India, as a secular nation, guarantees the right to religious freedom under its Constitution while ensuring that such freedoms do not disturb public order or promote discrimination. However, balancing these freedoms with the principles of secularism continues to pose challenges in practice.
NEW DELHI : Religion often becomes a source of tension and division, creating societal rifts. However, embracing pluralism and fostering diversity can ease these conflicts and promote peace and harmony. While discussions on multiculturalism have recently gained traction in the Western world, India has a long history of managing diverse cultures and faiths. This rich tradition should be preserved and made relevant even today.
The Indian judiciary has repeatedly upheld this principle of unity, emphasizing that the Constitution guarantees individuals the freedom to explore and express their beliefs.
The blog examines the the concept of religion and secularism and its imbalance within the Indian context—both of which form the foundation of religious freedom in the country. It explores the implications of Articles 25, 26, 27, and 28 of the Constitution, along with their judicial interpretations. Additionally, it addresses the ambiguities surrounding the Essential Practices Test, which plays a crucial role in resolving religious disputes.
Indian Secularism
The Western concept of secularism was imposed on India by colonial rulers, but after gaining independence, India rejected this rigid model and developed its own version—one that suited its unique social, cultural, and political landscape. However, this “Indian secularism” remains open to various interpretations.
India has always been a land that welcomed all religions, providing a safe space for people of different faiths to coexist peacefully. Over time, these religions influenced each other and even shaped the country’s governance.
This was only natural—when a society is constantly surrounded by deep philosophical ideas, it is difficult to remain indifferent to them. As a result, India evolved into a theistic state rather than a purely secular or atheistic one.
During the drafting of the Constitution, members of the Constituent Assembly debated whether to begin the document with the phrase “In the name of God.” While some supported the idea, others opposed it, arguing that the State should remain separate from religion.
Eventually, the proposal was rejected, but there was still no consensus on how to define secularism in India. The Assembly agreed that India must be secular for democracy to thrive, but the challenge lay in determining the nature of this secularism.
It was only through the 42nd Constitutional Amendment that the word “secular” was formally added to the Preamble. However, India’s secularism differs from the American model, which enforces a strict separation between the State and religion. Instead, India follows a more inclusive and balanced approach—where the State remains neutral and respects all religions without favoring or rejecting any.
As American political scientist Donald E. Smith describes it, Indian secularism does not mean the complete exclusion of religion from public life. Instead, it ensures that the government functions in a way that is non-communal and non-sectarian, meaning that it does not discriminate based on religion. While India is not an officially theocratic state, it is also not an atheist state. The country manages multiculturalism through flexibility and mutual accommodation rather than strict separation.
Secularism in India ensures equal status and treatment for all religions without any bias. The concept dates back to 1948 when K.T. Shah proposed including the word “secular” in the Constitution. Although the framers upheld secularism, the term was not included in the Preamble until the 42nd Amendment Act of 1976.
As a secular state, India does not endorse any state religion, ensuring equal protection for all faiths. Secularism is crucial for democracy, preventing religious conflicts and allowing individuals to freely practice their beliefs. The core idea is that religious freedom must be accompanied by protection, ensuring equal treatment for all places of worship.
Landmark Cases on Secularism
- Santosh Kumar & Ors. vs. Secy. Ministry of Human Resource Development (1995)
The Supreme Court ruled that introducing Sanskrit as a subject in the CBSE curriculum does not violate secularism, as it is the root of Aryan languages. - Indian Young Lawyers Association & Ors. vs. The State of Kerala & Ors. (2018)
The Supreme Court, in a 4:1 verdict, declared the prohibition of menstruating women from entering the Sabarimala Temple unconstitutional, striking down Rule 3(b) of the Kerala Hindu Places of Public Worship Act, 1965. - Acharya Jagdishwaranand Avadhuta vs. Commissioner of Police, Calcutta & Anr. (1983)
The Calcutta High Court upheld restrictions on religious processions carrying weapons, emphasizing that religious practices must not disrupt public order. - Ahmedabad St. Xavier’s College vs. State of Gujarat & Anr. (1974)
The Supreme Court ruled that minority institutions have the right to establish and administer educational institutions, but reasonable restrictions can be imposed in the public interest. - Church of God (Full Gospel) in India vs. K.K.R. Majestic Colony Welfare & Ors. (2000)
The court held that religious practices should not cause public nuisance, ruling that excessive noise from a church’s musical instruments violated residents’ rights to a peaceful environment.
ALSO READ: Congress Opposes Challenges to Places of Worship Act in Supreme Court
Constitutional Framework of Freedom of Religion
The right to freedom of religion is a fundamental right enshrined in Articles 25 to 28 of the Indian Constitution, ensuring religious liberty for both citizens and non-citizens residing in India. These provisions protect religious practices from state interference while maintaining religious harmony and equality. However, legal interpretations often raise concerns, making the role of the judiciary crucial in balancing religious rights with constitutional principles.
