement of God.
In Mohd. Hanif Qureshi v. State of Bihar38 case apex court of India was
dealing with constitutional validity of total ban cow slaughter in India.
While delivering landmark judgment court held that there are certain
principles of religion which constitutes essential part of that religion. The
question may arise regarding what is essential for religion or integral part of
religion? The answer is that the Judiciary will deice the integral part of
religion as and when required. The court may examine the customs or
traditions of religion on the basis of its holy scriptures or other reliable
sources of that particular religion.
Freedom of Religion in United States of America:
American democracy is the oldest democracy in the world. It
constitution was came in to existence in 1793. The first constitution
amendment was inserted under American constitution to provide freedom of
38
AIR 1958 SC 731.
36
religion as per the amendment congress shall not establish any religion of its
own. The state shall not impose any religion on citizen and they are free to
exercise. In Everson v. Board of Education39 the Apex court of India held
neither a state nor the federal government can set up a church or religion.
Freedom of Religion in England (United Kingdom)
The church and state has under controversy regarding use of powers
and who should be under whose control. Initially church establishes
supremacy over the church. The church claimed authority to give directions
to state rather it was made compulsory to obtain aid and advice for the
church. The spiritual and temporal powers were equal still upper hand was
given to churches. The present situation is exactly opposite and Queen of
England is head of the Church of England and churches are under the control
of state. All persons shall enjoy full liberty of conscience and the free
exercise of their forms of worship, subject only to the maintenance of public
order and morals40.
39
330 U.S.I. (1947 )
40
The King’s order in Council 1922 Art. 17 (1) (a)
37
Freedom or Religion in India
Religion is not in doctrines in dogmas, nor in intellectual
argumentation; it is being and becoming, it is realization 41.While exercising
freedom of religion persons must be aware of the right of others. It is
observed that whenever religion is practiced it shall not disturb or create
nuisance. The freedom of religion guaranteed under Indian constitution is
subject to the right of others. In Church of God (Full Gospell) in India v.
K.K.R. Majestic Colony Welfare Association42 court was having a close look
at religious freedom of person provided by Article 25 of Indian constitution.
It was the routine of church that to sung prayers for that purpose they fixed a
loudspeaker outside the church so that people can understand that prayers
are going on. It was distributing to neighbors because it was residential area.
Petitioners claimed that it is the fundamental right of church to sung prayers
and they never crossed permissible level of noise pollution. The apex court
of India held that it is volition of right to sleep as part and parcel of Article
21 of Indian constitution held that use of loudspeakers in not essential part of
freedom of religion guaranteed to persons. This kind of freedom of religion
is not expected to Article 25 of Indian constitution.
41
Sen, Gautam The Mind of Swami Vivekananda, 19th Edition 2008 page. no 536
42
AIR 2000 SC 2773.
38
In yet another trend setting judgment Acharya Jagdhishwaranand
Avdhut v. Commissioner of Police, Calcutta43, the petitioners in this were
restrained from conducting procession on Public Street carrying sharp
weapons in their hands. The petitioners in this case claimed that freedom of
religion is available them under Article 25 of constitution. The court held
that freedom of religion exercised and same is creating law and order
situation then such practice of religion is not permissible. The court evolved
a very basic principle that freedom of religion can be curtailed when it
hampers the public order.
In Narendra v. State of Gujarat44 apex court was encountered with a
question,
As per article 26 of constitution the religious denominations can
establish religious institutions. The movable and immovable property can be
acquired by the religious institutions. In this case Gujarat government passed
ceiling on holding of Agriculture land Act and property was acquired ad
declared as surplus. This Act was challenged as violative to freedom of
religion. Apex court of India held that Act is valid and ceiling on holding
land is applicable to religious institutions and freedom of religion is not
available in is area.
43
AIR 1984 SC 5
44
AIR 1974 SC 2092
39
In Sarala Mudgal's case45 this case was trend setting decision of apex
court of India. A person was converted to Islam for taking the benefit of
bigamy i.e. A Muslim can marry up to four wives and protection is provided
under Muslim personal law. It was a colorable conversion to take undue
advantage of Muslim personal law. Section 494 of Indian Penal Code 1860
provided that “Marrying again during lifetime of husband or wife. Whoever,
having a husband or wife living, marries in any case in which such marriage
is void by reason of its taking place during the life of such husband or wife,
shall be punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine.
Supreme Court of India held that he is guilty under section 494 of
