027_Freedom of Religion

28 Pages·2007·0.93 MB·English

FREEDOM OF RELIGION *
N. A. SUBRAMANIAN **
€t We declare it to be Our Royal will and pleasure that none be
in any wise favoured, none molested or disquieted by reason of
their religious faith or observance; but that all shall alike enjoy
the equal and impartial protection of the law, and we do strictly
charge and enjoin all those who may be in authority under us,
that they abstain from all interference with the religious belief or
worship of any of our subjects, on pain of our highest displeasure
* * * * *
" The State shall not deny to any person equality before the law
or the equal protection of the laws within the territory of India."
" The State shall not discriminate against any citizen on grounds
only of religion, race, caste, sex, place of birth or any of them." 3
" 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, practice and propa
gate religion,"4
Concept of freedom of religion
There is no subject which leads to more acrimonious
controversies and which stirs up sometimes unnecessary heat as the
subject of religion. Religious freedom is, at the same time
regarded as being vital in every democratic Constitution. The
freedom in civilized countries at the present day extends not merely to
the holding of particular beliefs but to the absence of belief in religion.
It is possible for courts to take extreme views as to what constitutes
freedom of religion,5 In the Advisory opinion of the Supreme Court
on the Kerala Education Bill Venkatarama Ayyar, J., said: " It is
* Research study conducted for the Indian Law Institute.
** Advocate, Madras High Court; part-time lecturer in Law, Madras Law
College.
1. Queen Victoria's Proclamation of 1858.
2. The Constitution of India, Article 14.
3; JW, Article 15(1).
4. Ibid, Article 25(1).
5. Alladi, Constitution and Fundamental Rights, p. 44.
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324 FREEDOM OF RELIGION
well-known that during the Middle Ages, the accepted notion was that
Sovereigns were entitled to impose their own religion on their subjects,
and those who did not conform to it could be dealt with as traitors. It
was this notion that was responsible during the 16th and 17th centuries
for numerous wars between nations and for civil wars in the Continent
of Europe, and it was only latterly that it came to be recognized that
freedom of religion is not incompatible with good citizenship and
loyalty to the State, and that all progressive societies must respect the
religious beliefs of their minorities. It is this concept that is embodied
in Articles 25, 26, 29 and 30 of the Constitution. Article 25 guarantees
to persons the right freely to profess, practise and propagate religion.
Article 26 recognises the right of religious denominations to establish
religious and charitable institutions. Article 29(1) protects the rights of
sections of citizens to have their own distinct language, script or culture.
Article 30(1) belongs to the same category as Articles 25, 26 and 29,
and confers on minorities, religious or linguistic, the right to establish
and maintain their own educational institutions without any interfer
ence or hindrance from the State ",6
In this paper the provisions of Articles 25 and 26 will be examined
in the light of decided cases. Since the former Article deals with the
rights of an individual in matters of religion and the latter with the
rights of religious groups, they are in a sense complementary to one
another. But looking at them from another angle and stating it broadly
it may be said that the rights of the individual must be subordinated
to the rights of the religious denomination of which he is a member.
Thus an individual may have a right of worship in a temple but the
institution is maintained not in his interests alone but in the interests
of general public who constitute the particular religious group. If
each individual worshipper were to claim the right to worship in the
temple in his own way, the institution would have to be closed down.
Moreover, while it may be noted that Article 25 confers ' freedom of
conscience and the right freely to profess, practise and propagate reli
gion ' on all persons and not merely on citizens, nothing turns on the
rights being conferred on individuals and not on religious groups or
institutions because, as pointed out by the Supreme Court in the Shirur
Mutt case7 institutions as such cannot practise or propagate religion :
it can be done only by individual persons, and whether these persons
propagate their personal views or the tenets for which the institution
stands is really immaterial. It is the propagation of belief that is pro-
6. In re Kerala Education Bill, A.I.R. 1958 S.C. 956 at 990.
7. Commissioner, Hindu Religious Endowments, Madras v. Laxmindra Thirtha Swamiar,
A.I.R. 1954 S.C. 282 at 289.
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N. A. SUBRAMANIAN 325
tected, no matter whether the propagation takes place in a church or
monastery or in a temple or parlour meeting.
