A PROJECT ON

“FREEDOM OF RELIGION

UNDER CONSTITUTION OF INDIA”

Submitted to:

Mr. Azim B Pathan

(Faculty Of Legal Method)

Submitted by:

Neeraj Ekka

Roll No. 78

Semester – I

Sociology Major

Submitted on: 24-11-2014

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR

Contents

ACKNOWLEDGEMENT.......................................................................................................................- 2 -

RESEARCH METHODOLOGY...............................................................................................................- 3 -

List Of Acronyms:..............................................................................................................................- 4 -

Scope Of Study:.................................................................................................................................- 5 -

Objectives of Study:...........................................................................................................................- 5 -

INTRODUCTION.................................................................................................................................- 6 -

CONSTITUTIONAL ASSEMBLY DEBATES: Views of the founding fathers of the Constitution.............- 9 -

ARTICLE 25: Freedom of conscience and free profession, practice and propagation of religion.....- 10 -

ARTICLE 26: Freedom to manage religious affairs...........................................................................- 13 -

ARTICLE 27: Freedom as to payment of taxes for the promotion of any particular religion...........- 16 -

ARTICLE 28: Freedom as to attendance at religious instruction or religious worship in certain educational institution....................................................................................................................- 17 -

CONCLUSION...................................................................................................................................- 19 -

ACKNOWLEDGEMENT

I would like to express my heartfelt gratitude to my teacher, Dr. Azim Pathan for his unstinted support. The topic given to me for my project is one that is very close to my heart and I hope I have done justice to it. Thank you, jurists, masters of law and various governmental departments for the expression of your ideas, thoughts and immense amount of knowledge in the form of the various books, articles and opinions. Without all of this, it would have been impossible for me to complete my project. My gratitude also goes out to the staff and administration of HNLU for the infrastructure in the form of our library and IT Lab which was a source of great help for the completion of this project.

Neeraj Ekka

RESEARCH METHODOLOGY

The research is doctrinal in nature. It is collected from secondary sources such as books, journals, websites. The topic has been extensively researched upon so as to accomplish the goal of completion of the current project report

List Of Acronyms:

A.I.R. – All India Reporter

S.C.C. - Supreme Court Cases

S.C.R. – Supreme Court Reporter

C.L.R. – Commonwealth Law Reports

S.C. – Supreme Court

List Of Abbreviations:

Subs. – Substituted

Scope Of Study:

The scope of my study includes the Constitutional Assembly Debates and the views of our constitution makers in the matters of religion and drawing inferences from them. There is a discussion on how the religion and secularism has been defined and how they have been interpreted by the judiciary. The articles which define freedom of religion under Constitution of India, i.e., Articles 25,26,27 and 28 have been discussed in respect to their bare provisions and various interpretations by the judiciary in various cases.

Objectives of Study:

The basic objective of my study would be to discuss various judgments so that they promote a better understanding of the topic. The bare provisions of the articles would be seen through the eyes of the judiciary.

INTRODUCTION

“The state does not impose religion but rather gives space to religions with a responsibility toward civil society, and therefore it allows these religions to be factors in building up society.”

Joseph Ratzinger1

The Oxford Dictionary2 defines ‘religion’ as the belief in superhuman controlling power, esp. a personal God or gods entitled to obedience and particular system of faith and worship. The concept of religion being a wide concept, to each person the meaning of religion is different. While there are scholars like Clifford Geertz, who simply called it a "cultural system" there are others like Talal Asad who categorized religion as "an anthropological category." The word religion is sometimes used interchangeably with faith or belief system, but religion differs from private belief in that it has a public aspect. While the concept of religion and various religions spread across the world through various means of social and cultural diffusion, the concept of allowing a person follow his own religion. In Sanskrit literature the religion is called ‘dharma’ or the duties which a man must perform in his life. Thus emphasis is laid on performing certain duties which are obligatory and living a life in accordance with established principles of law. In Arabic there is ‘mazhab’ (مذاهب) or the schools of religious thoughts established by Prophet Mohammad and his various contemporaries. In fact the very concept of religion lies in helping a human being lead a virtuous life instead of living an animal existence. This is where the difference lies between and human and an animal. The concept of religion includes letting a person follow his or her religion without any compulsion or constraint. This concept is more popularly known as the ‘Freedom of Religion’. The basic idea can be derived from the teachings of the religions itself. As “no religion preaches violence or hatred among fellow beings. All religions are meant or rather expected to nourish mutual love and brotherhood among human beings. No one can be permitted to unleash violence in the name of religion.3,4”   

