Freedom of Religion (Articles 26-28)

Theoretical overview

The right to freedom of religion given under article 25 to 28 of the Indian constitution declares India a secular state. It only means that in matter of religion, it is neutral. Secularism is thus neither anti-god or pro-god. It eliminates God from the matters of the state and shows that no one shall be discriminated against on the ground of the religion. The state can have no religion of it own it should treat all religions equally. It is only concerned with the relation between man and man. It is not considered with the relation of man with God and is left to the individual’s conscience.

Article 25

Article 25 of the Indian constitution guarantees to every citizen the freedom of conscience and the right to profess, practice and propagate its religion. Also, under sub clause A and B of clause 2 of article 25 the state is empowered by law

• to regulate restrict any economic financial political or other secular activity which may be associated with religious practice 
• to provide for social welfare and reform and to throw upon Hindu religious institutions of public character to all classes and sections of Hindu

Though, the term religion is not defined in the constitution, the supreme court has very well defined it in its various judgements. Religion has its own basis in a system of belief or doctrines which are regarded by those who profess that religion conducive to their spiritual well-being. Every person has right not only to entertain such religious belief and ideas as may be approved by his judgement or conscience but also exhibits his belief and ideas by such overt act which are sanctioned by his religion.

This particular article give freedom to conscience in the sense that it is the absolute inner freedom of the citizen to mold his own relation with God in whatever manner he likes and freedom to profess, practice and propagate in the sense that he is free to expand, perform and choose his own religion.

The state cannot regulate the manner in which the worship of the deity is performed by the authorized pujaris of the temple or the hours and days on which the temple is to be kept open for darshan or puja for devotees. The right of Sikhs to wear and carry kirpans is recognized under this article but it does not mean that they will keep any numbers of kirpan.

Article 26

Article 26 of the Indian constitution talks about the freedom to manage religious affairs. This particular article is the right of an organized body like the religious denomination. It describes the following rights-

Right to establish and maintain institutions for religious and charitable purposes– the words establish and maintain must be read together as only those institutions which a religious denomination establishes can have a claim to maintain it.

Right to manage matters of religion – the term matters of religion include religious practices, rites, and ceremonies considered essential for practice of religion. The sate cannot interfere in the exercise of this right unless they run counter to public order, health or morality.

Right to administer property owned by denomination – a religious denomination has the right to acquire and own property and to administer such property in accordance with law. This particular clause must be subject to state regulation. This clause does not create any new rights but simply protect the continuance of the existing rights.

Article 27

Article 27 of the Indian constitution talks about freedom from taxes for promotion of any particular religion. This article emphasizes the secular character of the state as collecting tax for the promotion of any particular religion is against the secular policy of constitution to pay out public funds. The prohibition is of aid to any particular religion.

Article 28

Article 28 of the Indian constitution talks about religious instruction in state-aided institutions. This article mentions four types of educational institutions 

1. institutions wholly maintained by the state 
2. institutions recognized by the state 
3. institutions that are receiving aid out of the state fund 
4. institution 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 of institutions, religious instructions can be imparted only with the consent of the individuals. In the (D) type of institutions there is no restriction on religious instructions.  

Relevant articles

Section 25.– Freedom of conscience and free profession, practice and propagation of religion

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly

Section 26.– Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right

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

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

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

(d) to administer such property in accordance with law

Section 27.– Freedom as to payment of taxes for promotion of any particular religion No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religions denomination

Section 28.– Freedom as to attendance at religious instruction or religious worship in certain educational institutions

(1) No religion instruction shall be provided in any educational institution wholly maintained out of State funds

(2) Nothing in clause ( 1 ) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution

(3) No person attending any educational institution recognised 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 institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto Cultural and Educational Rights

Important case laws

S.P. Mittal vs Union of India,1982 – SC gave 3 conditions which are required to be fulfilled by religious denomination. These were –

• Collection of individuals having common faith
• A common organization
• Designation by a distinctive name

Bijoe Emmanual vs State of kerela,1986 – no person can be forced to do something which is not allowed in his religion.

Points to remember 

• The right to freedom of religion given under article 25 to 28 of the Indian constitution declares India a secular state. It only means that in matter of religion, it is neutral. Secularism is thus neither anti-god or pro-god
• Article 25 of the Indian constitution guarantees to every citizen the freedom of conscience and the right to profess, practice and propagate its religion
• Though, the term religion is not defined in the constitution, the supreme court has very well defined it in its various judgements. Religion has its own basis in a system of belief or doctrines which are regarded by those who profess that religion conducive to their spiritual well being
• Article 26 of the Indian constitution talks about the freedom to manage religious affairs. This particular article is the right of an organized body like the religious denomination
• Article 27 of the Indian constitution talks about freedom from taxes for promotion of any particular religion
• Article 28 of the Indian constitution talks about religious instruction in state-aided institutions