Author: Supragya Singh, Student, R.M.L.N.L.U., Lucknow.

Edited by: Madhumita Saha, Student, Lajpat Rai Law College, Sambalpur University, Odisha.

INTRODUCTION

Mahatma Gandhi once said, “There is a higher court than courts of justice and that is the court of conscience. It supersedes all other courts.[1]” The quote by Mahatma Gandhi emphasizes the importance of one’s conscience in a free country, especially in the Indian scenario.

Religious diversity is spread across India, where many govern themselves through values enshrined in their religion. The Indian state is still a secular country with no particular inclination towards a specific religion, even though Hinduism happens to be the majority religion in the country. With the vast diversity of religious identities prevalent, the Indian state guarantees every person a right to religion, which also extends to religious groups. The Indian Constitution provides the ‘Right to Religion’ as a fundamental right in Part III of the Constitution. Art 25-28 deals with aspects of this right – dealt with as an individual and a community right.

Article 25, for instance, gives an individual the right to conscience and religion, whereas Art. 26 deals with the religious rights of a denomination. Art. 27 pertains to non-payment of taxes from the amount which has to be appropriated for the promotion and welfare of a particular religion. Art. 28 pertains to restrictions on imparting religious instruction at educational institutions.

Keywords: Religion, Right, Extent, Essential, Precedents

• Extent of the Right to Religion

Right to Religion as under Art. 25 provides all persons in India the freedom to conscience, i.e., their sense of right or wrong; this would include one’s right to follow a religion and one’s right not to follow any religion but rather one’s belief system.

Additionally, the right is conferred not only upon individuals but also upon religious denominations or any section of them, as can be read from Art. 26. Hence, the right to religion under the Indian Constitution is an individual and a community right that is bestowed to follow or not follow a religion.

As per Art. 25, an individual’s right to follow a religion would include their freedom to profess freely, practice that religion, and propagate it. This implies that the right given under the constitution frees the individual to believe in faith and overtly express it. The collective right under Art. 26 allows a religious denomination or any section of it to manage their religious affairs, establish and maintain their institutions for religious and charitable purposes, own and acquire property, and administer it as per law.

The term religion per se is not defined in the Constitution; the right to religion remains with individuals and religious groups. The Supreme Court of India, in the 1954 Shirur mutt[2], presented a comprehensive definition of religion. To quote the court’s words verbatim, “Religion is certainly 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 in God or any intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion is conducive to their spiritual well-being, but it would 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, but it might also prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observations might extend even to matters of food and dress.[3]” A definition is crucial in knowing the extent to which a right can be exercised. Hence, knowing what would be protected as a religious right becomes highly relevant.

• Limitations

Art. 25 and Art. 26 impose specific limitations or restrictions upon them: ‘public order,’ ‘morality,’ and ‘health’ serve to restrict the extent of the rights given under Art. 25 and 26.

Public order would seek to prevent any disorder due to a religious practice or belief. Morality refers to the Constitutional Morality relating to the principles enshrined in the Constitution. Any act as a consequence of religious belief conflicting with constitutional morality would not get protection as a religious right. ‘Health’ would also exempt acts of religion from getting protection as a right.

Another limitation can be realized by reading clause (1) of Art. 25, i.e., the Right to religion is subject to other provisions of the Constitution’s Part III (Fundamental Rights). This also implies that fundamental rights possess a form of gradation among them, though not a subject of this article. A harmony would need to be maintained among the Fundamental Rights, for the right to religion cannot override any other fundamental right in the Constitution.

The question is – What exactly would be protected under ‘right to religion’? This is answered through the ‘Essential Religious Practices doctrine,’ where the protection granted is precisely to those religious practices essential to that religion. The doctrine evolved in the case of Shirur Mutt.[4] The court in the case also said, “What constitutes the essential part of a religion is primarily to be ascertained concerning the doctrines of that religion itself.”[5]

• Exceptions to the Right to Religion

Not just limitations, the right to religion is further reduced in extent by the exceptions provided under them in the Constitution. Art. 25(2) outlines the exceptions to the right to religion. The said clause mentions two exceptions – (a)one pertains to economic, financial, political, or secular activities associated with religious practice; (b)the other pertains to providing welfare and social reform by the state and opening the public Hindu religious institutions to all sections and classes of Hindus.