Understanding Articles 25 to 28 of the Indian Constitution
India upholds secularism by ensuring that no religion is given preferential treatment. The Constitution prohibits religious discrimination, and any violation allows individuals to seek legal remedies. Below are the key provisions safeguarding religious freedom:
- Article 25: Freedom of Religion for Individuals
- Every person has the right to freely practice, profess, and propagate their religion.
- However, this freedom is not absolute—it is subject to public order, morality, and health.
- The State can regulate religious activities that are secular in nature, such as social welfare or economic matters (e.g., temple administration).
- Article 26: Freedom to Manage Religious Affairs
- Religious groups and institutions have the right to establish and manage their own affairs, such as running temples, mosques, churches, or gurudwaras.
- They can also own property and administer it, but their activities must comply with public order, morality, and health regulations.
- Article 27: Freedom from Compulsory Religious Taxes
- No person can be forced to pay taxes for promoting or maintaining any religion.
- This ensures that government funds are not used to support any particular faith.
- Article 28: Freedom in Educational Institutions
- Religious instruction cannot be imparted in government-funded schools or institutions.
- However, religious institutions that are privately funded can provide religious teachings.
Article 25 of the Indian Constitution: Freedom of Religion
Article 25 of the Indian Constitution guarantees every individual the freedom of conscience and the right to profess, practice, and propagate their religion. However, this right is not absolute and is subject to public order, morality, and health.
Additionally, Article 25 does not override existing laws or restrict the state from enacting legislation related to:
- Regulating secular activities associated with religious practices.
- Administering social welfare and religious reforms.
- Ensuring that Hindu religious institutions of public character remain accessible to all Hindus, regardless of caste or sect.
Understanding the scope of conscience, profession, practice, and propagation of religion is crucial to interpreting religious freedom under the Constitution.
Important Supreme Court Cases on Article 25
- Ramesh, S/o Chotalal Dalal v. Union of India (1988)
A petition was filed to prohibit the telecast of the TV serial Tamas, alleging it incited communal violence. The Supreme Court ruled that the serial did not violate Articles 21 and 25, as it depicted historical events and promoted peace. - Bhuri Nath & Ors. v. State of Jammu & Kashmir (1997)
The court upheld the Jammu and Kashmir Mata Vaishno Devi Shrine Act, 1988, ruling that the right to perform pooja is a customary right that can be regulated by legislation in the interest of shrine management. - Gulam Kadar Ahmadbhai Menon v. Surat Municipal Corporation (1998)
The Gujarat High Court ruled that demolishing a mosque for road expansion did not violate religious freedom, as it served a public purpose and did not interfere with religious sentiments. - N. Adithayan v. Travancore Devaswom Board (2002)
The Supreme Court rejected a petition challenging the appointment of a non-Brahmin priest, ruling that any qualified and trained individual could perform temple rituals, irrespective of caste. - Gulam Abbas v. State of Uttar Pradesh (1981)
A dispute between Shia and Sunni sects over religious rites led to social unrest. The Supreme Court upheld the shifting of graves to maintain public order, stating that religious rights are subject to larger societal interests. - M. Siddiq (D) Thr Lrs v. Mahant Suresh Das (2020)
The Ayodhya dispute involved claims over a 1500 sq. meter land where a temple was allegedly destroyed by Mughal emperor Babur. The Supreme Court awarded the land for Ram Mandir construction, while an alternative plot was given to the Sunni Central Waqf Board for a mosque.
Essential Religious Practices Test in Indian Judiciary
Religious traditions often include various practices, leading to the question of whether a particular practice is essential to that faith. To determine this, the Essential Religious Practices (ERP) Test was established.
The test, developed in The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954), allows the judiciary to decide which religious practices deserve constitutional protection. The Supreme Court ruled that only those practices integral to a religion will be protected, preventing unnecessary interference while ensuring constitutional compliance.
However, this test has been both useful and controversial, as it enables conflicting arguments to be made regarding what constitutes an essential practice.
Key Cases on the Essential Religious Practices Test
- Sabarimala Temple Case – Religious Freedom vs. Gender Equality
The Supreme Court ruled that women of all ages could enter the Sabarimala temple, overturning the tradition that barred menstruating women. The majority held that the custom was discriminatory, while Justice Indu Malhotra’s dissent argued that the temple’s devotees formed a distinct religious denomination with their own protected customs. This case raised significant debate on the balance between religious autonomy and gender equality..
- Shayara Bano v. Union of India (2017) – Triple Talaq Unconstitutional
The Supreme Court declared triple talaq (instant divorce in Islam) unconstitutional, ruling that it was not an essential practice of Islam. This judgment emphasized that religious customs violating fundamental rights cannot be protected under religious freedom.
- In Re Anand Marga Case – Prohibition of Tandava Dance
The Anand Marga sect’s Tandava dance, performed publicly with weapons and skulls, was banned by the government. The court upheld the restriction, ruling that the practice was not essential to the sect and that the ban was necessary to maintain public order and morality.