India is a land of many religions and of numerous religious insti
tutions. The religious foundations known as Devasthanams (Temples)
are the most numerous and have the largest endowments in the shape
of lands, assignments of public revenue and jewellery. Next to the
temples, the most important religious foundations are the Maths
(Mutts) or monasteries presided over almost invariably by sanyasis
Moreover, since in the Hindu system there is no line of demarcation
between religion and charity both being integral parts of c Dharma \
there are countless charitable endowments for pious purposes. These
institutions have, in recent times, quite naturally been the subject
matter of legislation aimed at providing for their better administration,
and they have not been slow in reacting to such legislative control by
invoking the newly conferred fundamental rights in self protection.
The result has been a spate of cases focussing judicial attention on the
provisions of Art. 26 dealing with the rights of religious institutions;
and the attention that Art. 25 has so far received has only been inci
dental and the full impact of the provisions thereof has not yet been
gauged.
What is religion
It would be impossible to work out religious rights without some
definite concept of c Religion \ But at the same time, as Latham, C.J.,
pointed out in Adelaide Company v. Commonwealth* it would be difficult if
not impossible to devise a definition of religion which would satisfy the
adherents of all the many and various religions which exist in the
world. The United States Supreme Court said : " The term ' religion'
has reference to one's views of his relations to his Creator and to the
obligations they impose for reverence for His Being and character and
of obedience to His will M.9 Is religion then merely a matter of belief
and opinion ? Our Supreme Court was not prepared to accept such
over-simplification. In the first place, there are in India religions like
Buddhism and Jainism which do not believe in God and hence a
theistic approach would be unsatisfactory. Secondly, Art. 25 of the
Constitution specifically mentions ' religious practices ' and the right
c to practise religion ' which would require a much broader concept of
religion than that envisaged by the American Court. The High Court
8. (1943)67C.L.R. 116 at 123.
9. Davis v. Season, 133 U.S. 333 at p. 342.
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326 FREEDOM OF RELIGION
of Australia in construing Section 116 of the Commonwealth Constitu
tion 10 conceived of freedom of religion as protecting not only liberty
of opinion but acts done in pursuance of religious belief as part of reli
gion.11 Adopting this view which would obviously fit into the scheme
of the Indian Constitution, our Supreme Court said in the Shirur Mutt
case : " A religion undoubtedly has its basis in a system of beliefs or
doctrines which are regarded by those who profess that religion as con
ducive 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 rules for its followers to accept, it
might prescribe rituals and observances, ceremonies and modes of wor
ship which are regarded as integral parts of religion, and these forms
and observances might extend even to matters of food and dress s\12
Religious practices—The qualitative test
If, as held by the Supreme Court in the Shirur Mutt case, religion
includes also acts done in pursuance of religion, does it mean that every
human and mundane activity can claim protection under the guise of
religion ? Of course not and this was the basis of the Bombay view.12*
It would, however, appear that when first expounding the scope of
Art. 25 in the Shirur Mutt case the Supreme Court was not very mindful
of this difficulty, for Mukherjea, J., said :13 " We now come to Art. 25
10. ' The Commonwealth shall not make any law for prohibiting the free
exercise of any religion'.
11. Adelaide Co. v. The Commonwealth 67 C.L.R. 116.
12. A.I.R. 1954 S.C. 282 at 290—The Bombay view of religion: In cases decided
by the Bombay High Court prior to the above pronouncement of the
Supreme Court, Chagla, C J., accepted the American view of religion as
exemplified in Davis v. Season, (133 U.S. 334) {supra) and held: " A sharp
distinction must be drawn between religious faith and belief and religious
practices. What the State protects is religious faith and belief." The State
of Bombay v. Narasu Appa, (A.I.R. 1952 Bom. 84). In upholding the validity
of the Bombay Prevention of Excommunication Act, 1949, the High Court
said: e* Religion is a matter of a man's faith and belief. It is a matter
concerning a man's contact with his Creator. It has nothing whatever to
do with the manner in which a practice is accepted or adopted as forming
part of a particular religion or faith........ The right to excommunicate
is not part of religious faith and belief. At best it can only be a religious
practice." This view was followed by the Calcutta High Court in Masud
Alam v. Commr. of Police, (A.I.R. 1956 Cal. 9.), wherein the claim of a right
to use a loudspeaker in a Mosque for calling the faithful to prayer was
negatived.
12a. See note 12, supra.
