Law and You > Constitutional Law > Freedom of Conscience and Free Profession, Practice and Propagation of Religion (Article 25)
One of the rights guaranteed by the Indian Constitution is the right to Freedom of Religion. As a secular nation, every citizen of India has the right to freedom of religion i.e., right to follow any religion. As one can find so many religions being practiced in India, the constitution guarantees to every citizen the liberty to follow the religion of their choice. According to this fundamental right, every citizen has the opportunity to practice and spread their religion peacefully. And if any incidence of religious intolerance occurs in India, it is the duty of the Indian government to curb these incidences and take strict actions against it. Right to freedom of religion is well described in the Articles 25 to 28 of Indian constitution. Let us discuss article 25 of the Constitution of India dealing with the freedom of conscience and free profession, practice and propagation of religion.
What is Religion?
In India the need to define religion was raised for the first time by Dr. B. R. Ambedkar when the matter pertaining to personal law and its relation to religion came for discussion in the Constituent Assembly. He pointed out: The religious conceptions in this country are so vast that they cover every aspect of life from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill…There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend it beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious. It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession should be governed by religion…I personally do not understand why religion should be given this vast expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field.
The term ‘religion’ has not been defined in the Constitution and it is hardly susceptible of any rigid definition. In Commissioner of H.R.E. v. Lakshmindra, AIR 1954 SC 282 at 290 case, the Apex Court said that a religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral part of religion and these forms and observances might extent even to matters of food and dress.
In Seshammal v. State of Tamil Nadu (1972) 2 SCC 11 case, the Court held that what practices are protected under the Article is to be decided by the courts with reference to the doctrine of a particular religion and include practices regarded by the community as part of its religion.
In Rajasthan v. Sajjanlal, AIR 1975 SC 706 case, the Supreme Court surveyed the Jain religious tenants as regard to the management of Jain religion endowments.
In Hasan Ali v. Mansoor Ali, (1948) 50 BOMLR 389 case, the Bombay High Court held that Articles 25 and Article 26 not only prevents doctrines or beliefs of religion but also the acts done in pursuance of religion. It thus guarantees ceremonies, modes of worship, rituals, observances, etc which are an integral part of religion. What is the essential or integral part of a religion has to be determined in the light of the doctrines and practices that are regarded by the community as a part of their religion and also must be included in them.
Constitutional Provisions relating to Right of Religion are as follows:
- Article 25: Freedom of conscience and free profession, practice and propagation of religion.
- Article 26: Freedom to manage religious affairs.
- Article 27: Freedom as to payment of taxes for promotion of any particular religion.
- Article 28: Freedom as to attendance at religious instruction or religious worship in certain educational institutions.
In Sardar Suedna Taiiir Saifiiddin v State of Bombay, AIR 1962 SC 853 case, the Supreme Court observed Articles 25-30 embody the principles of religious tolerance that has been the characteristic feature of Indian civilization from the start of history. They serve to emphasize the secular nature of Indian democracy which the founding fathers considered should be the very basis of the Constitution
Article 25:
Freedom of Conscience and Free Profession, Practice and Propagation of Religion:
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I.- The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II.- In sub-clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
Article 25 of Indian Constitution gives the citizens the freedom to choose or follow any religion. The word freedom to conscience simply means to follow any beliefs in regards to religion or others. Article 25 of Indian Constitution grants freedom to every citizen to profess, practice and propagate his own religion. The constitution, in the preamble professes to secure to all its citizen’s liberty of belief, faith and worship.
In Bijoe Emmanuel v. State of Kerala, 1986 3 SC 615 case, where three children belonging to a sect (Jehovah’s witness) worshipped only Jehovah (the creator) and refused to sing the national anthem “Jana Gana Mana”. According to these, children singing Jana Gana Mana was against the tenets of their religious faith which did not allow them to sing the national anthem. These children stood up respectfully in silence daily for the national anthem but refused to sing because of their honest belief. A Commission was appointed to enquire about the matter. In the report, the Commission stated that these children were ‘law-abiding’ and did not show any disrespect. However, the headmistress under the instruction of the Dy. Inspector of Schools expelled the students. The Supreme Court held that the action of the headmistress of expelling the children from school for not singing the national anthem was violative of their freedom of religion. The fundamental rights guaranteed under Article 19(1)(a) and Article 25(1) has been infringed. It further held that there is no provision of law which compels or obligates anyone to sing the national anthem, it is also not disrespectful if a person respectfully stands but does not sing the national anthem.