Freedom of Religion is an integral part of the Fundamental Rights granted to us by the Constitution makers. These rights have been granted under the Articles 25, 26, 27 and 28 of the Indian Constitution. The basic idea behind the provision of these rights were the establishment of a secular state which was later recognized by the 42nd Amendment to the Indian Constitution which inserted the word ‘secular’ to the preamble of the Constitution. The preamble now aims at making India a SOVEREIGN SOCIALIST SECULAR

1 More popularly known as Pope Benedict XIV. 2 Reprint Edition 2006 published by Oxford university Press Inc., New York3 This judgment was given in the famous Marad Massacre case by the additional sessions Judge Babu Mathew P Joseph  being citing Lokeman Shah and Others vs. State of West Bengal reported (2001)5SCC235.4 As reported by the Hindu on 22 Jan,2011. The website was accessed on October 5,2011. The mentioned newspaper report can be viewed at http://www.hindu.com/2011/01/22/stories/2011012253160300.htm

DEMOCRATIC REPUBLIC5. There is no provision for an established religion of the country. Hence, Indian state observes an attitude of impartiality and neutrality towards all religions. The Freedom of Religion is often treated as a universal human right and has been declared so under the Article 18 of the Universal declaration of Human rights6. It reads as follows:

“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance”

Now the question which arises in the mind of thinkers is that what can be defined as a religion. Referring to Justice Mukherjee’s observation in the case of The Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt7 “The word "religion" has not been defined in the Constitution and it is a term which is hardly susceptible of any rigid definition. In an American case (Vide Davis v. Benson8), it has been said "that the term 'religion' has reference to one's views of his relation to his Creator and to the obligations they impose of reverence for His Being and character and of obedience to His will. It is often confounded with cults of form or worship of a particular sect, but is distinguishable from the latter." We do not think that the above definition can be regarded as either precise or adequate. Articles 25 and 26 of our Constitution are based for the most part upon article 44(2) of the Constitution of Eire and we have great doubt whether a definition of "religion" as given above could have been in the minds of our Constitution-makers when they framed the Constitution. Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine of 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 worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress.”

The court in the case of ‘A.S. Narayana Deeksitulu v. State of A.P9.’ held “The word 'religion' used in Articles 25 and 26 of the Constitution is personal to the person having faith and belief in the religion. The religion is that which binds a man with his Cosmos, his Creator or super force. Essentially, religion is a matter of personal faith and belief or personal

5 Subs. by the Constitution (Forty-second Amendment) Act, 1976, sec.2, for “SOVEREIGN DEMOCRATIC REPUBLIC” (w.e.f. 3-1-1977)6 India was one of the members of the Drafting Committees and is a signatory to the Universal Declaration of Human Rights.7 AIR1954SC282:20(1954)CLT250(SC):[1954]1SCR1005

8  133 U.S. 333 at 342.9 AIR1997SC1711:(1997)2SCC745:[1997]1SCR138

relations of an individual with what he regards as Cosmos, his Maker or his Creator which, he believes, regulates the existence of insentient beings and the forces of the universe. Religion is not necessarily theistic. A religion undoubtedly has its basis in a system of beliefs and doctrine which are regarded by those who profess religion to be conducive to their spiritual well-being. Right to religion guaranteed under Article 25 or 26 is not an absolute or unfettered right but is subject to legislation by the State limiting or regulating any activity -- economic, financial, political or secular which are associated with the religious belief, faith, practice or custom. They are subject to reform as social welfare by appropriate legislation by the State.”

