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RIGHT TO FREEDOM OF RELIGION

India is a pluralistic society and a country of religions. It is inhabited by people of many religions. The framers of the Constitution thus desired to introduce the concept of secularism, meaning state neutrality in matters of religion. They also wanted to confer religious freedom on various religious groups. The Constitution therefore seeks to ensure state neutrality in this area.1

The right to “freedom of religion” is contained in Articles 25 to 28 of the Indian Constitution. Various rights which go to constitute the “right to freedom of religion” are:

A. Freedom of conscience and right to freely profess, practice and propagate religion (Article 25) ;

B. Right of a religious denomination to manage religious affairs (Article 26) ;C. Freedom from payment of taxes for promotion of any particular religion (Article 27) ;

andD. Freedom from attendance at religious instructions in certain educational institutions

(Article 28).

Articles 25 to 28 use the term “person”. Therefore, freedom of religion is secured, is available to every person, citizens or non-citizens or aliens.2

INDIA – A SECULAR STATE

It is made explicit in the very Preamble that India is a secular State. It does not mean that it is an irreligious or atheistic State. Nor, it means that India is an anti-religious State. It merely explains that the State has no religion of its own. That, in matters of religion, State is neutral. It neither promotes nor practices any particular religion, nor does it interfere with any religious practice. That the State is not concerned with the relationship of men with other men.

The Constitution ensures equal freedom to all religions at the same time, it is declared that the religion of a person has nothing to do in the matters relating to social and economic welfare of the people, which matters can be regulated to restrict by the State by law.

“Secularism”, the Supreme Court explained in, St. Xavier’s College v. State of Gujarat,3 “is neither anti-God, nor pro-God; it treats alike the devout, the agnostic and the atheist. It eliminates God from the matters of the State and ensures that no one shall be discriminated against on the ground of religion”. That, every person is free to mould or regulate his

1 M.P. Jain, Indian Constitutional Law (Lexis Nexis Butter Works, 2010) Pg- 1315.2 Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388.3 AIR 1974 SC 1389.

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relations with God in any manner. He is free to go to God or to Heaven in his own ways. And, that worshipping God is left to be dictated by his own conscience.

In, kesavananda Bharti v. State of Kerala,4the Supreme Court held that secularism was one of the basic features of the Constitution. To make it expressly clear the Constitution (forty-second Amendment) Act, 1976 inserted the term “secular” in the Preamble to the Constitution of India.

Secularism means developing, understanding and respect for different religions.

In Aruna Roy v. Union Of India,5the validity of the new National Education Policy, 2002 which provided for value based education to school children on basis of all religions was challenged as violative of Art. 28 and anti-secular. The Court held that the study of religions in school education is not against the secular philosophy of the Constitution. Justice Dharmadhikari said that from the experience of the working of Constitution for more than fifty years it is clear that the complete neutrality towards religion and apathy for all kinds of religious teachings in institutions of the State have not helped in removing mutual misunderstanding and intolerance inter se between sections of the people of different religions faiths and beliefs. Secularism therefore, is susceptible to positive meaning that is developing, understanding and respect towards different religions. The essence of Secularism is non- discrimination of people by the State on the basis of religious differences. Secularism can be practiced by adopting a complete neutral approach towards religions or by positive approach by making one section of religious people to understand and respect religion and faith of another section of people. Based on such mutual understanding and respect for each other’s religious faiths, mutual distrust and intolerance can gradually be eliminated. His Lordship quoted Gandhiji who said “the real meaning of Secularism is Sarva Dharma Sambhav meaning equal treatment and respect for all religions. But we have misunderstood it as Sarva Dharma Abhav meaning negation of all religions. In a society wedded to Secularism ‘study of religions’ would strengthen the concept of secularism in its true spirit.6

FREEDOM OF RELIGION

DEFINING RELIGION

The term religion is not defined in the Constitution. It is not susceptible of any rigid definition. In Commissioner, H.R.E. v. L.T. Swamiar7, the Supreme Court explained:-

Religion is a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism, which do not believe

4 AIR 1973 SC 1461.5 AIR 2002 SC 3176.6 J.N. Pandey, Indian Constitutional Law (Lexis Nexis Butter works, 2002) Pg. 294.7 AIR 1954 SC 282.

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In God or in any Intelligent First Clause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being. It will not be correct to say that religion is nothing else but a doctrine or belief. 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 parts of religion, and these forms and observances might extend even to matters of food and dress.

A religion is, therefore, not merely an opinion, doctrine or belief. It has its outward expression in acts as well. Religious practices or performance of acts in pursuance of religious belief, are as much a part of religion as faith or belief in particular doctrines.8 Religion is the belief which binds spiritual nature of men to super-natural being. It includes worship, belief, faith, devotion etc. and extends to rituals.9

It has also been said that the word religion in Articles 25 and 26 have to be understood not as is colloquially understood by the word religion, but in the sense of it comprehending our concept of dharma. Marking the difference between religion and dharma, Justice Hansaria explained in Narayana case that a “sectarian religion is open to a limited group of people whereas dharma embraces all and excludes none.” The learned Judge further said that the word religion in the Articles 25 and 26 had to be understood not in a narrow sectarian sense but encompassing out ethos of.

In Lily Thomas v. Union of India,10 the Supreme Court explained that religion was a matter of faith stemming from the depth of the heart and mind and that religion, faith and devotion were not easily interchangeable. The Court further said that if the person feigned to have adopted under religion just foe some worldly gain or benefit, it would be religious bigotry. Looked at from this angle, the Court ruled that a person who mockingly adopted another religion where plurality of marriage was permitted so as to renounce the previous marriage and desert the wife, he could not be permitted to take advantage of his exploitation , as religion was not a commodity to be exploited. Prosecution of the apostate-husband under Section 494 of IPC, 1860, did not violate freedom of religion, the Court held.

Practices which are regarded by a religious community as part of its religion are also matters of religion. For instance, right to bury dead bodies in a particular manner with particular rites in consecrated places is part and parcel of certain religions

Where members of certain denomination had existing right to cremate dead bodies of their near and dear ones on plot allotted to them, denial of that right would amount to abridgement of their fundamental right to freedom of religion. So ruled, the Gauhati High Court in Worter Kharmalki v. State of Meghalaya, held that the petitioner had the right to freedom of religion to cremate dead bodies of their near and dear ones on plot allotted to them.

8 Ratilal v. State of Bombay, AIR SC 388.9 P.M.A. Metropolitan v. Moran Mar Marthoma, AIR SC 2001.10 AIR 2000 SC 1650.

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However, it was found to be undesirable and was resulting in polluting the atmosphere, the authorities would be under a duty to provide them adequate cremation ground.

Freedom of conscience and right to profess, practice and propagate religion

Article 25(1) provides: “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.”

Therefore, this Clause secures to every person-

(a) Freedom of conscience; and

(b) The right to-

i. Profess religion;ii. Practice religion; and

iii. Propagate religion.

(A) FREEDOM OF CONSCIENCE

The expression “freedom of conscience” means the inner freedom of a person to mould his relations with his God in whatever manners he likes. It connotes a person’s right to entertain beliefs and doctrines concerning matters which are regarded by him to be conducive to his spiritual well-being. Every person in India therefore, has the freedom to have faith and belief in religious tenets of any sector community.