In Ramesh v. Union of India, AIR 1988 SC 775 case, the serial ‘Tamas’ was based upon a book that already screened four episodes that portray the communal violence between Hindu-Muslim and Sikh-Muslim and the tension, killing and looting that took place during partition. A writ petition was filed under Article 32 of the Constitution for the issuance of the writ of prohibition or other appropriate writ or order restraining the further screening of the serial ‘Tamas’ and enforcing the fundamental rights of the petitioner under Article 21 and Article 25 and to declare the screening of Tamas as violative of Section 5B of the Cinematograph Act, 1952. The Court while dismissing the petition held that there is no violation of Article 21 and 25 and the respondent has not acted improperly. The author tries to bring attention to the past history of our country and to emphasize the wish of the people to live in harmony and rise above religious barriers. It further held that when the serial is viewed in its entirety it creates an impression of peace and co-existence and that the people are not likely to be carried away by the violence shown in it
To “profess” a religion means to declare freely and openly one’s faith and belief. The constitutional right to profess religion means a right to exhibit one’s religion in such overt acts as teaching, practicing and observing religious precepts and ideals in which there is no explicit intention of propagation involved. The right to take out religious processions and to have religious gatherings in the public places, putting on specific garments include within the ambit of profession of religion as guaranteed in article 25 (1). The exercise of this right is, however, subject to public order and morality. The Constitution of India, for example, provides the wearing and carrying of kirpans as part of the profession of Sikh religion.
In Punjab Rao v. D.P. Meshram, AIR 1965 SC 1179, at 1184. Case, the Supreme Court held that to profess a religion means “to enter publicly into a religious state.”
In Mohammad Hanif Quareshi v. State of Bihar, AIR 1958 SC 731 case, where the appellants contended that sacrificing a cow on Bakr Id day amounted to profession and practice of Islam, which is protected by article 25 of the Constitution. Tracing the history of the custom of offering sacrifice of a cow on the Bakr-Id, the Supreme Court ruled, “We have, however, no material on the record before us, which will enable us to say… that the sacrifice of a cow on that day is an obligatory overt act for a Mussalman to exhibit his religious belief and idea.”
The protection given under article 25 (1), however, does not divest the citizens from their duty to co-operate with the State to maintain public order so that people may live their ordinary life in dignity.
To ‘practice’ religion is to perform the prescribed religious duties, rights and rituals, and to exhibit his religious belief and ideas by such acts as prescribed by religious order in which he believes.
In State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 84 case, where the constitutional validity of Bombay Prevention of Hindu Bigamous Marriage Act was challenged on the basis of discrimination between different religions. The Act prevented bigamy among Hindus alone who resided in that State while the Muslim community that practiced polygamy was left out of the operation of the said Act. The Court upheld the impugned Act constitutionally valid. Mr. M.C. Chagla, the Chief Justice of the Bombay High Court, indicated that the freedom to practice religion as provided under article 25(1) was not absolute, in the sense that if religious practices contravened to public order or to a policy of social welfare, then they said practices could not claim State protection. He also opined, “a sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is religious faith and belief.”
To ‘propagate ‘ means to spread and publicize his religious view for the edification of others. But the word “propagation” only indicates persuasion and exposition without any element of coercion. The right to propagate religion means the right to communicate one’s religious tenets to others by way of preaching, teaching and writing with the explicit intention of convincing others about the goodness of one’s religion. As propagation implies convincing others to one’s point of view, it may involve underestimating others’ religion.
In Ramji Lal Modi v. State of Uttar Pradesh, AIR 1957 SC 620 case, the Apex Court held that if religious propagation is done in any way with deliberate intention to outrage the religious feeling of others, the same can be penalized within the protection of clause (2) of article 19. Any act perpetrated with the intention of outraging the religious feelings of the people is an attack on their dignity in their self-identity because religious convictions are deep-seated values constitutive of one’s self-identity. By protecting the people against such religious outrage, the State honours human dignity, which is one of the primary objectives of the secular State, as referred to in the Preamble of the Constitution of India.