Secularism, which is one of the pillars on which the constitution of India can be defined as “the principle of separation between government institutions and the persons mandated to represent the State from religious institutions and religious dignitaries10.”

In one of the most famous case in the history of Indian judiciary,S.R Bommai v. Union Of India11, the concept of secularism was discussed at length by the judges. The court observed:

“Notwithstanding the fact that the words 'Socialist' and 'Secular' were added in the Preamble of the Constitution in 1976 by the 42nd Amendment, the concept of Secularism was very much embedded in our constitutional philosophy. The term 'Secular' has advisedly not been defined presumably because it is a very elastic term not capable of a precise definition and perhaps best left undefined. By this amendment what was implicit was made explicit.”

Justice Chinnappa Reddy12, delivering his Ambedkar Memorial Lecture on 'Indian Constitution and Secularism' has observed that: "Indian constitutional secularism is not supportive of religion at all but has adopted what may be termed as permissive attitude towards religion out of respect for individual conscience and dignity. There, even while recognizing the right to profess and practice religion, etc., it has excluded all secular activities from the purview of religion and also of practices which are repugnant to public order, morality and health and are abhorrent to human rights and dignity, as embodied in the other fundamental rights guaranteed by the Constitution."

CONSTITUTIONAL ASSEMBLY DEBATES: Views of the founding fathers of the Constitution13

The articles relating to freedom of religion i.e. Article No. 25,26,27 and 28 were the Articles numbered from 19 to 22 respectively in the draft of the original constitution. On going through the documents related to the Constitutional Assembly debates and discussions, we

10 http://en.wikipedia.org/wiki/Secularism11 (1994) 3 S.C.C. 112 Retired Judge, Supreme court of India13 These debates were accessed via Manupatra. These can be viewed at Manupatra under the Committee reports section

can observe some important discussions and explanations which help us in understanding the viewpoints of the Constitutional Makers and what in actual they wanted the Constitution to be like. In short, these debates and discussions help us in understanding the nature and the heart and soul of the Indian Constitution:

Mr. Tajamul Hussain, a member of the constituent assembly objected the provision of propagation of one’s religion and the visibility of marks of any kind which depict the religion of an individual. These marks included the surnames of people which depicted their religion and the caste to which they belonged. He cited the example of a Mukherjee surname meaning Bengali Brahmin, Ojha/Jha a Brahmin, Pershad a Kayasth. He also called for uniformity of dressing to avoid recognition of a person belonging to a particular religion or caste. Moreover he asked for the word ‘private’ be added to the Article 19 so that it looks like practicing the religion privately.14 This amendment of Mr. Hussain was rejected by the constituent assembly. Hence in this way the constitution makers gave us the liberty to propagate our respective religions in a reasonable manner. Moreover they provided us with the right to portray our faith via various signs, symbols, surnames etc. The principle of ‘unity in diversity’ was followed by disallowing a uniform dressing code.

Shri Loknath Mishra questioned the very idea of a secular state. He raised his concerns on the usage of word ‘propagate’ in the article 19(1).15 His basic concerns were that it would destroy the Hindu way of life. Moreover his view was that if India wants to be a secular state in the true sense, it should recognize no religion and keep itself distanced from religious matter. He cited examples from the Irish Constitution giving special status to religion followed by majority population, and that of U.S.S.R. giving freedom of religious worship and restricted anti-religious propaganda.

Shri H.V. Kamath, a member of the assembly from Central Provinces and Berar wanted the separation of religion from the state citing the bloodshed in European nations during the middle ages. He cited similar situation in India when King Ashoka identified himself with the Buddhist religion which developed some sort of internecine feud between the Hindus and Buddhists, which ultimately led to the overthrow and the banishment of Buddhism from India. Secondly he demanded spiritual training of the people by the state.

