Discuss the right to Freedom of Religion under the Constitution of India and explain the limitation of it.

Questions: Discuss the right to Freedom of Religion under the Constitution of India and explain the limitation of it. [MPJS 2017]

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Answer

The fundamental right to freedom of religion is guaranteed under Articles 25, 26, 27, and 28 of Part III of the Indian Constitution. It is religious freedom in the background of a secular state. The rights which constitute under the right to freedom of religion are:

• Article 25: Freedom of conscience and free profession, practice and propagation of religion

This article secures to every person freedom not only to subscribe to the religion of their choice but also to execute their belief in such outward acts as they think is proper. All persons are also free to propagate their ideas to others. Thus, under article 25 (1), a person has two-fold freedom:

• freedom of conscience freedom to profess;
• practice and propagate religion.

The right guaranteed under Article 25 (1), like other constitutional rights, is not absolute and is subject to public order, morality and health, and to the other provisions of Part III of the Constitution.

In Bijou Emmanuel v. State of Kerala [(1986)3SC615], three children belonging to Jehovah’s Witness were expelled from school for refusing to sing the national anthem. The circular issued by the Director of Instructions, Kerala had made it obligatory for students in schools to sing the national anthem.

The Supreme Court held that the children had not committed any offense. There was no law under which their Fundamental Right under Article 19(1)(a) could be curtailed. It could only be regulated by law and on the grounds mentioned in the Constitution or by executive instructions.

• Article 26: Freedom to manage religious affairs

This article guarantees to every religious denomination the following rights: to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire movable and immovable property, and to administer such property in accordance with the law.

In TMA Pai Foundation v. State of Karnataka [AIR 2003 SC 355], the Court held that the right to establish and maintain educational institutions has been conferred by Article 26(a) on every religious denomination or Section thereof, be it of majority religious community or of minority religious community.

• Article 27: Freedom as to payment of taxes for promotion of any particular religion

The object of Article 27 is to secure that the public funds raised by taxes shall not be utilized for the benefit of any particular religion or religious denomination.

In Sri Jagannath v. State of Orissa [AIR 1954 SC 400], the Court upheld the levy and observed that the annual contribution so imposed was in the nature of a fee and not a tax. The payment was demanded for the purpose of meeting the expenses of the Commissioner and his office which was the machinery set up for the due administration of the affairs of the religious institutions, concerned.

• Article 28: Freedom as to attendance at religious instructions or religious worship in certain educational institutions

This provision is confined to educational institutions, maintained, aided or recognized by the state.

Therefore, it is essential to note that though important, the right to the freedom of religion is not an absolute right and is subject to various restrictions.

The restrictions are:

• Public order, morality, or health
• Other provisions of Part III of the Constitution
• Regulation of non-religious activity associated with religious practice
• Social welfare
• Social reform
• Throwing open Hindu religious institutions of a public character to all classes and sections

Any activity, usage, or custom which contravenes the abovementioned restrictions is not considered a purely religious activity. In such circumstances, legislation for regulating it will be permissible. Like in the case of Sarla Mudgal v. Union of India (1995), the Supreme Court outlawed the practice of married men, whose personal law does not allow bigamy even though they have been resorting to the immoral practice of converting to Islam for the sake of contracting a second marriage under a belief that such conversion enables them to marry again without getting their first marriage dissolved.

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