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. Article 25 should be read along in the lines of article 26. While article 25 guarantees rights to an individual, article 26 provides rights to an organised body of the individuals, like that of an religious denomination or any section of them. Both these articles protect matters of religious doctrines or belief as well as acts done in pursuance of religion rituals, observances, ceremonies and mode of worship. These articles embody the principles of religious tolerance that has been one of the characteristic features of Indian civilisation from the start of its history, the instances and periods when the feature was absent were merely temporary aberrations. The founding fathers of the constitution wanted the secular nature of the Indian polity which these articles provide. The constitution does not define religion anywhere, but the supreme court Gave a comprehensive definition of religion in commr. Hindu religious endowments v Sri laksmindra thirtha swamiyar of sri srirur mutt in the following words. Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well know religions in India like Buddhism or Jainism which do not believe in God or in any intelligent first cause. A religion
undoubtedly has its own basis in a system of beliefs or
doctrines which are regarded by those who profess that religion as conclusive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rule for its followers to accept, it might prescribe rituals and observance, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observations might extend even to matters of food and dress. CLAUSE(1) Article 25(1) guarantees to every person, and not merely to the citizens of India, the freedom of conscience and the right to freely profess, practise and propagate religion. The right is subject in every case to public order, health and morality and other provisions of of part III. Further exceptions are engrafted upon this right by clause(2) of the article. Sub clause (a) of clause(2) saves the power of the state to make laws regulating, or restricting any economic, financial, political or secular activity which may be associated with religious practise and sub-clause(b) reserves the states power to make laws providing for social welfare and social reform even though they might interfere with religious practises. Freedom of conscience connotes a persons right to entertain beliefs and doctrines concerning matters, which are regarded buy him to be conductive to his spiritual well-being. A person has freedom to believe in religious tents of any sect or community. The right is not only to entertain such religious believes ass may be approved by his judgement or conscience but also to exhibit his sentiments in overt acts as are enjoined by his religion. In the words of the article he may profess, practise and propagate his religion. To profess a religion means the right to declare freely and openly ones faith. He may freely practise his religion. Religious practises or performances of acts in pursuance of religious belief are as much a part of
religion as faith or belief in particular doctrine. Rituals and
observances, ceremonies and modes of worship considered by a religion to be its integral and essential part are also secured. What constitutes an integral and essential part of a religion or a religious practise has to be decided by the courts with reference to the doctrine of a particular religion and include practises regarded by the community as part of its religion. Duties such as collection of offerings, assigned to the sevaks(servants), are not practise of religion. Therefore any arrangement in the temple, such as placing of hundis in various places of the temple for making offerings by the devotes, which deprives the sevaks of the duty to collect offerings, does not amount to infringement of their right to practise religion. Again, a person may propagate his religion freely his religious views for the edification of others. It is immaterial whether the propagation is made by a person in his individual capacity or on behalf of a church or institution. The right to religion includes the right to seek declaration that the church is Episcopal. In a judgement of far reaching importance in the national anthem case, the supreme court has held that no person can be compelled to sing the national anthem if he has genuine, conscientious religious objection. In the instant case, three children belonging to the jehova witness of the Christian community were expelled from the school for refusing to sing the national anthem. They challenged the validity of their expulsion on the ground that it was violative of their fundamental rights under article 25(1). A circular issued by the director of public instructions has made it up compulsory for all the children to sing the national anthem. They had stood up respectfully during the national anthem was played but they dint sing along. They refused to sing because it was against their religion to sing in praise of anything other than that of their god, jehova. The kerala high court held that it was their fundamental duty to sing the national anthem. It held that, they not singing the national anthem would bring bad influence amongst other pupils and it was right of the headmistress from
preventing them from attending any classes until they gave it
in writing that they will take part in the national anthem singing. On appeal, however, the supreme court reversed the high court decision and held that there is no legal obligation in India for a citizen to sing the national anthem. The right under article 25(1) cannot be regulated by executive instructions which had no force of law. It held that the rising of the children is enough and it does not disrespect the national anthem under article 51A. The court ordered the school to readmit the children and allow them to pursue their studies. The judgement of the supreme court was relied on the American supreme courts decision, though the difference between American and Indian society setup is different. The forces threatening the unity and integrity of the country are still operating in the country. In sp mittal vs union of India going by the denias of Sri Aurobindo that he was establishing a religion, the majority of the court took a restricted view of religion and held that the teaching of Sri Aurobindo constituted a philosoph and not religion even if his followers claim that to be their religion. Dissenting from approach chinnapa reddy held that the question is not whether Sri Aurobindo refused to claim or denied that he was founding a new religion or a new school of religious thought but whether his disciples and community thought so because religion is a matter of belief and doctrine, concerning the human spirit, expressed overtly in the form of ritual and worship and since Aurobindos disciples took his teachings in that spirit that it constituted a new religion. This wide definition of religion may not be very appropriate for determining the denominational rights under article 26 which Sri Aurobindo society was claiming in that case but certainly under individual rights under article 25(1) the definition represents the correct approach insofar as it leaves the choice to the individual to decide what he considers to be the matter of ultimate concern for himself and the society.