“freedom of conscience”, simply speaking, means the freedom to entertain religious beliefs. Any belief which is genuinely and conscientiously held, attracts the protection of Article 25(1). It means the freedom of religious opinion, the right to hold or to entertain religious beliefs as may be approved by his judgment or conscience. Until this inner belief is expressed in any outward form, it is merely the “freedom of conscience.”

Freedom of conscience has no necessary connection with any particular religion or of any faith in God. It also implies the right of a person not to be converted into another man’s religion or to bring to any religion at all.

(B)(I) RIGHT TO PROFESS RELIGION

Article 25(1) guarantees the right to profess religion. To “profess” means to avow publicity; to make an open declaration of ; to declare one’s belief in; as to profess Christ; to accept into religious order. Thus, to profess a particular religion means to declare freely and openly one’s faith or belief in. when the inner “freedom of conscience” becomes articulate

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and expressed in an outward form, it amounts to profess religion. It is to declare one’s belief in such a way that it would be known to those whom it may concern.11

(B)(ii) RIGHT TO PRACTICE RELIGION

To practice religion means to perform religious duties, rites or rituals. The protection is, thus, not limited to matters of doctrine but extends to rituals and observances. The expression “practice of religion” signifies acts done in pursuance of religious belief. The guarantee contained in Article 25(1), not only, protects the freedom of religious opinion, but it also protects acts done in pursuance of a religion. To enable a person to practice the beliefs and opinions which he holds, in a meaningful manner, it is essential for him to receive the relevant information, otherwise, he may be prevented from acting in consonance with his beliefs and opinions.

While offering of prayer or worship is a religious practice, its offering at every location where such prayers can be offered, would not be an essential or integral part of such religious practice and not protected under Article 25.12

Practices which constitute integral and essential part of religious practice

Religious practices to which Article 25(1) refers, includes practices which are an integral part of the religion itself, i.e., the beliefs and doctrines which are regarded by those who profess religion, to be conducive to their spiritual well-being. The integral or essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. For example, for Hindus, these may include offerings of food to the idol; performance of periodical ceremonies; recital of sacred texts; offering oblations to the sacred fire. For Sikhs, the wearing of kara, 13the wearing and carrying of Kripans, recital of Holy Guru Granth Sahib are the integral part of their religion. For Muslims, calling Azan, performance of Hajj, are some of the integral practices in their religion.

Article 25(1) protects those rituals and observances, ceremonies and modes of worship, which are considered by a religion, to be its integral and essential part . therefore, practices which, though religious, have sprung from merely superstitious beliefs, may in that sense, be extraneous and unnecessary accretions to religion itself.

Whether a religious practice constitutes essential part of the religion or not, the test always would be whether it is regarded as such by the community following the religion or not.

The question would be decided by the Court, and the findings of the Court will depend on the evidence adduced before it as to the conscience of the community and the tenets of its religion. For instance, the Apex Court in John Vallamattom v. Union Of India,14 held that

11 Punjab Rao v. D.P. Meshram, AIR 1965 SC 1179.12 M. Ismail Faruqui v. Union Of India 1995 SC 605.13 Surjeet Singh Chhabra v. Union of India, AIR 1997 SC 2560.14 AIR 2003 SC 2902.

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disposition of property for religious of charitable uses was not an integral part of Christian religion.

In Masmood Alam v. Commissioner of Police, 15the Calcutta High Court held that the use of a loudspeaker for calling Azan was not an integral part of the Muslim religion and therefore, suppression of the use of loudspeaker did not offend the right of the petitioner guaranteed by A article 25(1). No religion prescribes for performing prayers through amplifiers and beating drums. Likewise, it is not an obligatory overt act enjoyed by Muslim religion that an Islamic girl, studying in all girls section, must wear head covering.16

In State of Bombay v. Narasu Appa Mali,17 the Bombay Pervention of Bigamous Marriages Act, 1946, which forbade bigamy among Hindus, was challenged as violative of the freedom of religion of the respondent as guaranteed by Article 25(1). The Bombay High Court held the Act valid and said that the birth of a natural born son was not an essential and integral part of Hindu religion. It was why the institution of adoption was created.

In M.H. Quareshi v. State of Bihar,18 the petitioners challenged the constitutional validity of the Bihar Prevention and Improvement Of Animals Act, 1956. The petitioners inter alia contended that the impugned Act violated their fundamental right guarantee by Article 25(1). They argued that the sacrifice of a cow on the occasion of their Bakri Idd Day was an integral part of their religion. The Supreme Court rejected the contention and held that there was no material on the record before the Court which would enable them to say that the sacrifice of a cow on that day was an obligatory act for a Muslim to exhibit his religious belief and idea.

The Muslim Law permits marrying four women. However, nowhere the law mandates or dictates it as a duty to perform four marriages. 19

In Jagdishwaranand v. Police Commissioner, Calcutta,20 the Court, after going into the religious book and practices of the Ananda Margis, held that tandava dance in public is not an essential part of Ananda Marga.

Upholding the validity of the Acquisition of Certain Areas at Ayodhya Act, 1993, the Supreme Court by a majority of 3:2 in Ismail Faruqui v. Union of India21 held that in view of tempporary vesting in the Central Government of the disputed and adjacent land at Ayodhya where Babri Masjid existed was not a violation of Article 25. It said:

“ The right to practice, profess and propagate religion guaranteed under Article 25 of the Constitution does not necessarily include the right to acquire or own or possess property. Similarly this right does not extend to the right of worship at any and every place of worship

15 AIR 1956 Cal 9.16 Fathema Hussain Sayed v. Bharat Education Society, AIR 2003 Bom. 75.17 AIR 1952 Bom 84.18 AIR 1958 SC 731.19 Narender Kumar : Constitutional Law of India (Allahabad Law Agency, 2010) Pg. 324.20 (1983) 4 SCC 522.21 (1994) 6 SCC 360.

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so that any hindrance to worship at a particular place per se may infringe the religious freedom…

While offer of prayer or worship is a religious practice, its offering at every location where such prayer can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as to form an essential and integral part thereof. Places of worship of any religion having particular significance for that religion, to make it an essential or integral part of that religion, stand on a different footing and have to be treated differently and more reverentially….

A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open. Accordingly, its acquisition is not prohibited by the provisions in the Constitution of India….”

(B)(iii) Right of Propagation of Religion

To propagate religion, means to spread and publicize one’s religious views. Holding public meetings by persons for propagating their religion is held to be guaranteed under Article 25(1). But to propagate religion indicates persuasion and exposition without any element of coercion. It does not include the right to insult the religion of others. Azan given by the Imam or the person in charge of the Mosques, though an essential and integral part of Islam, but, not a form of propagation.

Rev Stanislaus v. Madhya Pradesh,22 is a matter where the Supreme Court of India considered the issue whether the fundamental right to practice and propagate religion includes the right to convert, held that the right to propagate does not include the right to convert and therefore upheld the constitutional validity of the laws enacted by Madhya Pradesh and Orissa legislatures prohibiting conversion by force, fraud or allurement.