Restriction on Right of Religion:
Public order:
Restriction on this ground implies that the State could pass a law to regulate religious meetings or processions in public places like roads, streets and parks. Under Article 19 (1) (c) all citizens have freedom to assemble for any purposes. This freedom also includes resembling for religious purposes.
However, this right is subject to a number of conditions viz. the Assembly must be peaceful, it must be unarmed and it must be held subject to the requirement of public order.
Sections 295 to 298, 153 of the Indian Penal Code, 1860 declare certain acts to be an offence if they tend to wound the religious feelings of any class of persons.
According to Section 295 of the Indian Penal Code, 1860 whoever, with deliberate and malicious intentions of outraging the religious feelings of any class of citizens of India, by word either spoken or written, by signs or by visible representations or otherwise insults or attempts to insult the religion or the religious belief of that class, shall be punished with imprisonment of either description for a term which may extend to two years, or with a fine, or with both.
Under section 153 A of the Indian Penal Code, 1860 it has been declared a crime to promote, on grounds of religion, race, language, caste or community, enmity between different religious, racial or language groups. This section holds an act as a criminal offence if it is detrimental to the maintenance of harmony between different religious groups or is likely to disturb public tranquillity.
According to the Penal Code of India, suicide is a crime that applies to the person who attempts it and those who support or assist to commit it. Similarly, death by starvation or by self-inflicted torture to attain spiritual ends is also an offence under the same Code. The law, therefore, forbids suicide even if the act is motivated by religious intention.
In Acharya Jagadiswaranda Avadhuta v. Commissioner of Police Calcutta, AIR 1984 SC 51 (an Ananda Marg case), the Supreme Court held valid the order issued by the Calcutta Police Commissioner under section 144 of the Code of Criminal Procedure, which prohibited the ‘Tandava dance’ in public places. The Court asserted that carrying lethal weapons like daggers, and carrying human skulls posed danger to public order and morality and, therefore, the Police Commissioner’s order to ban Thandava dance from the public places was valid.
Morality:
On the ground of Morality State legislation can validly prohibit immoral practices, although they may be approved by religion. The Hindu religion has sanctioned certain practices which would appear to be immoral. In South India many orthodox Hindus held belief that religious merit could be attained by dedicating girls to temples. Such girls were called devadasis (i.e., servants of the God). However, in the course of time, this led to temple prostitution. The practice of Sati (whereby a widow burnt herself to death on the funeral pyre of her husband) was also considered to have a basis in religion.
The Suppression of Immoral Traffic in women and Girls Act declared prostitution illegal if it is practiced within 200 yards of any place of public worship. The Act also makes it an offence to procure, induce or take women for prostitution.
In Uttar Pradesh v. Kaushaliya, AIR 1964 SC 416 case, the constitutional validity of the Suppression of Immoral Traffic in women and Girls Act was challenged on the ground that the terms of the Act amounted to a restriction on the trade of prostitution. But the Court held valid the restrictions involved in the said Act, because it was a reasonable control in the interest of public morality to stem the evil of prostitution practiced in some localities.
Public Health:
It is the paramount duty of a civilized State to furnish legal armour to protect individual’s life and to maintain good health of the human being. However, this life saving objective of the State may run counter to certain religious beliefs and practices. Death by starvation or by self-inflicted torture to attain spiritual ends is also an offence under the Indian Penal Code. The law, therefore, forbids suicide even if the act is motivated by religious intention.
In Ramchandra Pande v. The State of West Bengal, AIR 1976 Cal 164 case,wherethe validity of the Ganga Sagar Mela ordinance of 1975 which was promulgated to enable the State of West Bengal to take measures for safeguarding the health, safety and welfare of pilgrims attending the Ganga Saga Mela (fair) was attacked. However, the court observed that the ordinance come within the scope of restrictions permitted by Article 25.
Article 25(2):
Religious Freedom: Subject to Regulation of Economic, financial, political and Secular Activities Associated with Religion:
Article 25 (2) (a) empowered the State to regulate financial, political and secular activities associated with religion. The religious activities as such are not covered under the regulatory power of the State. It is not always easy to find out whether an activity will be covered under religious practice or under financial, political or secular activity associated with religion. Certain activities even if involve expenditure or employment of servants and priests or uses of marketable commodities cannot be said to be secular activities under Article 25(2).