13. A.I.R. 1954 S.C. 282 at 289.
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N. A. SUBRAMANIAN 327
which, as its language indicates, secures to every person, subject to public
order, health and morality, a freedom not only to entertain such religi
ous belief as may be approved of by his judgment and conscience, but
also to exhibit his belief in such outward acts as he thinks proper and to
propagate or disseminate his ideas for the edification of others "• But
in the Bombay Trusts case which came on appeal from the Bombay
High Court, the Supreme Court, evidently realising that the scope of
Art. 25 had been stated by it rather too broadly in the Shirur Mutt case,
formulated it differently thus: "Article 25 guarantees to every
person...freedom of conscience ... Thus ... every person has a funda
mental right under our Constitution not merely to entertain such reli
gious belief as may be approved of by his judgment or conscience but
to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned
by his religion" 14 Hence the Constitution protects not all such acts
which an individual may subjectively consider as religious but only
those acts which are either " enjoined or sanctioned by religion ", which
would mean such acts which are either obligatory or are allowed by one's
religion. Four years later, in the Cow Slaughter case 15 there came a
further refinement. It is not enough if the act was " sanctioned " by
religion ; it must be " enjoined'" by religion. And so, when the vali
dity of certain state laws imposing a total ban on the slaughter of cows
was impugned by certain Muslims on the ground of violation of their
religious right to make sacrifices of cows on Bakr-id day, the Court
pointed out that the sacrifice established by the Islamic scriptures was
" a goat for one person or a cow or camel for seven persons ", and the
very fact of an option ran counter to the notion of an obligatory duty.
The law thus evolved was finally formulated in the Gurudwara case 16
thus : " Freedom of religion is not confined to religious belief only,
but extends to essential religious practices as well.. .we here emphasise
the word "essential".
In considering the evolution of the scope of Article 25(1) by judi
cial interpretation it should be borne in mind that in the Shirur Mutt
case17 the Supreme Court was directly concerned with the interpretation
of the words " matter of religion " in Article 26(b) and the scope of
Article 25(1) was not directly in issue. Although, as pointed out above,
the scope of Article 25(1) had been stated somewhat broadly in the first
instance, the Court in interpreting the expression " matter of religion "
took care to limit it to " rituals and observances, ceremonies and modes
14. Ratilal v. State of Bombay, A.I.R. 1954 S.C. 388, 391. Emphasis added.
15. Quareshi v. State of Bihar, A.I.R. 1958 S.C. 731.
16. Sarupsingh v. State of Punjab, A.I.R. 1959 S.C. 860.
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328 FREEDOM OF RELIGION
of worship which are regarded as integral parts of religion" and what
constituted the essential part of a religion was primarily to be ascer
tained with reference to the doctrines of that religion itself.17 Since
the Court held that " matter of religion " in Article 26(b) meant the
same as "religious practices" in Article 25(2)(a), it was inevitable
that the qualitative test of essentiality should have ultimately found its
way into the Court's construction of Article 25(1) as well.
Propagation of religion
Article 25(1) is modelled on Article %44 of the Constitution of the
Irish Free State which provides : " Freedom of conscience and the free
profession and practice of religion are, subject to public order and
morality, guaranteed to every citizen." Article 25(1) however enume
rates the right to propagate religion which is not found in the Irish
Constitution. To staunch Hindus the inclusion of a right to propagate
religion was obnoxious and an attempt was made in the Constituent
Assembly to delete the word " propagate". But the attempt was
unsuccessful because certain interests were very zealous about it and it
had been agreed to be included in the Minority Report. Accord
ing to Sir Alladi it was probably unnecessary to have included
the expression " Propagate " in Article 25(1) in view of the fact that
freedom of expression is already guaranteed under Article 19 but the
expression was inserted by way of abundant caution.18 In America
the propagation of religion has been held to include the right of indi
viduals to dedicate property by way of trust to the purpose of sustain
ing and propagating definite religious doctrines wherefore it is the duty
of courts to see that the property so dedicated is not diverted from such
trust19. Our Supreme Court has reached the same conclusion although
not based on Article 25(1) for in Ratilal v. State of Bombay %Q the Court
said: " A religious sect or denomination has a guaranteed right to
manage its own affairs in matters of religion and this includes the right
to spend the trust property or its income for the religious purposes and
objects indicated by the founder of the trust or established by usage
obtaining in a particular institution. To divert the trust property or
funds for other purposes while the original objects can be still carried
out is an infringement of Article 26(b) ".
17. A.I.R. 1954 S.C. 282 at 290.
18. Alladi, Constitution and Fundamental Rights, p. 45.
19. Watson v. Jones, 20 L. Ed. 666.
20. A.I.R. 1954 S.C. 388, 394.
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N. A. SUBRAMANIAN 329
The police power
The rights conferred by article 25(1) are by no means absolute.