Reverend Stanislaus of Raipur challenged the Madhya Pradesh Dharma Swatantrya Act by refusing to register conversions. The Madhya Pradesh High Court upheld the Act by stating that the freedom of religion must be guaranteed to all, even those who are subject to conversions by "force, fraud, or allurement." When the Orissa Freedom of Religion Act was challenged in the Orissa High Court, the decision went in the opposite direction on grounds that the definition of "inducement" was too broad and that only the parliament had the power to enact such legislation and the state legislature did not have the power to legislate on this matter. The Supreme Court of India heard both these cases together and ruled in favor of both the Acts. The Supreme Court held that the right to propagate religion did not grant the right to convert another person to one’s own religion. It merely meant the right to transmit or spread one’s religion by an exposition of its tenets.

22 1977 SCR (2) 611. 

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In Ramesh Chotalal Dalal v. Union of India, 23the Supreme Court accepted that Article 25 guaranteed the right to draw attention of the Court to ensure that the communal atmosphere was kept clean and unpolluted.

In this case, the petitioner moved the Court for a writ of prohibition restraining the concerned person from telecasting or screening of the serial titled “tamas” and to enforce his fundamental rights under Articles 21 and 25. The serial based on a novel written by Sri Bhisma Sahni, deputed how during the partition of India communal violence was generated by fundamentalists and communalists of both communities.

The Court held that there was no danger to communal atmosphere by telecasting or screening the said serial and that there was no violation of Article 25. The respondents had not acted with malice or bad motive in screening the serial. That, there could not be any apprehension that it was likely to affect public order or it was likely to incite the commission of any offence. Instead, the serial viewed in its entirety, the Court held, was capable of creating lasting impression of the message of peace and coexistence and that it was more likely that the serial would prevent the incitement of such offences in future by extremists and fundamentalists.

In P.M.A. Metropolitan v. Moran Mar Marthoma,24 the Supreme Court held that the right to practice and propagate religion includes the right to ex-communicate the person belonging to that religion. The Court said all religious bodies were regarded by the courts of law in the same position in respect of the protection of their rights and the sanction given to their respective organizations. That, discipline of a Church, however could not affect any person except by express sanction of the civil power or by voluntary submission of the particular person. The Court said that one of the effects of ex-communication was that the person concerned was deprived of the right of worship. It was, under our Constitution, a fundamental right. Therefore, the Court said that any interference with this right or its deprivation could be challenged in the court of law.

RESTRICTIONS ON THE FREEDOM OF RELIGION

The “freedom of conscience” and the right to “profess, practice and propagate” religion, guaranteed by Article 25(1) is subjected to:-

Public order, morality, health and other provisions of Part III Any law regulating or restricting any economic, financial, political or other secular

activity associated with religious practice. Any law providing for social welfare and reforms or the throwing open to all persons

the religious institutions, belonging to their religion, of a public character.

(1) Religious liberty subject to public order, morality and health.

23 AIR 1988 SC 775.24 AIR 1995 SC 2001.

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In the name of religion no act can be done against public order, morality and health of the public. Section 34 of the Police Act prohibits the slaughter of cattle or indecent exposure in public place. These acts cannot be justified on plea of practice of religious rites. Likewise, in the name of religion ‘untouchibility or traffic in human beings’ e.g., system of devadasis cannot be tolerated. This freedom is also subject to the “other provisions of this part’. E.g., right to freedom of speech and expression, freedom to assembly and association, freedom to carry on a profession, trade and business. The freedom to practice religion cannot affect the exercise of these freedoms by others. These rights are subject to the reasonable restrictions under Clause (2) of Article 19. Right to propagate one’s religion does not give right to anyone to “forcibly convert any person to one’s own religion. Forcible conversion of any person to one’s own religion might disturb the public order hence could be prohibited by Law.

Forced conversion not allowed

In Rev Stainislaus v. State of M.P.,25 the validity of the two Acts- the Madhya Pradesh Dharma Swatantrya Adhiniyam, 1968 and the Orissa Freedom of Religion Act, 1967—passed by the State Legislatures of Madhya Pradesh and Orissa respectively was challenged on the ground that they were violative of the fundamental right of the appellant guaranteed under Article 25(1) of the Constitution. These Acts were passed to prohibit forcible conversion of any person to one’s own religion. The appellant was prosecuted for the commission of offences under the Madhya Pradesh Act. He contended that the right to ‘propagate’ one’s religion meant the right to convert person to one’s own religion and was a fundamental right under Art. 25(1) of the Constitution. Secondly, he argued that the State Legislature had no competence to enact such a Law as it did not fall within the purview of Entry I so Parliament alone had the power to make the Law and not the State Legislature.

Rejecting the contentions of the appellant the Supreme Court held that impugned Acts fell within the purview of Entry I of List II as they were meant to avoid disturbances to the public order by prohibiting conversion from one’s religion to another in a manner reprehensible to the conscience of the community. These two Acts do not provide for the regulation of religion and therefore do not fall under Entry 7 of List I. declaring with the meaning of the words ‘public order’ the Court held that if a thing which disturbs the current of the life of the community, and does not merely affect an individual it would amount to disturbance of the public order. Thus if an attempt is made to raise communal passions, e.g., on the ground that someone has been “forcibly” converted to another religion, it would, in all probability, give rise to an apprehension of a breach of the public order, affecting the community at large. Therefore, Legislation prohibiting forcible conversion of one’s own religion in the interest of public order can be passed and is valid.

Following Rev Stainislaus ruling the Supreme Court bench comprising of Chief Justice V.N. Khare and Justice S.B.Sinha held that the Orissa Freedom of Religion Act, 1967 which

25 AIR 1977 SC 908.

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provided that a person wanting to convert to a particular religion must make a personal declaration which would be verified by the Police also, is valid and overruled the decision of the Orissa High Court. The Court said “What Article 25 grants is not the right to convert another person to one’s own religion but to transmit or spread one’s religion by an exposition of its tenets.”

In Gulam Abbas v. State of U.P., 26 it has been held that the direction given by the Supreme Court for shifting a property connected with religion to avoid clashes between two religious communities or sects does not affect religious rights being in the interest of public order. In that case the facts were that there had been a long standing dispute between the Shias and Sunnis of Mohalla Doshipura, Varanasi, regarding the performance of religious rites by members of Shia sect on certain plots and properties situated in the Mohalla. There had been violent clashes between the two religious communities leading to proceeding and several petitions before the Supreme Court. To find a permanent solution to the problem the Supreme Court appointed a committee of seven persons consisting of three nominees of Shias and three nominees of Sunnis and the Divisional Commissioner as Chairman. The committee recommended that the shifting of two graves of Sunnis so as to separate the places of worship of Shias and Sunnis was feasible. The Sunnis challenged the implementation of the recommendation on the ground that it was violative of their rights under Articles 25 and 26 of the Constitution. The Supreme Court however, rejected their contention and held that the order of the Court was not violative of the Constitution as the rights under Article 25 and 26 are not absolute but subject to maintenance of public order.

