Articles 25-28 and Right to Freedom of Religion in India
Article 25 to 28 of the constitution of India guarantees the right of Freedom of religion.
- Articles in Constitution
- Freedom of religion and Secularism in Indian Constitution
- Is being a Hindu means No secular?
- Meaning of Public order, morality and health
- Is right to performing rituals protected?
- Does Constitution allow use of loudspeakers in temples / mosques etc.?
- Implications of Article 25 & 26 not being absolute
Articles in Constitution
- Article 25. Freedom of conscience and free profession, practice and propagation of religion.
- Article 26. Freedom to manage religious affairs.
- Article 27. Freedom as to payment of taxes for promotion of any particular religion.
- Article 28. Freedom as to attendance at religious instruction or religious worship in certain education institutions.
Freedom of religion and Secularism in Indian Constitution
Though the Right to freedom of speech and expression (Article 19) envisages the philosophy of freedom of religion in India because despite of the creation of Pakistan, a lot of Muslims were scattered all over India, part from Sikhs, Parsees, Christians and others. Yet the constituent assembly made it explicit by incorporating a separate group of Articles as per a agreement with / recommendation of Advisory Committee on Fundamental Rights, Minorities, Tribal and Excluded Areas (Chairman: Vallabhbhai Patel) and Minorities Sub-Committee (Chairman: H.C. Mookherjee). Before the Constitution 42nd amendment Bill added the word “secular” in the constitution of India, the word “secular” appeared only in “Article 25”. India is a secular country and there is no state religion. India also does not patronizes any religion. The Constitution 42nd amendment Act made the above thought “explicit” in the constitution.
Is being a Hindu means No secular?
Hindus are in majority in India but secularism means that in India, state shall observe neutrality & impartiality to all religions. Here, all religions are respected and all beliefs & methods of worship are accepted. All minority religions enjoy full freedom and in certain cases protected. This is opposite in some neighbouring countries such as Pakistan and Bangladesh which were part of India but later became Islamic countries. Secularism does not mean that state is hostile to a particular religion. If a person is a Hindu, he / she do not cease to be a secular. The Supreme Court in Pannalal Pitti v/s State of Andhra Pradesh mandated that while Article 25 and 26 grants religious freedom to minority religions such as Islam and Christianity, yet they do NOT intend to DENY the same guarantee to Hindus.
Article 25 mandates that subject to public order, morality and health, all persons enjoy the freedom of conscience and have the right to entertain any religious belief and propagate it.
Meaning of Public order, morality and health
This means that Article 25 & 26 are not absolute. No person can do such religious things which affect the public order, morality and health. For example no one has right to conduct human sacrifice. No one can perform worship on busy highway or other public places which disturb the community.
Is right to performing rituals protected?
Yes, it is protected. But the state by law may regulate the economic, financial, political, or other activity which may not be a direct part of religion. For example management of Temples can be controlled by the state.
Does Constitution allow 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.,(2000) 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”.
Article 26: gives every religious group a right to establish and maintain institutions for religious and charitable purposes, manage its affairs, properties as per the law. This guarantee is available to only Citizens of India and not to aliens.
Article 27: This Article mandates that no citizen would be compelled by the state to pay any taxes for promotion or maintenance of particular religion or religious institutions.
Article 28: This Article mandates that No religious instruction would be imparted in the state funded educational institutions.
Implications of Article 25 & 26 not being absolute
- Use of loudspeakers is not an integral part of the religions so the government can restrict on the use of loudspeakers for Ajan and Bhajan Kirtans.
- Followers of no religions have right to stop the processions of other religions on the ground that it is a nuisance.
- State may abolish “Cow Slaughter” as sacrifice of Cow on Bakrid is not an essential part of the religion.
- Possessing a Kirpan is an essential part of professing Sikkism and it is protected right of Sikhs. (Article 25 Explanation I)
- The Aligarh Muslim University was established under an act of parliament so Muslims can NOT claim to run this university as per provisions of Article 26 & Article 29.
- None of the rights guarantee that a Brahmin only can perform rituals of Hinduism.