On honourable shri ranganath mishra v union of India a letter
was written by the petitioner to the chief justice of India requesting him to give necessary directions to the state to educate its citizens in the matter of fundamental duties so that a right balance may emerge between the rights and duties. The letter was treated as an writ petition. The petition raised a question as to the correctness of a decision of the high court in the bijoe emmanuel v state of kerala, which required reconsideration. By the time the matter was taken up for hearing and the national commission for the review of the constitution submitted its report to the government of India where it made strong suggestion to its early implementation. The commission recommended that the state and union governments should take proper steps to to sensitise the people and to create general awareness and consciousness of the citizens towards their fundamental duties. The court directed the government to take appropriate steps for implementation as expeditiously as possible. With these directions the writ petition was finally disposed of. In m ismail v union of India the court ruled thatthe right to practise, profess and propagate religion guaranteed under article 25 of the constitution does not necessarily include the right to acquire or own or possess property. Similarly this right does not extend to this right of worship at any and every place of worship so that any hinderance to worship at a particular place per se may infringe the religious freedom... While offer of prayer or worship is a religious practise, its offering, its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practise unless the place has a particular significance for that religion so as to form an essential and integral part thereof. Place of worship of any religion having particular significance for that religion, to make it an essential or integral part of that religion, stand on a different footing and have to be treated differently and more reverentially...
A mosque is not an essential part of the islam religion and a
namaz can be offered anywhere, even in open. Accordingly,its acquisition is not prohibited y the provisions in the constitution of India. NON-BRAHMINS CAN BE APPOINTED AS PUJARI IN TEMPLE In a judgement of far reaching consequence the supreme court has held that Brahmins do not have monopoly over performing pooja in a temple and said that a non Brahmin can be appointed as the poojari if he is well versed with the rituals. This ruling was given a bench comprising justice s. Rajendra babu and justice doraisami raju while upholding the appointment of a non-brahmin as pujari in kongoopilly neerikoda Siva temple, at alangad village in ernakulam,kerala. The court said that if traditionally or conventionally in any temple, all along a Brahmin alone was conducting pooja or performing the job of shantikaran, it might not be because a person other than the Brahmin was prohibited from doing so because he was not a Brahmin. It might be because others were not in a position and, as a matter of fact, were prohibited from learning rituals or mastering the vedic literature, rites or performance of rituals and wearing sacred thread by getting initiated into the order. So there is no justification in insisting a Brahmin alone can perform the rites and rituals in the temple as part of the rights and freedom guaranteed under art 25 of the constitution and further claim that any deviation would be tantamount to violation of any such guarantee under the constitution. In ismail farauqui v union of India, the supreme court by a majority has held that the state can in exercise of its sovereign power acquire places of worship like mosque, church, temple etc. Which is independent of article 300-a of the constitution if it is necessary for the maintenance of law and order. Such acquisition per se does not violate art 25 and 26 of the constitution. A practise may be a religious practise but not an essential part of the religious practise. While offer of prayers or
worship is an religious practise, its offering at every location
where such prayers can be offered would not be an essential religious practise. Status of mosque in secular India is same as that of an church or an temple. A mosque is not an essential part of islam and the namaz can be offered anywhere. Under the muslim law in India, title to an mosque can be lost by adverse possession. The matter in this case was referred to the supreme court for its advisory opinion by the president due to the demolition of babri masjid in Ayodhya, law and order in the country was disturbed. In order to defuse the crisis, the union government acquired the whole property surrounding the mosque. This was challenged by the petitioners on the ground that it was violative of art 25 and 26 as they were deprived of their right to worship in the mosque but Hindus were allowed to worship therein. The court held the act valid as it does not interfere with the essential element of religion. In moulana mufty syed Mohamed v state of west Bengal, the Calcutta high court held that the restrictions imposed by the state on the use of microphone and loudspeakers at the time of azan. The use of loudspeaker is not an essential part of azan. It is not only an pollution but it is also causes health hazards. NOISE POLLUTION IN THE NAME OF RELIGION NOT ALLOWEDIn a significant judgement in church of god in India v k.k.r.m.c welfare association the supreme court has held that in the exercise of the right to religious freedom under art 25 and 26 no person can allowed to create noise pollution or disturb the peace of others. The custom of religious prayer through the use of loudspeakers is not an essential element of any religion. In that the appellant is the chuch of god located in k.k.r nagar, madhavaram, Chennai. It has a prayer hall for the Pentecostal Christians and provided with musical instruments such as drums set, triple bango, guitar etc. The k.k.r majestic colony made a complaint to the Tamilnadu pollution control board stating therein that prayers in the church were recited by using loudspeakers, drums and other sound producing instruments
causing noise pollution and nuisance to the normal life of the
residents of the family. The madras high court directed the police to take action to stop the noise pollution. on behalf of the church it was contended that the petition was filed with a view to prevent a religious minority institution from pursuing any its religious activities and the court cannot prevent the church from practising its religious beliefs. It was also said that the noise pollution was due to plying of vehicles and not due to use of loudspeakers. The supreme court held that a persons religious