In the first place, they are subject to " public order, morality and
health"—what is called in American law the Police Power of the
State. The only case in which it was invoked is Tej Raj v.
State of Madhya Bharat. 21 The executive officers of the State Govern
ment, claiming and asserting a right of ownership on behalf of the
State on what was in reality a public Jain temple, had installed a Hindu
idol in that temple and had prohibited members of the Jain community
from entering and worshipping except on condition of Hindus being
allowed to worship the newly installed idol. The Madhya Pradesh
High Court held that under Article 25(1) the members of the Jain
community had the right to enter and worship in their temple according
to the principles of their own religion to which the presence of a Hindu
idol and its worship by Hindus within the temple precincts was repug
nant, and that the action of the State Government could not be
defended on the ground of public order, morality or health. The
Court added sardonically " a public temple cannot be made a museum
for an exhibition of deities and idols of all religions."
The rights given by Article 25(1) are also made subject to the other
provisions of Part III of the Constitution.22 In the Temple Entry
case23 the Supreme Court mentioned article 25(2) 24 as one such provi
sion ; but since Article 25(2) itself contains the words " Nothing in
this article ...." the Court might well have left that clause proprio
vigore to have overriding effect over clause (1) of Article 25 instead of
invoking the general qualifying phrase in clause (1). That is how
clauses (2) to (6) of article 19 have been construed.
Secular activities
Clause (2) of Article 25 contains further limitations on the
rights conferred by clause (1). Sub-clause (a) reserves the right of
the State to " regulate or restrict any economic, financial, political
21. A.I.R. 1958 M.P. 115.
22. Examples of such other provisions would be Articles 15(2)(b), 17, 19(1) (e)
and(g), 23(2), 26, 28(1) and (3).
23. A.I.R. 1958 S.C. 255.
24. Article 25(2) : Nothing in this article shall affect the operation of any exist
ing 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.
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330 FREEDOM OF RELIGION
or other secular activity which may be associated with religious
practices." As interpreted by the Supreme Court this means that
religious practices as such cannot be regulated or restricted by the State
but only secular activities which may be associated with religious
practices. In the Shirur Mutt case an attempt was made to enlarge the
field of permissive State interference by the argument that all activities
which involve the expenditure of funds or the employment of human
agency are ipso facto secular activities within the scope of Article 25(2)(a),
The Court had no hesitation in rejecting the contention. "If the
tenets of any religious sect of the Hindus prescribe that offerings of
food should be given to the idol at particular hours of the day, that
periodical ceremonies should be performed in a certain way at certain
period of the year or that there should be daily recital of sacred texts
or oblations to the sacred fire, all these would be regarded as parts of
religion all of them are religious practices." In other words,
whether a particular activity is a religious practice within the scope of
the fundamental rights is to be decided with reference to the tenets
of that religion by applying the qualitative test of essentiality, and if
it is in fact a religious practice, it cannot become a secular activity
merely because it involves expenditure of money or the use of market
able commodities. Contrawise, if a particular activity is not a religious
practice it cannot come within the protective ambit of Article 25(1) by
reason of its being associated with religious practices.
It may be noted that the sub-clause uses both the expression " regu
late" and "restrict". The former expression is a familiar one in Ameri
can constitutional law while the latter has been generally used in the
Indian Constitution.25 Whether here the power to restrict would include
the power to prohibit has not yet been decided by the Supreme Court. 36
In construing the scope of "restriction' a distinction may have to be
drawn between ' regulation' and ' restriction5 having regard to the use
of both the expressions in juxtaposition in Article 25(2)(a). It is seen
from the Constituent Assembly Debates that the insertion of the word
•prohibit' in Article 25(2)(a) was moved but was negatived.27
There has so far been no occasion to invoke the State's power
under this sub-clause nor does it seem likely that the need will arise in
the future. The reasons are two-fold. In the first place, as will be
25. Vide " reasonable restrictions " in Article 19.
26. In the Cow Slaughter case (A.I.R. 1958 S.C, 731) The question was left
open. Cf. Narendra Kumar v. Union of India, A.I.R. 1960 S.C. 430, where
the Court held that the word 'restriction' in Article 19 would include
prohibition A.I.R. 1958 S.C. 731.
27. Constituent Assembly Debates, Vol. VII, Part 20 at p. 826-'27,
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N. A SUBRAMANIAN 331
shown hereinafter, the " social welfare and reform" clause in
Article 25(2)(b) as construed by the courts is wide enough to justify
most kinds of legislative interference with religious practices.