Similarly in the case of Acharaya Jagdishwaranand Avadhuta v. Commissioner of Police, 27Calcutta (ANAND MARGA CASE), the Supreme Court held that the tandava dance in procession of public places by ananda margis carrying lethal weapons and human skulls was not an essential part of their religion and hence, the order under Section 144, Cr.P.C. prohibiting such practice in interest of public order and morality was not violative of Article 25(1) of the Constitution.28

Also , the issue of alleged forced conversions in Agra rocked India in December 2014, and the government proposed an anti-conversion law at both the central and state levels.. On 8 December 2014, Hindu nationalist groups affiliated to the Rashtriya Swayamsevak Sangh (RSS) were reported to have converted 250 Muslims to Hinduism in Agra. The incident was condemned by all the opposition parties. The functioning of the Indian Parliament was log-jammed in December. News reports indicated that Muslim right wing groups in India have received a `lease of life' in trying to protest the conversions. After a full investigation, the Uttar Pradesh Minorities Commission concluded that the Muslims had not converted as they continued to "remain Muslims."At present only Arunachal

26 (1984) 1 SCC 81.27 (1984) 4 SCC 522.28 Ibid, pg. 304.

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Pradesh, Gujarat, Madhya Pradesh, Himachal Pradesh and Odisha currently have anti-conversion laws

Two children norm for elective post not violative of Article 25-

In Javed v. State of Haryana,29 the Supreme Court has held that Section 175(11)(q) of the Haryana Panchayati Raj Act, 1994 which disqualifies person having more than two children from contesting election for the post of Sarpanch and Panch does not violate Article 25 of the Constitution as it is in the interest of social welfare and reform.

(2) Regulation of economic, financial, political and secular activities associated with religious practices – Clause (2)(a)

It enables the State to regulate or restrict the economic, financial, political or other secular activities associated with religious practice. Therefore, a Law which falls within Article 25(2)(a) or (b) will be Constitutionally valid, even if it is found to be inconsistent with the right guaranteed by Article 25(1). However, the words economic, financial, and political or other secular activities mean those activities which are not of the essence of religion.

In Mohd. Hanif Quareshi v. State of Bihar, the Supreme Court held that the Law prohibiting the slaughter of cow did not violate the freedom of religion of the Mohammedan and therefore, the practice could be regulated.

In S.P. Mittal v. Union of India, the petitioners challenged the constitutionality of the Auroville (Emergency Provisions) Act, 1980, on the ground that it was violative of their fundamental rights under Articles 25 and 26. The Auroville (Emergency Provisions) Act, 1980 was enacted for taking over the management of Auroville for a limited period. The question before the Court was whether Sri Aurobindo Society and Auroville Township constituted religious denomination and that whether the impugned Act violated the rights of the petitioners under Articles 25 and 26.

The Supreme Court by am majority of 4:1 held that the teachings of Shri Aurobindo constituted a philosophy and not religion and that the society and Auroville Township were not religious denominations, the Court held that the Auroville (Emergency Provisions) Act, 1980, did not curtail the freedom of conscience and the right freely to profess, practice and propagate religion. Therefore, there was no question of the impugned Act being the secular matters, which matters could be regulated by law under Article 25(2) (a).

In Remya Raju v. State of Kerala, students belonging to Seventh Day Adventist denomination, a worldwide Protestant Christian denomination, contended that in terms of the core faith of the members of that denomination, they had to abstain from any activity from 6 a.m. to 6 p.m. on Saturdays and, therefore, claimed that special arrangements be made for them for appearing for the SSLC Examination, March, 2008, after 6 p.m. Rejecting the contention, the Kerala High Court held : that the Kerala Education Act, 1959 and the Kerala 29 AIR 2003 SC 3057.

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Education Rules, 1959, were nothing but secular laws to be enforced, without any classification on the basis of caste, religion etc., except to the extent provisions were made in tune with the constitutional goals and provisions.

Scheduling of examination, on a day, not acceptable to a class of citizens professing a particular religion, did not infract the fundamental right guaranteed by Article 25(1), the Court ruled.

In Raja Bira Kishore Dev v. State of Orissa, the Sri Jagannath Temple Act, 1954, divested the Raja of Puri of the sole control and management of the temple and vested it in a Committee constituted under the Act. The Supreme Court held the Act valid, for it merely regulated the secular activities relating to the temple.

In Sri Adi Viseshwara of Kashi Vishwanath Temple, Varanasi v. State of Uttar Pradesh,30 the U.P. Sri Kashi Vishwanath Temple Act, 1983, which divested the Pandas of their right to manage the temple and receive offerings, was challenged as violative of their right under Article 21. The Court explained that religious freedom guaranteed by Articles 25 and 26, was intended to be a guide to a community life and ordained every religion to act according to cultural and social demands to establish an egalitarian social order. So interpreted, it was held that the right to manage a temple or endowment, was not integral to religion or religious practice. The Court further said that the right to receive offerings was not a vested right of the Pandas but a right coupled with duty to render service, which could be regulated by the State by Law.

The Apex Court in N. Adithayan v. Travancore, Devaswom Board,31 held that a person well versed, properly trained and qualified to perform pooja, in manner conducive and appropriate to worship of a particular deity, not be denied the appointment as a Priest because he was not a Brahmin by birth or pedigree.

In Bhuri Nath V. State of Jammu and Kashmir,32 Court while dealing with the validity of J & K Shri Mata Vaishno Devi Shrine Act, 1988, and the abolition of the right of Baridars to receive share in the offerings made by pilgrims to Shri Mat Vaishno Devi, observed their right to perform pooja is only a customary right coming from generations which the State can and have by legislation abolished and that the rights seemed under Articles 25 & 26 are not absolute or unfettered but subject to legislation by the State limiting or regulating any activity, economic, financial, political or secular which are associated with the religious behalf, faith, practice or custom and that they are also subject to social reform by suitable legislation. It was also reiterated therein that though religious practices and performances of acts in pursuance of religious beliefs are, as much as, a part of religion, as further belief in a particular doctrine, that by itself is not conclusive or decisive and as to what are essential parts of religion or behalf or matters of religion and religious practice is essentially a

30 JT 1997 (4) SC 124.31 AIR 2002 SC 3538.32 AIR 1997 2 SCC 745.

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question of fact to be considered in the context in which the question arise on the basis of materials- factual or legislative or historic if need be giving a go bye to claims based merely on supernaturalism or superstitious beliefs or actions and those which are not really, essentially or integrally matters of religion or religious belief or faith or religious practice.

(C) Social Welfare and Reforms and throwing open of temples

Article 25(2)(b) contains the following two ideas:

(1) Measures of social reform are permissible and would not be void on the ground of interfering with freedom of religion. Thus, the Hindu Marriage Act which introduces the principle of monogamy for the Hindus is undoubtedly a law providing for social welfare and social reform. It is a Legislation intended for the benefit of the class of persons to whom the Act applies.33 Thus, legislative interference with law of marriage does not constitute an infringement of Hindu religion. Succession like marriage is a secular matter and is not within the guarantee contained in Article 25.

In Krishna Singh v. Mathura Ahir, the Supreme Court has said that the Fundamental Rights do not touch upon the personal law of the parties. Article 25 thus involves a separation between religious activities, on the one hand, and secular and social activities, on the other. While the former are protected the latter are not.

Article 25(2)(b) enables the State to take steps to remove the scourage of untouchibility from amongst the Hindus. The word “public” here includes any section of the public. Public institutions would thus mean not merely temples dedicated to the public as a whole, but even those which are founded for the benefit of sections thereof, and denominational temples would thus fall within the scope of this Clause.