In Commissioner of H.R.E. v. Nakshmindra, AIR 1954 SC 282 case, the Court held that certain activities even if involve expenditure or employment of servants and priests or uses of marketable commodities cannot be said to be secular activities under Article 25(2) (a).
In Bombay v. Narasu Bapa Mali, AIR 1952 Bombay 84 case, the Court held that the management of property attached to a religious institution or endowment has been held to be a secular activity subject to the regulatory power of the State.
Religious Freedom: subject to Social Reform and Throwing Open Temples:
Clause (2) (b) of Article 25 deals with two exceptions: (1) laws providing for social welfare and social reforms, and (2) the throwing open of all “Hindu religious institutions of a public character” to “all classes and sections of Hindus.”
Most of the time, the courts while interpreting clauses (a) and (b) of Article 25 (2) and specially sub-clause (b) “has sought to strike a reasonable balance between religious liberty of an individual or a group and the social control.”
In State of Bombay v. Narsu Appa Mali, A.I.R. 1952 Bom. 84 case, the banning of bigamous marriage was upheld as a measure of social reform.
In In re, Noise Pollution, 18 July, 2005 case, the Supreme Court has given certain directions to be followed to control noise pollution in the name of religion:
- Firecrackers: A complete ban on sound-emitting firecrackers from 10 pm to 6 am.
- Loudspeakers: Restriction on the beating of drums, tom-tom, blowing of trumpets, or any use of any sound amplifier between 10 pm to 6 am except in public emergencies.
- Generally: A provision shall be made by the State to confiscate and seize loudspeakers and such other sound amplifiers or equipment that create noise beyond the limit prescribed.
In Masud Alam v. Commissioner of Police, AIR 1956 Cal. 9 case, the banning of electrical loudspeakers was held valid. The court observed that every religion has right to have propagandists. But when such propaganda is made through loudspeakers in a crowded and noisy locality to detriment of public morals, health, order, it is prohibited by Article 25. A loudspeaker may take one to Hell instead of Heaven by very volume of its sound.
The freedom of religion under Article 25(1) is, therefore, subject to the power of the State to make laws for social welfare and social reforms. Thus, the banning of bigamous marriage was upheld as a measure of social reforms. Likewise, the provisions of the Hindu Marriage Act, 1955 are protected under Article 25 (2) (b). On the same basis the prohibition of evil of Sati or system of “devdasi‟ was upheld.
The Section 372 of the Indian Penal Code declares that any person dedicating a girl for devadasi was liable to punishment. With the enactment of Madras Devadasi (Prevention of dedication) Act, 1947, the prohibition of the devadasi practice in any form was legally enforced in South India. In addition, The Suppression of Immoral Traffic in women and Girls Act declared prostitution illegal if it is practiced within 200 yards of any place of public worship. The Act also makes it an offence to procure, induce or take women for prostitution.
Explanation I to Article 25 of the Constitution recognizes the rights of the followers of the Sikh religion to wear Kripans as an emblem of their religion. Kripan means a Sword, but its size and shape has not been prescribed by the Sikh religion. It may, therefore, be a sword of any size or shape. But a Sikh cannot carry any number of Kripans or swords. He is not allowed to possess an extra sword without license.
Explanation II to Article 25 declares that the expression “Hindu” shall be constructed as including persons professing the Sikh, Jaina or Buddhist religion. The explanation is only for the purposes of Article 25 (2) (b) and for no other. Various statutes accord legislative recognition to the fact that even though Jains may not be Hindus by religion they are to be governed by the same laws as Hindus and cannot claim to be a separate religious minority.
Conclusion:
Article 25 covers not only religious beliefs (doctrines) but also religious practices (rituals). Moreover, these rights are available to all persons–citizens as well as non- citizens. However, these rights are subject to public order, morality, health and other provisions relating to fundamental rights. Further, the State is permitted to: (a) regulate or restrict any economic, financial, political or other secular activity associated with religious practice; and (b) provide for social welfare and reform or throw open Hindu religious institutions of a public character to all classes and sections of Hindus.