The infringement on the right to religion would be justified if it falls under either sub-clause (a) or (b) exceptions. Several reform measures, such as The Commission of Sati (Prevention) Act of 1987[6], are justified and protected under Art. 25(2)(b). Relevant to this is the case of Syedna Taher Saifuddin Saheb v. State of Bombay[7], where the court stated, “In my view, the phrase ‘laws providing for social welfare and reform’ was not intended to enable the legislature to ‘reform,’ a religion out of existence or identity. Article 25(2)(a) having provided for legislation dealing with ‘economic, financial, political or secular activity which may be associated with religious practices,’ the succeeding clause proceeds to deal with other activities of religious groups and these also must be those which are associated with religion. Just as the activities referred to in Art. 25(2)(a) are not of the essence of the religion, similarly the saving in Art. 25(2)(b) is not intended to cover the essentials of the creed of a religion which is protected by Art. 25(1).”[8]

Thus, the essentiality of a religion is crucially protected, notwithstanding the exceptions. However, the exceptions would still apply to any other religious practice.

• Essential Religious Practices Doctrine

Evolved through the case of Shirur Mutt[9], the essential religious practices doctrine says that the essential practices of religion shall be protected as a part of the right to religion.

The diminishing scope of what would be protected as a matter of religious right through different imposed limitations, other preponderant fundamental rights, and further exceptions make the essential religious practices doctrine vital in preserving a religious identity’s essence from diminishing.

The doctrine distinguishes religious practices that may be restricted, regulated, or prohibited from essential religious practices forming the core of religious identity that shall be granted special protection under the right to religion in the Constitution.

The question whether which religious practice is essential to a specific religion is answered by the Court on a case-to-case basis by referring to the doctrines of that religion. Thus, the doctrine has long served as crucial and relevant in deciding which religious practice needs special protection under the Constitution.

• Article 27 and Article 28

Article 27 of the Constitution prohibits the state from levying tax on the amount specifically meant to promote and maintain a particular religion or religious denomination.

Article 28, on the other hand, relates to imparting religious instructions at educational institutions. The article talks of three kinds of educational institutes – 1) one maintained entirely from state funds, 2) one administered by the state but established under endowment or trust, and 3) one recognized by the state or receiving help from state funds.

Art. 28(1)[10] States that religious instructions should not be imparted in an educational institute of the first kind. Art. 28(2)[11], creating an exception to Art. 28(1) states that religious instruction can be imparted in the educational institute of a second kind if the endowment or trust so requires. Art. 28(3)[12] says that an individual in the academic institute of the third kind cannot be compelled to attend religious instructions or religious worship at such institute or premises attached to it without the individual’s consent or for the minor’s – the consent of their parents/guardian.

Thereby, Art. 27 and 28 further the right to religion while strengthening the secular foundation of the Constitution and the state.

• Case Laws Relating to the Right to Religion

A few of the prominent case laws relating to the provisions of the right to religion include –

• The Commr, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt[13] – The case is prominent for presenting a comprehensive yet not rigid definition of ‘religion’ and bringing into the picture what is now known as the ‘Essential Religious Doctrine.’ The case aided in understanding what is included in the term ‘religion’ used in Art. 25. It established that the term would include religious practices, rituals, and doctrines essential to a religion.
• The Durgah Committee, Ajmer v. Syed Hussain Ali[14] – The court here emphasized the right of religious denomination or any section of it to manage their religious affairs as under Art. 26(b) would include not only religious belief or doctrine but also a right to manage its affairs related to religious practices, rituals, ceremonies, and modes of worship (as was defined in the case of Shirur Mutt[15]) provided they are integral to that religion.
• Mahant Sri Jagannath Ramanuj Das v. The State of Orissa[16] – In this case, the court said that Art. 27 applies to tax, which shall not be levied on the amount used for promoting and maintaining religion. The court emphasized that it is the tax and not the ‘fee’ that is prohibited from being levied in such matters. A tax involves exaction of money for public purposes to meet the general expenses of the state. The amount collected through tax is merged into the state’s general revenue. On the other hand, a fee is collected for a specific purpose, though in the public interest, and the amount collected through a fee is not merged into the state’s general revenue for general public purposes. The benefit of the fee accrues to those from whom the payments were demanded. The case dealt with the Orissa Hindu Religious Endowments Act of 1939 provisions. A specific provision imposed on every math or temple with annual income above ₹250, some annual contribution to meet the expenses of the Commissioner, the officers, and servants working under them. The court held that the amount levied was a fee, hence not violative of Art. 27.
• A.V. College v. State of Punjab[17] – In this case, the validity of section 4 of the Guru Nanak University Act, which instructed the state to make provision for the study and research on the life and teachings of Guru Nanak, was challenged on the ground that as the institution was wholly maintained out of state funds, the section conflicts with Art—28 (1) of the Constitution. The court, however, held that there was no violation of the said Article as the section instructs to encourage the academic study of the life and teachings of Guru Nanak, which are not per se religious instructions or attempts to promote any specific religion.