Article 25(2)(b) protects the right to enter into a temple for purposes of worship. This, however, is not an unlimited right. Thus, for instance, no Hindu can claim, as part of the right protected by Art. 25(2)(b), that a temple must be kept open for worship at all hours of the day and night, or that he should personally perform those religious services in a temple which the archakas or pujaris are only entitled to perform.34

A restriction on the freedom of religion can be upheld only if it falls within the exception of Clause (1) and (2) of Article 25. It cannot be imposed on any other extraneous consideration. Further, that the restriction must have the authority of law.35

In Bijoe Emmannel v. State of Kerala,36 the Supreme Court explaining the scope of the restrictions which might be imposed on the freedom of religion observed: “these could be imposed either to give effect to the other provisions of Part III of the Constitution or under

33 State of Bombay v. Narasu, AIR 1952 Bom. 84.34 M.P. Jain, Indian Constitutional Law (Lexis Nexis Butterworks, 2010) Pg. 1326.35 Ibid 19, Pg. 330.36 AIR 1987 SC 748.

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the authority of a law made to regulate or restrict any economic, financial, political or secular activity associated with religious practice.”

Use of loudspeakers in temples / mosques etc.

Using the loudspeakers for making noise is not guaranteed by the Constitution. The protagonists of this thought took shelter of Article 19(1) freedom of speech and right to expression. However, nobody can claim a fundamental right to create noise by amplifying the sound of his speech with the help of loudspeakers. In this context, cracking of fireworks on Diwali & using loudspeakers for Ajan in the morning had also come under Supreme Court’s scrutiny. The Court restricted the time of bursting the firecrackers, and it does not in any way violate the religious rights of any person as enshrined under Article 25 of the Constitution. The festival of Diwali is mainly associated with Pooja performed on the auspicious day and not with firecrackers. In no religious textbook it is written that Diwali has to be celebrated by bursting crackers. Diwali is considered as a festival of lights not of noises. In this context, the Government of India framed and published Noise Pollution Control and Regulation Rules, 1999. This legislation was amended in 2002 and empowered the State Governments to permit use of loudspeaker or public address system during night hours (between 10 pm and 12 pm mid-night) on or during the cultural or religious occasions for a limited period not exceeding 15 days.

The Supreme Court in Church of God in India v. K.K.R. Majestic Colony Welfare Assn., held that the Court may issue directions in respect of controlling noise pollution even if such noise was a direct result of and was connected with religious activities. The mandate included the following lines: “Undisputedly, no religion prescribes that prayers should be performed by disturbing the peace of others nor does it preach that they should be through voice amplifiers or beating of drums. In our view, in a civilized society in the name of religion, activities which disturb old or infirm persons, students or children having their sleep in the early hours or during daytime or other persons carrying on other activities cannot be permitted”.

FREEDOM OF RELIGION OF RELIGIOUS DENOMINATIONS ( ARTICLE 26 )

Article 26 provides: “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 purposes;b) To manage its own affairs in matters of religion;c) To own and acquire movable and immovable property; andd) To administer such property in accordance with law.”

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It may be noted that Article 25 is available to all persons while Article 26 is confined to religious denominations.

(a) Meaning of religious denomination

The word “denomination” has been defined in the Oxford Dictionary to mean “a collection of individuals classed together under the same name: a religious sect or body having a common faith and organisation and designated by distinctive name.” a religion can have several sects or sub-sects and each one of them can certainly be called a religious denomination. In many cases, they are known by the name of founder and have a common faith and common spiritual organisation. Thus, the followers of Ramanuja, who are known by the name of Sri Vaishnavas, undoubtedly constitute a religious denomination; and so do the followers of Madhavacharya and other religious teachers. Article 26 contemplates not merely a religious denomination but also a section thereof. The “math” or the spiritual fraternity represented by it can legitimately come within the purview of this Article.37 A religious denomination need not owe allegiance to any parent religion. The entire following of a religion may be no more than the religious denomination. This may be particularly so in the case of small religious groups or developing religions, that is, religions in the formative stage.

While dealing with “religious denomination”, the Andhra Pradesh High Court held that it was the distinct common faith and common spiritual organisation and the belief in a particular religious teacher of philosophy on which the religious denomination was founded or based, that was the essence of the matter; but not any caste or sub-caste or a particular deity worshipped by a particular caste or community.38

It was held in S.P. Mittal v. Union of India,39 that the words religious denomination take their color from the word religion and must satisfy three conditions:

a) It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their well being, that is, a common faith;

b) Common organisation; andc) Designation by a distinct name.

In this case, the Supreme Court on a consideration of Association, income tax particulars and other teachings or writings concluded that neither the Aurobindo Society nor Auroville constitute a religious denomination. The teachings of Shri Aurobindo only represent his philosophy and is not a religion.

A judicial view has been expressed that followers of the Hindu religion, as such, even though numerous and divided into many sects and sub-sects, can be regarded as a ‘religious denomination’, for if it were not so, then while an institution belonging to a sect or a sub-sect

37 Commissioner, HRE v. L.T. Swamier, AIR 1954 SC 282, 289.38 Ramalingayya v. Commissioner, C & HRE, ILR (1971) Andh Pra 320.39 AIR 1983 SC 19.

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of Hindus would get the protection of Art. 26, an institution belonging to the Hindus generally would be deprived of that protection. The term denomination can be used in a larger or narrower sense depending on the context, and therefore, all the followers of a religion may quite appropriately be regarded as constituting a religious denomination.40

In Shastri Yognapurushdasji v. Muldas Bhundardas Vaishya, the Swaminarayan Sampradaya was held not to be a religion distinct and separate from the Hindu religion. A law enacted by the Bombay Legislature threw open every place of worship which was open to all sections and classes of Hindus. The Court ruled that as the Swaminarayan Sect was not a distinct and separate from the Hindu religion, the temples belong to the sect fell under the ambit of this Act.

In Sri K.P.A.S. Committee v. Commissioner of H.R.C.&E,41 the Supreme Court held that Arya Vysya Community, the Hindus worshipping Godess Matha Kanya Kaparameswari were not denominational section for the purpose of Article 26(b) and 26(d) of the Constitution. They were held to be an institution covered by the provision of the Endowments Act. The Court relied on the decision in Sri Adi Visheshwara f Kashi Vishwanath Temple, Varanasi v. State of Uttar Pradesh,42 wherein the Court had held that the Hindu worshippers of Lord Shiva were not a denominational section and therefore, not entitled to the benefit of this Article.

The benefit of Article 26 is not confined to minority groups only. Sikhs, though in majority in Punjab, constitute a ‘religious denomination’ and can thus, take the benefit of this Article.

It has been explained that for a community to be a religious denomination, the common faith of the community, should be based on religion and in that they should have common religious tenets and the basic cord, and the basic cord which connects them, should be religion and not merely considerations of caste or community or societal status. So said, the Apex Court in Nellor Marthandam Vellalar v. Commissioner Hindu Religious and Charitable Endowments43, ruled that Vellala Community could not be said to be a religious denomination so as to seek the protection under Article 26.

