Article 25 & 26 – Constitution of India

Indian secularism is not anti-religious (wall of separation in USA – American version of secularism erects a strict wall of separation between the state and religion.) but is equal treatment of all religions

This was done so as to reform evil practices prevalent in Indian society such as devdasi, untouchability, Sati etc.
This freedom seeks to bring social equality
Religion need not be theistic. Eg – Buddhism, Jainism
Religion is system of belief and doctrines which are regarded as those who profess that religion to be conducive to their wellbeing. It also includes rituals, ceremonies, observances and modes of worship. It thus also includes religious practices.
Religion consists of essential and non-essential practices. Article 25 & 26 protect only those practice which are essential and integral to that religion.
The State can regulate secular or temporal matters associated with religion but not essential religious practices.
What constitutes essential or integral part of his religion is a matter for court to decide with reference to the doctrines of a particular religion and includes practices regarded by community as part of religion.
Indian secularism does not follow equidistance but principled approach.

Essential Features of Secularism in India:-

Freedom of practice, profess and propagate religion. (Article 25)
Right of every religious denomination to manage its own affairs in matters of religion. (Article 26)
Right against taxation proceed of which goes towards benefit of any religion. (Article 27)
Right against religious education in state institutions. (Article 28)
State shall have no official religion.
There should be no discrimination on the ground of religion. This has been ensured by Articles 14, 15(1) and (2), Articles 16(2) , 29(2) and 325.

Secularism part of basic structure. (SR Bommai v. Union of India)

Every denomination has the right to set up religious institutions subject to certain provisions. (Article 26)

Denomination is a collection of individuals, classed together under the same name.

Characteristics of Denominations (SP Mittal v Union of India):

Common faith
Common organization
Designation by distinctive name

Bijoe Emmanuel v State of Kerala

Three children belonging to Jehovah’s Witness refused to sing the National Anthem. They refrained from actual singing but only because of their aforesaid honest belief and conviction and used to stand up in respectful silence daily, during the morning assembly when the National Anthem was sung.The school expelled them for not singing the national anthem.

The court held that refusal to sing the anthem did not constitute an offence under Prevention of Insults to National Honor Act 1971 as they had not shown any disrespect to national anthem. The court held that not singing the national anthem was an aspect of free speech under Article 19(1) (a) which includes the freedom of silence which could be curtailed only under the grounds mentioned under Article 19(2).

Commissioner of Police v JagdishwaranandaAvadhut

The Commissioner of Police, Calcutta imposed a ban on Tandava Dance performed in public place and streets. Commissioner’s order was challenged by the followers of Anand Marga as infringing their rights under Article 25 and 26. The Court went through the origins of Ananda Marga and found that Tandava dance performed by carrying trident, snakes,damroo, lathi, and human skull in public is not an essential part of Anand Marga.

M Ismail Faruqui v Union of India

Constitutionality of an Act which temporary vested in the Central Government the disputed and adjacent land in Ayodhya where Babri Masjid existed. The court apart from holding that the act was not ultra vires to the constitution also held:

Right to practice, profess and propagate religion does not include the right to acquire, own and dispose of property.
The State has power to a acquire Mosque/ Temple or other religious places.
Right to freedom of religion does not extend to the right to worship at any and every place of worship.
A mosque is not an essential part of practice Islam and Namaz can be offered anywhere even in open.

Sheshamal v State of Tamil Nadu

An act was passed which made certain hereditary religious offices non-hereditary and prescribed certain qualifications for them irrespective of caste, creed or race. The Act was passed with an object of social reform measure, and was challenged on the ground of violation of Article 25 (1) and 26 (B).
Petitioner contended that under the law a trustee could appoint any one as priest if he possessed requisite qualifications irrespective of his being a Savaite or Vaisnavite which constituted a violation of freedom of religion.
The Court held that the appointment of a priest was a secular act and appointment of priest on hereditary principle despite its religious usage was not an integral part of religion. The Court upheld the validity of the law.

Rev Stanislaus v State of MP

State of Madhya Pradesh and Orissa passed laws prohibiting conversion by force, fraud or inducement.
These laws were challenged as violative of Article 25 of the Constitution.
The apex court held that the right to propagate religion guaranteed by Article 25(1) includes right to propagate but does not guarantee a right to convert another to one’s own religion.

Lily Thomas v Union of India

Husband, while still married to his first wife, converted to Islam in order to marry another woman. When first wife sued under bigamy, husband claimed that his conversion, under right of freedom of religion (Art 25), was valid and his new religion allowed multiple wives.
Court held that one cannot convert so as to take advantage of a personal law.
Freedom of religion is not violated by a law to punish a Hindu convert to Islam for bigamy if he contracts another marriage while the first marriage subsists.

Church of God v. KKR Majestic Colony Welfare Association

The court justified the Environment Protection Rules (1986), which prohibits noise pollution, on the grounds that loud preaching is not an essential or integral part of the religion.
Further even if loud preaching is deemed to be essential and integral practice of a religion, the loud preaching would violate a person’s liberty to not hear something they didn’t want to.
Court held that freedom of religion cannot violate any of the other fundamental rights.

Sri Adi Vishashwara of Kashi Vishwanath v State of UP

A law providing for board of trustees for the management of Kashi Vishwanath Temple after taking over from temple priests was held not to interference in matters of religion but only a regulation of the administration of the temple which was in an awful condition.