The amendment16 to article 19(2)(b) put forward by Mrs. G. Durgabai substituted the words ‘any classes and sections of Hindu society’ by ‘all classes and sections of the Hindu society’. Hence it helped in securing the benefits of Hindu religious institutions of public character like temples, religious maths, and educational institutions or Pathashalas to all the sections of the Hindu society.

During the debates Prime Minister Jawaharlal Nehru declared that secularism was an ideal to be achieved and that establishment of a Secular State was an act of faith, an act of faith above all for the majority community because they will have to show that they can behave

14 As discussed in the Constituent Assembly on 3rd December,1948 15 As discussed in the Constituent Assembly on 6th December,194816 Amendment number 609 discussed in the Constituent assembly as on 6th December,1948

towards others in a generous, fair and just way. When objection was sought to be voiced from certain quarters, Pandit Laxmikantha Mitra explained :

"By Secular State, as I understand, it is meant that the State is not going to make any discrimination whatsoever on the ground of religion or community against any person professing any particular form of religious faith. This means in essence that no particular religion in the State will receive any State patronage whatsoever. The State is not going to establish, patronize or endow any particular religion to the exclusion of or in preference to others and that no citizen in the State will have any preferential treatment or will be discriminated against simply on tile ground that he professed a particular form of religion. In other words, in the affairs of the State the preferring of any particular religion will not be taken into consideration at all. This I consider to be the essence of a Secular State. At the same time we must be very careful to see that in this land of ours we do not deny to anybody the right not only to profess or practice but also propagate any particular religion."

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

The article 25 of the Indian constitution grants freedom of conscience and free profession, practice and propagation of religion to the citizens of India. The point to be noted is that this freedom itself is restricted to public order, morality and health of the citizens. Along with it the other provisions of the Article 25. Clause 2 sub-clause ‘a’ of this article grants to make laws on regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice. On the other hand, sub-clause ‘b’ provides for the social welfare and reform of all the classes and sections of the Hindu society including opening of religious institutions to all the classes and sections of the Hindu society. Hence the people are free to follow their respective religions taking in view that it does not go against public policy, morality, health or the right to propagate religion of others. Hence any religious activity which disturbs the public order is violation of the Article 25. This can be implied by the S.C.’s decision in Church of God (Full gospel) in India v. K.K.R. Majestic Colony Welfare Association17 where the Supreme Court identified use of loudspeakers as not necessary for carrying out religious practices. “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 any case if there is such practice, it should not adversely affect the right of others including that of being not disturbed in their activities” A person can exercise his religious freedom so long as it does not come into conflict with the exercise of Fundamental Rights of others.

The guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a relation and this is made clear by the use of the expression "practice of religion" in article 25. Latham C.J. of the High Court of Australian while dealing with the provision of section 116 of the Australian Constitution which inter alia

17 AIR 2000 SC 2773: (2000) 7 SCC 282

forbids the Commonwealth to prohibit the "free exercise of any religion" made the following weighty observations (Vide Adelaide Company v. The Commonwealth18) :

"It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil Government should not interfere with religious opinions, it nevertheless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion. It appears to me to be difficult to maintain this distinction as relevant to the interpretation of section 116. The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion."

These observations apply fully to the protection of religion as guaranteed by the Indian Constitution. Restrictions by the State upon free exercise of religion are permitted both under articles 25 and 26 on grounds of public order, morality and health.

The Supreme Court explaining the scope of Article 25 of the Indian Constitution in Sri Lakshamana Yatendrulu v. State of Andhra Pradesh19 observed:

“ Article 25, as its language amplifies, assures to every person subject to public order, health and morality, freedom not only to entertain his religious beliefs, as may be approved of by his judgement , but also exhibits his belief in such outwardly act as he thinks proper and to propagate or disseminate his ideas for the edification of others.”