Indian constitution and very important observation was made regarding
Uniform Civil Code for all without any discrimination. Justice Kuldeep
Singh state that Article 44 remained as dead letters of law and directed
central government to have fresh look at Article 44 of Indian constitution.
The nexus between Freedom of Religion and Secularism
The constitution of India provided detailed provisions about freedom of
religion. Amendment provided under Indian constitution but certain parts
cannot be amended. This doctrine of basic stricture was evolved by top court
45
AIR 1995 SC 1531
40
of India in Keshwanand Bharti’s case court declare features of constitution
as basic structure.
In S.R. Bommai v. State of Kerala46 Supreme Court of India held that
secularism is a basic structure of Indian constitution. It means neutrality in
the matters of religion will remain as stance of state. The state cannot
declare official religion of India as a state sponsor religion, now it is part and
parcel of Indian constitution hence out of reach of parliament.
Legislative action in shaping freedom of Religion and Secularism:
Legislature is one of the most vital pillars of democracy; it represents
the will and wish of millions. It is the duty of legislatress to legislate for the
betterment of public at large; the representation must be used for true
presentation purpose. Secularism is held as basic structure of Indian
constitution it is the duty of state to protect the secular characteristics of
Indian constitution.
Acquisition of Certain Area of Ayodha Act 1993:
After the demolition of Babri mosque at Ayodha in 199, the violence broke
out through the. The civil cases are pending before the courts. It was
necessary to interfere in the matter to maintain status quo in the matter. The
parliament of India enacted this law and acquired the land till final judgment
46
AIR 1994 SC 1918.
41
will not come out. Definitely it was state interfere in the matter of Hindu and
Islam religion. This interfere was challenged in Ismail Farooqui case where
Supreme Court of India upheld the constitutional validity of Act. Public
order is exception to freedom of religion in this incident there was a great
threat to public order, unity and integrity of nation.
The Dargah Khwaja Saheb Act 1 955:
Ajmer is a district in Rajastan there is a Khwaja Garib Nawaz saheb
Dargah. It is very famous among all the religion people in India. It is
symbol of unity and integrity of nation. The state government of Rajastan
passed this law to regulate secular administration of Dargah. It was declared
as valid and constitutional, court held that though interfere in religious
matter but till secularism is basic structure of Indian constitution hence it is
the duty of state to protect it and can interfere in secular activities of Dargah.
In Dargah Committee, Ajmer v. Syed Husain Ali47 Supreme Court of India
held that the Act cannot be challenged as violation of Article 26 of Indian
constitution as the object of the Act is to administer the property which is
secular activity of the religion.
47
1962 1 SCR 383
42
Andhra Pradesh Devdasi Protection Act 1988:
The custom of sati was heinous tradition followed in the state of Andhara
Pradesh. Where married women after the death of her husband use to or
compel to go sati her husband. It was treated as most sacrosanct on earth.
After her death temple is built in that village. All these things were done as a
part and parcel of Hindu religion. This Act given challenge as infringement
of freedom of religion under constitution. The Supreme Court of India held
that Act is valid and constitutional as health of women is in danger, to
protect the health of women and ensure her dignified life this law was passed
and upheld by the judiciary.
Supreme Court as guardian of religious freedom and Secularism
Out of three organs of the judiciary is most important and supreme organ of
the state. We adopted the democratic form of government hence every organ
of the state is vital for successful governance. The most critical problem in
our legal system today is delay in justice48.
The judiciary is top adjudicatory authority in India. This organ is also called
as final interpreter of constitution and watch dog of fundamental rights of
persons. Freedom of religion and secularism are two contrasting terms are
used under Indian constitution. It is the prime duty of judiciary to protect the
48
Singhvi, L.M Dr. Evolution of Indian Judiciary, Ocean Books Pvt. Ltd. New Delhi, ISBN 978-81-8430-
127-4 Page No. 308
43
freedom of religion of individuals and maintain secularism in the country.
There were many contrasting situations came before judiciary, where
judiciary have to pick up one whether to protect individual liberty in the
form of freedom of religion. Constitution therefore seeks ensure state
neutrality in this area49. The judiciary is under massive pressure in deciding
such kind of cases. Rights are not absolute, and hence, nor is this right.
According to Prof. Raz, the limit of this right is the individual autonomy of
others50. The role played by judiciary is very important hence it is
necessary to see what kind of role played through various cases. Freedom of
religion is subject to following exceptions:
Public Order:
Maintenance of law and order situation in the society in the primary duty of