Secondly, it is now settled that the protection of Article 25(1) extends
only to " religious practices " as such and all other activities are out
side the realm of fundamental rights. It was, however, Article 25(2)(a)
more than anything else that weighed with the Supreme Court in
formulating a working definition of religion which would take in only
essential religious practices. It may therefore be fairly inferred that
Article 25(2)(a) has discharged its function by enabling the judiciary to
arrive at a proper perspective of the scope of Article 25(1) and that it
will be allowed to rest there.
The social welfare and reform clause
The provisions of sub-clause (b) of Article 25(2) which may
be studied in two parts are extremely enigmatic.
The first part of the sub-clause reserves the right of the State to
provide for " social welfare and reform ". What is the legal connota
tion of the expressions "social welfare" and "social reform"? It
would appear that in the context of religious freedom the adjective
" social " must be construed in antithesis to " religious ". In this view,
"social " will be a word of limitation of State power : it would mean
power to promote or reform social relations as distinguished from
religious practices, and the State will have no power to interfere with
religious practices as such. But that is not the sense in which the Supreme
Court has construed the provision. In the Shirur Mutt case 28 the Court
said : " [T]here is a further right given to the State by sub-clause (b)
under which the State can legislate for social welfare and reform even
though by so doing it might interfere with religious practices" If, then, a law
purporting to be made as a measure of social reform or welfare abro
gates essential religious practices, will the courts go behind the declara
tion of the Legislature and consider the true nature of the legislation,
viz., whether or not it is a measure of social reform ? That the Judiciary
will not undertake this task has been made clear by the Bombay and
the Allahabad High Courts. In State of Bombay v. Narasu Appa^ the
Bombay High Court said : "It is for the Legislature to determine what
laws to make in order to advance the welfare of the State. The Court
cannot sit in judgment on that decision." The Allahabad High Court
went a step further in Ram Prasad v. State of U. P.,30 : " If the Legis
lature as the law-making authority regards a particular measure as a
28. A.I.R. 1954 S.C. 282, 290. Emphasis added.
29. A.I.R. 1952 Bom. 84.
30. A.I.R. 1954 All. 411 at 414.
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332 FREEDOM OF RELIGION
measure of social reform, the Courts should not say that it should not
be regarded as a measure of social reform." From the two propositions,
namely, (i) religious practices can be abrogated by a law enacted as a
measure of social reform and (ii) the Legislature is the sole judge of
what is social reform, the inevitable conclusion is that religious practices
are subject to regulation by law. In other words, the right to practice
religion conferred as a fundamental right by Article 25(1) and so pains
takingly elaborated by the Supreme Court becomes precarious. The
position can be retrieved only if adequate stress is laid by the courts
on the social quality of any legislative reform. It is to be hoped that
" essential religious practices " will be rescued from the tentacles of
social reform and that the Supreme Court will consider afresh the
scope of Article 25(2)(b). Its dictum in the Shirur Mutt case cited above
may fairly be regarded as obiter.
The second part of Article 25 (2) (b) has caused much difficulty
and even confusion. It saves the power of the State to make laws
providing for "the throwing open of Hindu religious institutions
of a public character to all classes and sections of Hindus ". Language
of such wide amplitude has been employed as would make one
wonder if all that is included was really intended. The provision may
be analysed thus: (1) Hindu religious institutions of a public character
(2) may be thrown open (3) to all classes and sections of Hindus
(4) notwithstanding Article 25(1). As to the meaning of "Hindu
religious institutions of a public character: first, by Explanation II
to Art. 25 the expression " Hindu " includes a Sikh, Jain and Buddhist.
Hence Hindu, Sikh, Jain and Buddhist religious institutions come
within the scope of the provision. Secondly, " religious institutions "
will include not merely temples or vihars but mutts, monasteries,
patasalas and the like. Thirdly, does the expression "Religious
institutions of a public character " mean only such institutions as are
dedicated to the use of the members belonging to a particular religion
as a whole, or does it also include what are purely denominational
institutions such for example as a temple endowed for the benefit of
the members of a particular sect or sub-sect as distinguished from the
entire religious group as a whole ? The point arose in an acute form
in the Madras Temple Entry case.31 The Supreme Court felt compelled by
the language of the provision to construe it in the broader, sense as
including within its scope even purely denominational institutions.
It will be seen from the above that on the language used it is
possible to construe the provision so widely as to empower the State
31. Venkataramana Devaru v. State of Mysore, A.I.R. 1958 S.C. 255
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