The word propagation of religions here means the ‘exposition of the tenets of the religion’. Quoting Justice Mudholkar in the case of Punjab Rao vs. D.P. Meshram and others20 “ It would thus follow that a declaration of one's belief must necessarily mean a declaration in such a way that it would be known to those whom it may interest. Therefore, if a public declaration is made by a person that he has ceased to belong to his old religion and has accepted another religion he will be taken as professing the other religion.”

Forced conversion of religion cannot be treated as propagation of one’s religion under Article 25. This view was vindicated by the Supreme Court in Rev. Stainislaus v. State of Madhya Pradesh21 as Supreme Court observed “What is freedom for one, is freedom for others, in equal measure, and there can, therefore, be no such thing as Fundamental Right to convert any person to one’s own religion”. Thus the S.C. held valid under Article 25(1) an Act prohibiting the conversion of a person by force, fraud or allurement.

The protection of right to follow one’s own religion includes the carrying out of rituals which are an integral part of the religion. Thus the article not only guarantees freedom to follow any religion of choice but also the freedom to follow the religion in a manner as integral to the tenets of that religion. As recently stated by the court:

18  67 C.L.R. 116, 127.19 AIR 1996 SC 1414: (1996) 8 SCC 70520 AIR 1965 SC 1179:[1965]1SCR84921 AIR 1977SC 908: (1977) 1 SCC 677

“The protection under articles 25 and 26 extends a guarantee for the rituals and observances, ceremonies and modes of worship which are integral part of the religion and as to what really constitutes and essential part of religion or religious practice has to be decided by the court with reference to the doctrine of a particular religion or practices regarded as parts of religion”.22

The practice of sacrificing a cow on Bakr-Id was declared was declared neither essential to nor neither necessarily required in the religious ceremonies by the Supreme Court in the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Others23.The court also held that an optional religious practice was not covered by Article 25(1) of the Indian Constitution. Here the word ‘essential religious practice’ refers to the practices which are sacrosanct and the removal of such a practice results in the very change in the basic nature of the religion. A similar view was presented by the apex court in the case of Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and others24. The court observed “Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts and practices that superstructure of a religion is built without which a religion would be no religion.” The court gave a test to determine whether a part or practice is essential to a religion by finding out whether the nature of the religion would be changed without that part or practice. “If the taking away of these part or practice could result in a fundamental change in the character of that religion or its belief, then such part can be treated as an essential or integral part.” What constitutes an integral or essential part of a religion has to be determined with reference to the doctrines, practices, tenets, historical background etc. of the given religion.

To make sure that secularism does not remain only a bookish concept but is applied in to within the boundaries of the country, the Supreme Court in the case of R.C. Poudyal and others v. Union of India and others25 held that the provision of separate electoral rolls on the basis of religion would contravene Article 15(1) of the Constitution of India which states that “ The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” It would also contravene article 325 of the constitution which states that “No person to be ineligible for inclusion in, or to claim to be included in a special, electoral roll on grounds of religion, race, caste or sex.” The court observed that “a separate electorate for a religious denomination would be obnoxious to the fundamental principles of our secular Constitution. If a provision is made purely on the basis of religious considerations for election of ar member of that religious group on the basis of a separate electorate, that would, indeed, the wholly unconstitutional.”

Regarding the power of the state in managing the affairs of religion, the court in the case of Bhuri Nath and others v. State of J&K and others26 observed “The sovereign power of the Slate is to supervise and ensure proper administration or management of religious institution or an endowment. Secularism, being a basic feature of the Constitution, the Constitution does 22 N.Adithyan v. Travancore Devaswom Board, (2002) 8 SCC 10623 (2005) 8 SCC 53424 (2004) 12 SCC 77025 AIR1993SC1804:[1993]1SCR89126 AIR1997SC1711:(1997)2SCC745:[1997]1SCR138

not permit the State to interfere with the management of religious affairs of any religion or denomination. But the State has power to interfere with the same for proper supervision and efficient management of religious institution or endowment which is secular in its character. The abolition of the right to receive offerings is part of secular management of the religious institution or endowment.”