Article 26 of the Indian Constitution: Rights of Religious Denominations
Apart from ensuring religious freedom for individuals, Article 26 extends similar rights to religious denominations. It grants them the right to:
- Establish and maintain institutions for religious or charitable purposes.
- Manage their own religious affairs.
- Acquire both movable and immovable property.
- Administer their property in accordance with the law.
However, these rights are not absolute and are subject to public order, health, and morality. To understand its scope, let’s examine some key judicial interpretations of Article 26.
Judicial Interpretations of Article 26
- Bramchari Sidheswar Bhai & Ors. v. State of West Bengal (1995)
The Ramakrishna Mission sought recognition as a non-Hindu minority while retaining Hindu status for certain purposes like inheritance and marriage. The Supreme Court rejected this claim, ruling that the mission is part of Hinduism and cannot claim minority status to establish and administer educational institutions. - S. Azeez Basha & Anr. v. Union of India (1967)
The Muslim community challenged amendments to the Aligarh Muslim University Act, 1920, arguing that they violated religious rights under Articles 25, 26, and 29. The Supreme Court held that since the university was established by central legislation, the Muslim community could not claim exclusive rights over it. - Sardar Syedna Taher Saifuddin Saheb v. State of Bombay (1962)
The Supreme Court ruled that laws for social welfare and reform under Article 25(2) cannot alter or dissolve a religion’s identity or existence. The Act in question was deemed violative of religious freedom, as guaranteed by the Constitution. - State of Rajasthan & Ors. v. Sajjanlal Panjawat & Ors. (1973)
The court ruled that while the state can regulate and administer religious trust property, it cannot transfer administration to a non-denominational authority. Doing so would violate Article 26(d), which ensures the right of religious denominations to manage their own property.
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Article 27: Prohibition of Religious Taxes
Article 27 of the Indian Constitution ensures that no person shall be compelled to pay taxes for promoting or maintaining any religion or religious denomination.
However, the judiciary has clarified the difference between taxes and fees:
- Taxes are collected for general administration and do not provide any direct service in return.
- Fees are charged for specific services, such as temple management or religious pilgrimages, and involve an element of quid pro quo (a direct benefit to the payer).
The courts have emphasized that fees collected for religious purposes must be kept separate from general government revenues to maintain secular integrity.
Judicial Interpretations of Articles 27
- Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt (1954)
The petitioner challenged the Madras Hindu Religious and Charitable Endowment Act, 1951, arguing that contributions levied under Section 76 were taxes and violated Article 27. The Supreme Court ruled that although the levy was a tax, its purpose was administration of religious institutions, and hence, Article 27 was not violated. - T.M.A. Pai Foundation v. State of Karnataka (2002)
The Supreme Court clarified that Article 27 does not prohibit the state from enacting laws that allocate funds for religious promotion or maintenance. - Mahant Sri Jagannath Ramanuj Das v. State of Orissa (1954)
The challenge was against Section 49 of the Orissa Hindu Religious Endowment Act, 1951, which imposed a financial contribution on temples earning over Rs. 250 annually. The court ruled that the levy was a fee, not a tax, as it was meant for specific services related to temple administration. Hence, Article 27 was not violated.
Article 28: Religious Instruction in Educational Institutions
Article 28 governs the role of religious education in schools and universities:
- Article 28(1) – Schools wholly funded by the state cannot provide religious instruction.
- Article 28(2) – Religious education is permitted in institutions established under private endowments or trusts, even if they receive state administration.
- Article 28(3) – In institutions receiving government funding, students cannot be forced to participate in religious activities without consent.
Important Cases on Article 28
- Aruna Roy v. Union of India (2002)
A PIL challenged the National Curriculum Framework for School Education (NCFSE), arguing that religious teachings violated Article 28 and the principle of secularism. The court ruled that general moral and ethical education does not violate Article 28, unless it promotes a particular religion.
- D.A.V. College Bathinda v. State of Punjab (1971)
The Guru Nanak University Act, 1969 mandated the study of Guru Nanak’s teachings in a university funded by the state. The petitioner argued that this violated Article 28. The Supreme Court held that the provision only aimed to impart valuable lessons from Guru Nanak’s life and did not breach Article 28.
India is a secular nation, ensuring that no particular religion is given preference by the state. The Constitution upholds this principle by granting individuals the right to profess, practice, and propagate their faith under Articles 25 to 28. However, this religious freedom is not absolute and is subject to reasonable restrictions to maintain public order, morality, and social harmony.
While these constitutional provisions aim to protect both religious diversity and secular governance, the practical implementation often presents challenges. Instances of religious intolerance, conflicts over religious practices, and legal disputes on the extent of these rights indicate a possible imbalance between freedom of religion and the secular ideals of the state. In some cases, state intervention in religious affairs is questioned, while in others, inadequate enforcement of these rights leads to discrimination or exclusion.
To address these concerns, greater awareness, education, and consistent legal enforcement are necessary. A balanced approach—where religious freedoms are protected while ensuring they do not disrupt social harmony—is crucial for fostering an inclusive and equitable society where secularism and religious rights coexist without conflict.
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