These prominent case laws, along with many other case laws, though not mentioned here, have lucidly moulded the contours of the right to religion.

• CONCLUSION & COMMENTS

Thus, it can be said that the right to conscience and religion has an important place in the Constitution as a fundamental right. Albert Einstein once said, “Never do anything against conscience even if the state demands it.[18]” Allowing an individual to pursue their conscience freely gives way to an individual’s growth & well-being and can also give way to the betterment of society. On the contrary, it would be relevant to recall the saying of George Bernard Shaw, “There is nothing more dangerous than the conscience of a bigot.[19]” Conscience and faith can sometimes also give way to divisive or inimical forces.

In this regard, the Constitution of India has tread carefully to make a delicate balance regarding the extent to which the right to religion should be protected as a fundamental right. Limitations and exceptions are thereby laid upon the right to religion. This has also served to maintain the secular nature of the state. The doctrine of essential religious practice introduced in the Shirur Mutt[20] case has long served as necessary and relevant in knowing the specificity of the right to religion.

The different aspects of the right to religion have often been clarified in various case laws by the judiciary. These have helped elucidate the extent to which the right to religion can be exercised and protected further. Thus, the constitutional provisions and other judicial developments have helped establish the right to religion in a balanced manner while upholding the secular nature of the state.

• REFERENCES
• Books Referred
  1. N. Shukla, Constitution of India, 13^th Edition
  2. Lecture on Constitutional Law and Legislative Drafting, Volume I, Institute of Judicial Training and Research Uttar Pradesh
  3. D. Mahajan, Constitutional Law of India, 8^th Edition
• Online Sources Referred
  1. BrainyMedia Inc, 2024, BrainyQuote.com
• Cases Referred
  1. The Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282
  2. Syedna Taher Saifuddin Saheb v. The State of Bombay, AIR 1962 SC 853
  3. The Durgah Committee, Ajmer v. Syed Hussain Ali, 1962 SCR (1) 383, AIR 1961 SC 1402
  4. Mahant Sri Jagannath Ramanuj Das v. The State of Orissa, 1954 SCR 1046, AIR 1954 SC 400
  5. A.V. College v. State of Punjab, 1971 SCR 688, (1971) 2 SCC 269
• Statutes Referred
  1. Constitution of India (1950), Art. 25(1)
  2. Constitution of India (1950), Art. 25(2)(a)
  3. Constitution of India (1950), Art. 25(2)(b)
  4. Constitution of India (1950), Art. 26(a)
  5. Constitution of India (1950), Art. 26(b)
  6. Constitution of India (1950), Art. 26(c)
  7. Constitution of India (1950), Art. 26(d)
  8. Constitution of India (1950), Art. 27
  9. Constitution of India (1950), Art. 28(1)
  10. Constitution of India (1950), Art. 28(2)
  11. Constitution of India (1950), Art. 28(3)
  12. The Commission of Sati (Prevention) Act, 1987

[1] Quotes of Gandhi (UBS Publishers, New Delhi 1995) 34

[2] The Commr, Hindu Religious Endowments v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005, AIR 1954 SC 282

[3] Ibid, (AIR) 290

[4] The Commr, Hindu Religious Endowments v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005, AIR 1954 SC 282

[5] Ibid

[6] The Commission of Sati (Prevention) Act 1987

[7] Syedna Taher Saifuddin Saheb v The State of Bombay, 1962 SCR Supp (2) 496, AIR 1962 SC 853

[8] Ibid, (AIR) 875-876

[9] The Commr, Hindu Religious Endowments v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005, AIR 1954 SC 282

[10] Constitution of India 1950, Art 28(1)

[11] Constitution of India 1950, Art 28(2)

[12] Constitution of India 1950, Art 28(3)

[13] The Commr, Hindu Religious Endowments v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005, AIR 1954 SC 282

[14] The Durgah Committee, Ajmer v Syed Hussain Ali, 1962 SCR (1) 383, AIR 1961 SC 1402

[15] The Commr, Hindu Religious Endowments v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005, AIR 1954 SC 282

[16] Mahant Sri Jagannath Ramanuj Das v The State of Orissa, 1954 SCR 1046, AIR 1954 SC 400

[17] D A V College v State of Punjab, 1971 SCR 688, (1971) 2 SCC 269

[18] Paul Arthur Schilpp, Albert Einstein: Philosopher-Scientist (first published 1949, 3^rd edn, MJF Books 1949), Vol 7, 653

[19] BrainyMedia Inc, 2024, “George Bernard Shaw Quotes” < BrainyQuote.com> accessed 4 August 2024

[20] The Commr, Hindu Religious Endowments v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005, AIR 1954 SC 282