ARTICLE 26: Freedom to manage religious affairs

The article 26 of the Indian Constitution grants freedom to manage religious affairs to the citizens. The broad principle behind it is that a state made law can regulate the administration of property of religious endowment but law cannot take away the right of administration altogether.

This freedom is subjected to public order, morality and health and grants every religious denomination the right to establish and maintain institutions for religious and charitable purposes, manage its own affairs in the matters of religion, own and acquire movable and immovable property and to administer such property in accordance with law.

The word ‘religious denomination’ here refers to sects and sub-sects of a religion having four distinctive features:

1. Common faith

2. Common spiritual organization

3. Distinctive name

4. Belief in teacher of philosophy on whom the denomination was made.

Hence religious denomination may be defined as “A collection of individuals who have a system of beliefs or doctrines which they regard as conductive to their spiritual well being, that is, a common faith.”27

As the judiciary interprets the rights of a religious denomination, a religious denominations enjoys full autonomy in matters of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has jurisdiction to interfere with their decision in such matters. The same was decided in the case of The Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt28. “This religious denomination has a fundamental right under article 26 to manage its own affairs in matters of religious through the Mathadhipati who is their spiritual head and superior, and those provisions of the Act, which substantially take away the rights of the Mathadhipati in this respect, amount to violation of the fundamental right guaranteed under article 26”

27 Arvind P. Datar, Commentary On Constitution Of India, Para. 3,Pg. 450 , Wadhwa Nagpur(2007)28 AIR1954SC282:20(1954)CLT250(SC):[1954]1SCR1005

However the above view of the judiciary was refined after a little time when the above mentioned case was overruled in Sri Venkatramana Devaru and others v. The State of Mysore and others29. The case related to right of worship of other communities in a temple established by the Gowda Saraswath Brahmins.

The substantial question of law, which was sought to be decided in this case was whether the right of a religious denomination to manage its own affairs in matters of religion guaranteed under Art. 26(b), is subject to, and can be controlled by, a law protected by Art. 25(2)(b), throwing open a Hindu public temple to all classes and sections of Hindus. The judgment of the case which court held was that “matters of religion in Art. 26(b) include the right to exclude persons who are not entitled to participate in the worship according to the tenets of the institution. Under this Article, therefore, the appellants would be entitled to exclude all persons other than Gowda Saraswath Brahmins from entering into the temple for worship. Article 25(2)(b) enacts that a law throwing open public temples to all classes of Hindus is valid. The word 'public' includes, in its ordinary acceptation, any section of the public, and the suit temple would be a public institution within Art. 25(2)(b).” A balance was struck between the rights of Gowda Saraswath Brahmins as they were granted the right to hold special rituals and only at that particular time the public was disallowed to enter the temple. Rest of the time, the temple was open to members of the hindu society as given under Article 25(2)(b) of the constitution.

According to the harmonious construction of the parts article 25 and 26, it was decided that article 26(b) of the constitution which provides for the freedom of religious denomination to manage its own affairs in matters of the religion would be subject to article 25(2)(b) of the constitution which provides for the opening of Hindu institutions of religious nature to all sections and classes of Hindu society . That is a right conferred on "all classes and sections of Hindus" to enter into a public temple, and on the unqualified terms of that Article, that right must be available, whether it is sought to be exercised against an individual under Art. 25(1) or against a denomination under Art. 26(b). The fact is that though Art. 25(1) deals with rights of individuals, Art. 25(2) is much wider in its contents and has reference to the rights of communities, and controls both Art. 25(1) and Art. 26(b).

Dawoodi Bohra is similarly a religious denomination in Shia Muslim. In the case of Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay30, petitioner, the head of the Dawoodi Bohra community challenged the constitutional validity of Section 3 of the Bombay Prevention of Excommunication Act, 1949, constituted for the prevention of excommunication. Ex-Communication may be defined as ‘exclusion from fellowship in a group or community’.31 Excommunication is basically a religious tool that is used to maintain the purity of the community. By excommunicating from the community, the community head removes unwanted elements from the community which act as source of disturbance for the whole community. Justice Das Gupta in this case made an interesting observation “in an article in the Encyclopedia of the Social Sciences from the pen of Prof. Hazeltine.