state, it shall restrict or prohibits situations which give rise to communal
disharmony. While exercising fundamental rights guaranteed under
constitution or practice of any religion crate or likely to create or disturb
public order in the society. The state is under duty to curb such activities.
There may arises question of freedom of religion or interference in religious
activities but for the sake of secular character of nation it is required to
reasonable interfere. The question is that what creates public order? How to
49
Vol. II – Issue 3 ISSN 2278-6996 B.L.R p.380 (2014)
50
Shetreet Shimon, Law and Social Pluralism Lexis Nexis Butterworths, New Delhi, ISBN: 81-8038-003-
3 Page No.26
44
tackle such situations? What are the measures to curb such situations? The
policy enshrined for freedom of religion under constitution is very much
clear; it states provisions under which state can take necessary steps.
Sometimes it is necessary to take hard and fast action to have effective
control to overcome such public order situations.
Morality:
Law and morality is a point of discussion since form ages. Whether
amorality can interfere in law and vice versa? What is the permissible
limitation for interference between secular laws of nation? Morality depends
on society and culture, as we are secularized in character our laws and its
enforcement must be in secular way. It can be defined as all manners, of
rules, standard, principles, or norms by which men regulate guide and
control their relationship with themselves and with others 51. Morality is
vague concept hence very time it may not be allowed to interfere. Moral
principles can be enforce but up to what extent? The judiciary shall decide
the matters as and when required. The apex court many times came across
such situation and handled it very tactfully. Thus no society can afford to
free murderer even with the consent of the victim nor can any societies
approve polygamy or polyandry, even if the parties to it have no objection.
51
Harding, A.L. Religion, Morality and Law, P. 28
45
Thus there are certain central areas where there is little scope for
disagreement but the same cannot be said about matters falling at the
periphery and therefore, each society, must have freedom to discuss them
and decide whether it would like to bring law into that area52.
Health:
The human activities have affect on health. Health is most important
aspect of for people of the country. State is under obligation to protect and
improve health of citizens. If the state is intervening in religious matters
which have effect human health then it is not violation of Article e 25 of
Indian constitution. In Nikhil Soni v. union of India & ors, dated10.8.2015, a
religious custom or traditions of Jaina named Santhara or Sallekhana was
declared as violation of right to life and personal liberty guaranteed under
constitution. Jaina religion is one of the ancient faith traditions of India. It is
distinct religion having its own identity53. Health was considered as at most
importance than religious freedom, religion may prescribe certain acts or
customs but it should be examine by judiciary. The judiciary will decide the
fate of such customs and traditions. In Jagdhishwaranand Avaduth’s case
apex court of India struck down the custom of tandava dance on Public
52
Singh, M.P. Outline of Indian Legal, & Constitutional History, Eights Edition, Universal Law Publishing
Co. New Delhi, ISBN: 978-81-7534-558-4 Page. No. 186
53
Mahmood Tahir Prof., Laws of India on Religion and Religious Affairs, Universal Law Publishing co.
edition 2008 ISBN: 978-81-7534-659-8 Page. No.124
46
Street, which carries lethal sharp weapons. It is pivotal to have a close
scrutiny by judiciary of each and every custom, tradition or mode of
worship.
Freedom of is most essential liberty to individual to profess, practice
and propagate any religion. It is a liberty of individual’s conscience, but it
shall not infringe the fundamental rights of public at large. Secularism is
followed in India to keep sate distance for all religions. Whichever of the
models is the better one, the constitution of India seems to have elected to
follow the model of neutrality. Article 15 forbids discrimination on the
ground of religion, race, caste, sex, or place of birth, while Article 44 seems
to be clear as it calls for a uniform civil code, thus proclaiming, one rule for
all54. Indian Supreme Court has nicely and strategically shaped the freedom
of religion in India. It was very super human task to shape Indian secularism
and protects the freedom of religion. Plethora of verdict of top court of India
has directed states to mold their actions or change the policy to ensure the
freedom of religion and in certain cases allowed state interference as and
when necessary. A constitution cannot secure fundamental rights by merely
making pious declarations. To make the promises of fundamental rights
54
Shetreet Shimon & Chodosh, Hiram E, Uniform Civil Code, Oxford University Press 1 st edition 2015
ISBN: 978-0-19-807712-1 Page No. 27.
47
enforceable a measure of judicial review is essential and indispensible55.
Hence it is ample clear that Supreme Court of India is protector of freedom
of religion and maintenance of secularism in India.
55
Singhvi. L.M. Dr, Evolution of Indian Judiciary, Ocean Books Pvt. Ltd. New Delhi, ISBN 978-81-8430-
127-4 Page No. 367
48