An axpansive opinion was expressed by an eleven-Judge Bench in T.M.A.Pai Foundation v. State of Karnataka,44 in respect of Article 26(a) when it said:

“The right to establish and maintain educational institutions may also be sourced to Article 26(a), which grants, in positive terms, the right to every religious denomination or any section thereof to establish and maintain institutions for religious and charitable purposes, subject to public order, morality and health.”

(b) Right to Establish and Maintain Institutions [Article 26(a)]

40 Ramchandra v. State of Orissa AIR 1959 Ori 5.41 AIR 1997 SC 2332.42 JT 1997 (4) 124.43 AIR 2003 SC 4225.44 2002 8 SC 481: AIR 2003 SC 355.

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In Article 26(a), the words ‘establish and maintain’ go hand in hand. It means, therefore, that where an institution has been established by a religious denomination, then it can claim the right to maintain the same as well. The right to ‘maintain’ an institution includes the right to ‘administer’ as well. A denomination has no right to maintain an institution which has not been established by it.

The words ‘establish’ and ‘maintain’ must be read conjunctively. A religious denomination can claim to maintain only those institutions which it has established.

The right under this Article is a group right and is available to every religious denomination or any section thereof, be it of majority or any section thereof.

In Aneez Basha v. Union of India,45 the Aligarh University was established by the Central Government under the Aligarh Muslim University Act, 1920, enacted by Central Legislature. The Supreme Court held that since the University was not established by Muslims, there was no question of the University being managed by them.

The right guaranteed under this Article is subjected to “public order” and “morality” and “health”. It means that the right under Article 26(a) may be restricted on these grounds only and not on some other ground.

The right to maintain an institution for religious and charitable purposes includes the right to exclude the profession or practces belonging to other religions. In Sanjib Kumar v. Principal, St. Paul College, the Principal of the College established by the Christian Missionary Society, refused the petitioner to perform saraswati puja in the College premises. The Calcutta High Court held that the refusal of the Principal did not violate the fundamental right of the petitioner and Principal was entitled to refuse the performance of such a religious practice in the exercise of his right to maintain the institution under Article 26(a).

(b) Right to Manage Matters of Religion [Article 26(b)]

Clause (b) of Article 26 says that a religious denomination or organisation is free to manage its own affairs in ‘matters of religion.’ The State cannot interfere in the exercise of this unless they run counter to public order, health or morality. Accordingly every religious denomination or organisation enjoys complete freedom in the matters of deciding what rites and ceremonies are essential according to the tenets of the religion they hold. The Court has the right to decide whether a particular rite or ceremony is regarded as essential by the tenets of a particular religion.

The right, is, it is to be noted, is confined to “matters of religion”. The term matters of religion includes religious practices, rites and ceremonies considered essential for practice of religion. The right, is however, subject to the regulatory power of the State under clause (2)(b) of Article 25. This means that secular activities connected with religious institutions can be regulated by State by law. The places of worship like temples, mosques, and gurudwaras

45 AIR 1968 SC 662.

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cannot be used for hiding criminals or carrying on anti-national activities. The State has power under Article to prohibit these activities in the places of worship.

What constitutes an integral or essential part of religion has to be determined with reference to its doctrines, practices, tenets, historical background, etc., of the given religion.

In Commr. Of Police v. Acharya J. Avadhutta46, the Apex Court elucidated the expression “an essential part or practice of a religion” to mean those practices which were fundamental to follow a religious belief.

The Court observed:

Freedom to manage religious affairs does not mean creation of any right which it never had. It merely safeguards the existing rights.”

In Commissioner, H.R.E. v. L.T. Swamiar,47 (popularly known as Shirur Math case) Section 21 of the Madras Hindu Religious and Charitable Endowments Act, 1951, which empowered the Commissioner of Endowments and his sub-ordinate officers and also persons authorized by them, to enter the premises of any religious or any duty imposed by or under the Act, was struck down as violative of the guarantee contained in Article 26(b).

Likewise, the appointment of a person of one sect, as achkara of another sect infringes the right of the later sect to manage its religious matters, under Article 26(b).

In Saifuddin Sahib v. State of Bombay,48 the Court explained that Article 26(a) ensured a denomination, the continuity of the denomination. Such continuity was possible only by maintaining the bond of religious discipline, which would secure the continued adherence of its members to certain essentials like faith, doctrines, tenets and practices. The right to such continued existence, the Court held, would involve the right to maintain discipline by taking suitable action, inter alia Court, thus, held that ex-communication of a member of a denomination, solely on religious grounds, and formed part of the management of the matter of religion, through its religious head. The Bombay Prevention of Ex-Communication Act, 1949, which prohibited the head of Dawoodi Bohra Community, from ex-communicating the members of the community, was held to infringe the right of the community secured under Article 26(b).

The Chinnamma v. D.P.I.,49 The Andhra Pradesh High Court upheld the expulsion of a nun belonging to Roman Catholic Mission from sisterhood for the unbecoming conduct on her part.

The Bombay Hindu Places of Public Worship (Entry Authorization) Act, 1956, authorized every Harijan to visit and worship in any temple coming under the Act, ground that it authorized the non-Satsangis to enter the places of worship managed by them, who 46 AIR 2004 SC 2984.47 AIR 1954 SC 282.48 AIR 1962 SC 853.49 AIR 1964 A.P. 277.

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constituted a separate religious sect. the Supreme Court upheld the validity of the Act as its object was to establish social equality between all sections of the Hindus in matters of worship. However, the Court observed that actual worshipping of the Deity would continue to be performed by the authorized pujaries of the temple in accordance with the traditional and conventional manner and by no other devotee entering the temple for darshan.

In Athiest Society of India v. Government of A.P,50 the petitioner, Atheist Society of India, prayed for issuing a writ of mandamus directing the State Government to prohibit breaking of coconuts, performing of pooja, chanting of mantras or sutras of different religions at State functions. The Andhra Pradesh High Court rejected their prayer and held that these practices have been a part of the Indian tradition and meant to invoke the blessings of Almighty for the success of the project undertaken. Such noble thought cannot be found fault with as offensive to anyone. May be that the petitioner’s society who claim to be atheist or do not appreciate the invocation of gods as they do not believe in God. There is no Constitutional guarantee to the faith of the atheists who worship barren reason that there is no god. It is not the object of the Constitution to turn the country into a irreligious place. A secular place does not prohibit the practices of religion. If that is prevented it will infringe the rights of crores of Indians which are granted to them under Article 25 and will run directly contrary to the secular objectives of the preamble of the Constitution which is one of the basic structures. It would deprive them of their right to thought, expression, belief, faith and would amount to abolition of Indian tradition and religious practices.

Right to Own and Administer Property [Articles 26(c) & 26(d)]

Clause (c) of Article 26 secures to a religious denomination or any section thereof “the right to own and acquire movable and immovable property.” Clause (d) further strengthens this right by guaranteeing to the denomination “the right to administer such property in accordance with law.”

Reading these Articles together, it becomes obvious that a distinction has been drawn between the right ‘to manage its religious affairs’ by a religious denomination and its right ‘to manage its property.’ In regard to affairs in matters of religion, the right of management given to a religious body is a guaranteed Fundamental Right which cannot be taken away by Law (subject to certain restrictions). On the other hand, as regards administration of property, which a religious denomination is entitled to own and acquire, it undoubtly has the right to administer such property only in accordance with law.