Atheist Society of India v. State of Andhra Pradesh (1992)

Petitioner wanted to stop practices such as Bhoomi Pujan, and chanting of mantras by the government in its official functions
Court held that these practices are cultural and not religious, done to invoke blessing of god
Judgment much criticised as this affect atheist’s right to conscience

Saifuddin Saheb v State of Bombay

The Bombay government enacted a law called Prevention of Excommunication Act to prohibit ex-communication on the ground of religion prevalent in Dawood Bohra sect of Muslims.
The Supreme Court held the Act was unconstitutional on the ground that the power of the head of Dawood Bohra community to excommunicate was absolute and an essential part of religion and the State could not interfere in the matter of religion.
Here there was a conflict between the individual’s right to freedom of religion and religious denomination’s right to manage its affairs in matters of religion. The court gave primacy to the right of religious denomination over the right of the individual. This judgment was another example of legal positivism of the Indian Supreme Court.

Mohd Hanif Quareshi v State of Bihar

Constitutionality of a legislation prohibiting cow slaughter was challenged as infringing the rights of Muslims to sacrifice cows on Bakr-Id day. After going through the Islamic scripture Koran, the Supreme Court held that sacrifice of cow on Bakr Id day was not an essential part of Islam because there was an option of a cow, a camel or six goats to be sacrificed on this day. Therefore slaughtering of cows could be restricted by legislation.

T.M.A. Pai Foundation v State of Karnataka

Prior to this case, it was undecided whether right to establish and maintain religious institutions for charitable purposes under 26(a) would also cover the establishment of institutions for general education. However, the Court in TMA finally established that religious denomination do have the right under 26(a) to establish and maintain institutions for general education, recognizing education as charity. (The right cannot be claimed or defended is the education is not being provided as a charity)

St Xavier College v State of Gujarat

Gujarat University imposed following conditions on every college affiliated to university

One nominee in governing body by vice chancellor of university
If college takes any action against any teacher, suspend or remove, no such action can be taken by any member of staff except for approval of vice chancellor
If any dispute arises between the management of college and teaching staff such dispute shall be referred to arbitration and the adjudicator will be the nominee of vice chancellor

Court held that these provisions are inapplicable to a minority institute rights. However minority institutes under Article 30(1) were not free from regulation and regulatory measures necessary to ensure orderly, efficient and sound administration. The court decided that the minority institute possess the following rights:-

Right to choose the personnel of the members of Governing Body
Right to admit students of their choice
Right to appoint teachers
Right to take disciplinary action against the staff and students
Right to use property and assets for the benefit of the institution.

The court also held that minority institutes are subject to the following:-

Regulations relating discipline, health, sanitation, morality, public order, observance of labour standards, syllabi, courses of study, qualification of teachers are permissible as they promote the excellence of the institution.
Minority institutions can also be required to follow general laws relating to contract, industrial laws, norms of natural justice and norms of fair employment.

Court also held that no regulations could be imposed on minority institutions on grounds of national interest.

Frank Anthony Public School Employees Association v Union of India

Frank Anthony Public School was governed by Delhi education act, Section 12 of which had provision regarding service conditions of the teachers
Pay and allowances given to teachers of private schools whether aided or unaided shall not be less than their counterparts in government schools.
Frank Anthony Public School Employee Association sought revision of their salary so as to seek parity in income; also all teachers teaching for same work should get same salary on basis of equality enshrined in Article 14
Respondent contended that they are a reputed school and charge very less fee and hence cannot afford to pay the same salary and they will have to shut if they have to pay same salary
Court held that right of employees to get equal salary was violated and payment of salary to a teacher was not part of administration and hence article 30 was not violated.

St. Stephen’s College v University of Delhi

St. Stephen had admission procedure different from Delhi University and used to conduct an oral interview
Further seats were reserved for Christians in the college
Delhi Students Union filed a writ petition contending that as the college was state aided college it cannot deny students on basis of religion (Article 29(2))
Court acknowledged that St Stephens is a minority institution and right to administer institute includes right to admit students of own preference
Court also took into consideration that St. Stephens was also takes funding from government and since it is an aided institute it cannot deny students admission to non-minority student on basis of religion
Court then held that St. Stephens can reserve seats for minority students not exceeding 50%

TMA Pai Foundation v. State Of Karnataka

Held education is an occupation under Article 19(1)(g) of constitution
Under article 26 every religious denomination has the right to establish educational institution since education is a charitable organization
Minority has an additional right under Article 30(1) to establish an educational institution of their choice
Unaided private schools (minority or not) cannot be compelled to follow reservation policy of the state.
Unaided institute can have any reasonable fee structure and state cannot interfere with it

Regulations can be framed in national interest and such regulations should equally apply to minority institutions.

Article 32 – Concept and Purpose

Article 32 of the Indian Constitution gives the right to individuals to move to the Supreme Court to seek justice when they feel that their right has been ‘unduly deprived’.
The apex court is given the authority to issue directions or orders for the execution of any of the rights bestowed by the constitution as it is considered ‘the protector and guarantor of Fundamental Rights’.
Under Article 32, the parliament can also entrust any other court to exercise the power of the Supreme Court, provided that it is within its Jurisdiction. And unless there is some Constitutional amendment, the rights guaranteed by this Article cannot be suspended.

Dr. Ambedkar stated that:

“If I was asked to name any particular article in this Constitution as the most important- an article without which this Constitution would be a nullity— I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realized its importance.