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“The concept of Secularism and Freedom of Religion: Role of Supreme Court of India With Special

Reference to Article 25 of Indian Constitution” An Analytical Study.

India is a secular country. Secularism means State neutrality in the matters

of religion, it means there is no official or sponsored religion of India like

Shri Lanka, where Buddhism is official religion. Pakistan is having Islam as

a national religion. Such sponsorship of religion is not available in India.

Indian constitution is the supreme law of land. It determines the Rights,

Duties, Liabilities, powers of persons and institutions. Part III of Indian

constitution is pivotal sector under Indian constitution. Fundamental Rights

Human life. India is a secular country it means there is no authenticates

religion of Government of India. Supreme Court of had played important

role in the maintenance of India as a secular nation. The religious freedom

uncontrolled freedom is not available to India citizens. This freedom is

Indian constitution. It means this freedom of religion can be curtailed under

1.1 Constitutional Provisions

The secular Indian Constitution provides religious freedom. Article 25 to 28

of Indian constitution devoted to Religious freedom. It means that the

and propagate any religion as per their choice. If there is a violation of

court then determines the contours of Religious freedom of citizens of India.

1: Preamble of Indian Constitution: - - Preamble of Indian Constitution is

key to read mind of makers of Indian Constitution. By 42"d Amendment Act

freedoms freedom of speech and expression is very important freedom.

Freedom of religion is also a part and parcel of freedom of speech and

Article 21 of Indian Constitution: - It is duty of state to protect life of the

protected. As provided in Article 39 of Indian Constitution.

Article 25 of Indian Constitution: - Freedom of conscience and free

profession, practice and propagation of religion-

freely to profess practice and propagate religion.

economic, financial political or other secular activity which may be

throwing open of Hindu religious institutions of public character to all

classes and sections of Hindus.

Explanation I: The wearing and carrying kripans shall be deemed to be

included in the profession of Sikh religion.

Explanation II : In sub-clause (b) of clause (2) the reference to Hindus shall

be construed as including a reference to professing the Sikh, Jaina or

Buddhist religion and the reference to Hindu religious institution shall be

5. Article 26 of Indian Constitution: -Freedom to manage religious

affairs. - Subject to public order, morality and health, every religious

denomination or any section thereof shall have the right-

(a) to establish and maintain institutions for religious and charitable

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable properly; and

d) to administer such property in accordance with law.

6. Article 27 of Indian constitution: -Freedom as to payment of taxes for

promotion of any particular religion.-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

7. Article 28 of Indian constitution: Freedom as to attendance at religious

instruction or religious worship in certain educational institutions.-(1) No

religious instruction shall be provided in any educational institution wholly

maintained out of State funds.

(2) Nothing in clause (1) shall apply to an educational institution which is

trust which requires that religious instruction shall be imparted in such

(3) No person attending any educational institution recognized by the state

religious instruction that may be imparted in such institution or to attend any

religious worship that may be conducted in such institution or in any

given his consent thereto.

8. Article 29 of Indian constitution: protection of interests of minorities.-

right to conserve the same'

(2) No citizen shall be denied admission into any educational institution

of religion, race, caste, language or any of them'

9. Article 30 of Indian constitution: Right of minorities to establish and

administer educational institutions.-(1) All minorities, whether based on

religion or language, shall have the right to establish and administer