While matters of religion are entirely outside the place of law, it is not so with respect to property which has to be held and enjoyed according to law. This means that the State can regulate the administration of trust properties by means of laws validly enacted: but here again under Article 26(d), it is the religious denomination or general body of religion itself which has the right to administer this property in accordance with any valid law.

50 AIR 1992 AP 310.

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Any law which takes away the right of administration altogether from the religious denomination and vests it in any other body or a secular authority, would amount to violation of the right which is guaranteed by Article 26(d). Thus, imposition of land revenue on land belonging to a religious denomination is not hit by Article 26 when the burden imposed ‘is a burden to be imposed on the denominational institution. Burden of that nature is outside the right guaranteed by Article 26 of the Constitution.51

Takeover of the management of the Auroville Township for a limited period is not a matter of religion as Auroville is not a place of worship. It is a township dedicated to promote international understanding and world peace. It is a secular and not a religious activity.

Although under Article 26(d), the State can regulate administration of property attached to a religious institution, there is, nevertheless, the condition that the right of administration must always vest in the concerned religious denomination itself which shall administer the property according to law. The State can regulate property of a denomination, but cannot divest it of its right to administer the same and vest it in another body. Whatever restrictions and regulation a law might impose on the denominational right to manage its property, the right of management must still be left with the denomination itself. A law which takes away the right of administration from the hands of the concerned religious denomination altogether and vest it in any other body violates Art. 26(d). In Ratilal Panachand Gandhi v. State of Bombay,52 the Bombay Public Trusts Act, 1950, which provided for the, appointment, by a Court, of the charity Commissioner as a sole trustee of religious public trusts was struck down as violative of the right of the religious denomination under Article 26(d). The Supreme Court has explained the position in this regard as follows:

“….in regard to affairs in matters of religion, the right of management given to a religious body is a guaranteed Fundamental Right which no legislation can take away. On the other hand, as regards administration of property which a religious denomination is entitled to own and acquire, it has undoubtedly the right to administer such property, but only in accordance with law. This means that the State can regulate the administration of trust properties by means of law validly enacted: but here again it should be remembered that under Article 26(d), it is the religious denomination or general body of religion itself which has been given the right to administer its property in accordance with any law which the State may validly impose. A law which takes away the right of administration altogether from the religious denomination and vests it in any other or secular authority, would amount to violation of the right which is guaranteed by Article 26(d) of the Constitution.”

The Muslim Wakfs Act which lays’ down that every member of the Wakfs Board is to be a Muslim is valid as it does not deprive the religious denomination, namely, the Muslims, of

51 M.P Jain, Indian Constitutional Law (lexis nexis butter works) pg 1330.52 AIR 1954 SC 388, 391.

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its right to administer the wakf property.53 Similarly, vesting of the administration of a Hindu temple in a committee consisting of Hindus only does not contravene Article 26(d).54

In State of Rajasthan v. Sajjanlal, 55the Supreme Court held a law valid vesting management of Jain religious trusts in committees of management subject to the condition that the members of the concerned committee should belong to the same denomination to which the particular trust belonged. The government cannot nominate persons of one denomination to manage trust belonging to another denomination. The person authorized to nominate the persons of the Managing Committee need not be part of the denomination.

However, Article 26 does not interfere with the right of the State to acquire property. Also, the right to own and acquire property under Article 26(c), is not a part of basic structure of the Constitution.

The Gujarat Legislature enacted an Act with a view to abolish inams held by a religious or charitable institution. No compensation was payable. The Act was placed in the IX Schedule to the Constitution. The Gujarat High Court declared the Act to be constitutionally valid in S.B. Narayancharya Public Trust v. State of Gujarat. The Court ruled that right conferred by Article 26(c) is not a part of the basic features or structure of the Constitution; it is not absolute and unqualified right to the extent that no agrarian reform can touch upon the lands owned by the religious denomination. The impugned Act fell within the scope of Articles 31A (1)(a) and 31B. The Act was also protected under Article 31C.

Acquisition of a religious place

In Dr. M. Ismail Faruqui v. Union of India, the Supreme Court has considered the question of acquisition of a religious place by the State. A temple, church or a mosque, etc. are essentially immovable properties and subject to protection under Articles 25 and 26. Every immovable property is liable to be acquired. While offer of prayer or worship is a religious practice, its offerings at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as to form an integral part thereof.

Places of worship of any religion having particular significance for that religion, to make it an essential or integral part of religion, stand on a different footing and have to be treated differently and more reverentially. Nevertheless, “the acquisition of any religious place is to be made only in unusual and extraordinary situations for a larger national purpose keeping in view that such acquisition should not result in extinction of the right to practice that religion, if the significance of that place be such. Subject to this condition, the power of acquisition is available for a mosque like any other place of worship of any religion.” The right to worship is not at any and every place, so long as it can be practiced effectively, unless the right to worship at a particular place is itself an integral part of the right.

53 Usman Khan v. Faezulla, AIR 1959 MP 377.54 Ram Chandra v. State of Orissa, AIR 1959 Ori 5.55 AIR 1975 SC 706.

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In Gulam Kadar Ahmadbhai Menon v. Surat Municipal Corporation, the Gujarat High Court has ruled that the acquisition of a religious place or a part thereof can be acquired in public interest for widening of the road. Articles 25 and 26 protect religious practices which are essential and integral part of practice of religion while offer of prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as to form n essential or integral part thereof. Places of worship of any religion having particular significance for that religion to make it an essential or integral part of that religion stand on a different footing and have to be treated differentially and more reverentially than the other places of worship of that religion.

Freedom from Payment of Taxes for Promotion of any Particular Religion (Article 27)

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.

Article 27 prohibits the levying of a tax the proceeds of which are meant specifically for payment of expenses for the promotion or maintenance of any particular religion or religious denomination.

The first condition for this Article to apply is that the levy must be a tax. But where the imposition is in the nature of a fee it does not fall within the prohibition of this Article. There is no generic difference between a tax and a fee and both are different forms in which the taxing power of a State manifests itself. Our Constitution, however, has made a distinction between a tax and a fee for legislative purposes and while there are various entries in the lists with regard to various forms of taxation, there is an entry at the end of each one of these lists as regards fees which could be levied in respect of everyone of the matters that are included therein. A tax is undoubtedly in the nature of a compulsory exaction of money by a public authority for public purposes the payment of which is imposed by law. But the essential thing in a tax is that the imposition is made for public purposes to meet the general expenses of the State without reference to any special benefit to be conferred upon the payers of tax. The taxes collected are all merged in the general revenue of the State to be applied for general public purposes. Thus, tax is a common burden and the only return which the taxpayers get is the participated in the common benefits of the State. Fees, on the other hand, are payments primarily in the public interest but for some special services rendered or some special work done for the benefit of those from whom payments are demanded. Thus, in fees there is always an element of quid pro quo which is absent in tax. Two elements are thus essential in order that a payment may be regarded as a fee. In the first place, it must be levied in consideration of certain services which the individuals accepted either willingly or

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unwillingly. In the second place, the payments collected by way of fees must be specifically appropriated for that purpose and must not be merged in the general revenue of the State to be spent for general public purposes.

The Orissa Hindu Religious Endowments Act, 1939, passed for the better administration and governance of certain religious endowments, imposed on every math or temple having an annual income exceeding Rs 250, an annual contribution for meeting the expenses of the Commissioner and the officers and servants working under him. It was held by the Supreme Court in Shri Jagannath Ramanuj Das v. State of Orissa, that the contribution that was levied by the Act had to be regarded as a fee and not a tax. The payment was demanded only for the purpose of meeting the expenses of the Commissioner and his office which was the machinery set up for due administration of the affairs of the religious institutions. The collections made were not merged in the general public revenue and were not appropriated in the manner laid down for appropriation of expenses for other public purposes. They went to constitute the fund which was contemplated by Section 50 of the Act and to that fund the State Government also contributed both by way of loan and grant and it was specifically set apart for the rendering of services involved in carrying out the provisions of the Act.

But in Commissioner, Hindu Religious Endowments v. L.T. Swamiar, the Supreme Court held that the contribution levied under the Madras Hindu Religious and Charitable Endowments Act, 1951 was in the nature of a tax and not fee. The following reasons we stated for holding the contribution of a tax :

i. The money raised by the levy of the contribution was not earmarked or specified for defraying the expenses that the government had to incur in performing the new services;

ii. All the collections went to the Consolidated Fund of the State and all the expenses had to be met not out of those collections but out of the general revenue by a proper method of appropriation as was done in the case of other government expenses; and

iii. There was total absence of any co-relation between the expenses incurred by the government and the amount raised by contribution under the provisions of Section 76 and in those circumstances the theory of a return or counter-payment of quid pro quo could not have any possible application to that case.

Another condition for the applicability of the Article is that the proceeds of the tax must be specifically appropriated in payments of expenses for the promotion or maintenance of any particular religion or religious denomination. In relation to this condition, the Supreme Court has said:

What is forbidden by Article 27 is the specific appropriation of the proceeds of any tax in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. The reason underlying this provision is obvious. Ours being a secular State and there being freedom of religion guaranteed by the Constitution, both to individuals and

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to groups, it is against the policy of the Constitution to pay, out of public funds any money for the promotion or maintenance of any particular religion or religious denomination.”56

In Commr., Hindu Religious Endowments v. L.T. Swamiar,57 the contribution levied under the Act, though in nature of a tax, aws not hit by Article 27. The reason was that the contribution levied under the Act was not for fostering or preserving of Hindu religion or any denomination within it. The purpose was to see that religious trusts and institutions wherever they existed were properly administered. It was the secular administration that the Legislature sought to control so as to ensure that the endowments attached to the religious institutions were properly administered and their income was duly appropriated for the purposes for which they had been founded. There was no question of favoring any particular religion or religious denomination.

For the same reason in Shri Jagannath Ramanuj Das v. State of Orissa, 58the contribution, even if treated as a tax, did not come within the purview of the latter part of the Article at all. The object of the contribution under Section 49 was not the fostering or preservation of Hindu religion or of any denomination within it, and since there was no question of favoring any particular religion or religious denomination, Article 27 had no application.

In Suresh Chandra v. Union of India,59the petitioner challenged the validity of the programmed of celebration of the 2500th anniversary of the attainment of salvation of the founder of the Jain religion, Mahavira, as this celebration amounted to promotion and maintenance of Jainism in contravention of Article 27. Rejecting the contention of the petitioners, the Court held that commemoration of distinguished persons, who had contributed to India’s cultural heritage, was done with a view to focusing attention on their ideals, to kindle in our younger generation an awareness of our heritage and to promote international understanding, and that the celebrations involved no religious rites or ceremonies hence no infringement of Artifice 27.

It has also been held that the creation of an education fund under Section 27 of the West Bengal Wakf Act, 1934 as amended in 1973 for the exclusive benefit of the Muslim boys and girls did not amount to levy of tax for the promotion of a particular religion. It did not also amount to the maintenance of that religion.60 Again, in K. Raghunath v. State, 61expenditure from the State fund for the reconstruction among others, of the religious and educational places damaged during communal riots was upheld notwithstanding the fact that the damaged places belonged to any one religion. Acquisition of land for construction of a temple has also been upheld.62

56 Commr., Hindu Religious Endowments v. L.T.Swamiar, AIR 1954 SC 282.57 AIR 1954 SC 282.58 AIR 1954 SC 400, 403.59 AIR 1975 Del 168.60 Bashir Ahmed v. State of W.B., AIR 1976 Cal 142.61 AIR 1974 Ker 48.62 Papanna v. State, AIR 1983 Kar. 94.

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PROHIBITION OF RELIGIOUS INSTRUCTIONS IN EDUCATIONAL INSTITUTIONS

According to Article 28(1) no religious instruction shall be imparted in any educational institute wholly maintained out of State funds. But this clause shall not 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 institutions. Under Clause 1(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 religious instruction that may be imparted in such institutions or to attend any religious worship that may be conducted in such institutions or to attend any religious worship that may be conducted in such institution or to any premises attached thereto unless such person or if such person is a minor his guardian has given his consent thereto. Thus Article 28 mentions four types of educational institutions:

a) Institutions wholly maintained by the State;b) Institutions recognized by the State;c) Institutions that are receiving aid out of the State fund; andd) Institutions that are administered by the State but are established under any trust or

endowment.

In the institutions of (a) type no religious instructions can be imparted. In (b) and (c) type institutions religious instructions may be imparted only with consent of the individuals. In the (d) type institution, there is no restriction on religious instructions.

In D.A.V. College, Jullundhar v. State of Punjab,63 the validity of Section 4 of the Guru Nanak University Act which directed the State to make provision for the study and research on the life and teachings of Guru Nanak.

Supreme Court held that the Act establishing the University did not imply that religious instructions would be imparted therein. It was to encourage an academic study of the life and teachings of Guru Nanak, which did not necessarily amount to religious instruction or promotion of any particular religion. A provision for an academic study of the life and teaching of the philosophy and culture of any great saint of India in relation to, or their impact on the Indian and world civilization, the Court held, could not be taken as providing for religious instructions relating to a particular religion.

In Aruna Roy v. Union of India,64 the Apex Court held that Article 28(1) did not prohibit education of religion dissociated from “tenets”, the rituals, observances, ceremonies and modes of worship of a particular sect or denomination. “The Court distinguished between “religious instructions” and “study of religion.” What are prohibited are the former and not the latter. “recommending that students be acquained with the basics of all religions, the

63 AIR 1971 SC 1737.64 AIR 2002 SC 3176.

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values inherited therein and also a comparative study of philosophy of religions”, the Court held “neither offends Article 28 nor brings secularism to peril.”

In the words of DHARMADHIKARI, J.: “study of religions, therefore, in school education cannot be held to be an attempt against the secular philosophy of the Constitution.”

BIBLIOGRAPHY

Arvind P. Datar, Commentry on Constitution of India, 2nd Edition, 2007. Dr. J.N. Pandey, the Constitution of India, Central Law Agency, 52nd Edition, 2015. Dr. M.P. Jain, Indian Constitutional Law, Lexis Nexis, Butterworths, Nagpur, 2002. Dr. V.N. Shukla, the Constitution of India, Eastern Book Company, 2008. Narender Kumar, Constitutional Law of India, Allahabad Law Agency, 2014.