29 AIR1958SC255:[1958]1SCR89530 AIR1962SC853:[1962]Supp(2)SCR49631 Available on http://www.merriam-webster.com/dictionary/excommunication as accessed on Oct. 16,2011

"Excommunication," says Prof. Hazeltine, "in one or another of the several different meanings of the term has always and in all civilizations been one the principal means of maintaining discipline within religious organizations and hence of preserving and strengthening their solidarity.” Thus Excommunication was proved to be a tool in usage by various communities in the past.

In the judgement the court observed that the said enactment infringed the fundamental rights of members of the Dawoodi Bohra community and its religious head. It was held that the impugned act violated Article 25 and 26 of the Constitution of India, hence it was void. “The impugned Act makes even such excommunications invalid and takes away the power of the Dai as the head of the community to excommunicate even on religious grounds. It therefore, clearly interferes with the right of the Dawoodi Bohra community under clause (b) of Art. 26 of the Constitution.”

In the case of Dr. Ismail Faruqui vs. Union of India though the ‘Acquisition of Certain Area at Ayodhya Act, 1993’ which was passed by the legislature to acquire the land where Babri Masjid stood was declared unconstitutional, it was not on the basis of violation of Article 25 or 26 of constitution but due to the unconstitutional nature of some other provisions of the act.

The court held that subject to the protection under Articles 25 and 26 of the Constitution, places of religious worship like mosques, churches, temples etc. can be acquired under the State's sovereign power of acquisition. Such acquisition per se does not violate either Article 25 or Article 26 of the Constitution. The decisions relating to taking over of the management have no bearing on the sovereign power of the State to acquire property.

Citing Khajamian Wakf Estates v. State of Madras32 which held:

"It was next urged that by acquiring the properties belonging to religious denominations the legislature violated Article 26(c) and (d) which provide that religious denominations shall have the right to own and acquire movable and immovable property and administer such property in accordance with law. These provisions do not take away the right of the State to acquire property belonging to religious denominations. Those denominations can own or acquire properties and administer them in accordance with law. That does not mean that the property owned by them cannot be acquired. As a result of acquisition they cease to own that property. Thereafter their right to administer that property ceases because it is no longer their property. Article 26 does not interfere with the right of the State to acquire property."

ARTICLE 27: Freedom as to payment of taxes for the promotion of any particular religion

Stating the provisions of the article:

32 1971 AIR 161, 1971 SCR (2) 790

“No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.”

Meaning thereby that no person shall be coerced or forced to pay any kind of tax, in kind or cash, the same being used for some kind of religious purpose which may include the promotion, maintenance, propagation of some specific religion or some specific religious denomination.

Article 27 is one of the essential outcomes of the concept of secularism enshrined by the Indian constitution. A ‘tax’ is exaction of money for some public purpose. Only the state has the right to collect tax and no other body does. If the state uses the money collected by taxes in promotion of some specific religion or some specific religious denomination, it means that the state is patronizing and supporting that particular religion or religious denomination. This violates the spirit of secularism enshrined by the Indian constitution. Hence the prohibition against any such kind of tax is justified. The distinction between ‘tax’ and ‘fee’ has been adhered to in the context of this article also so that fees for secular regulation can be charged for defraying expenses of administrative regulation.

An observation made by Justice Mukherjee in the case of Sri Lakshmindra Theertha Swamiar of Sri. Shirur Mutt v. The Commr. Hindu Religious Endowments33 regarding article 27 of the constitution “What is forbidden by the Article is the specific appropriation of the proceeds of any tax in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. The reason underlying this provision is obvious. Ours being a secular State and there being freedom of religion guaranteed by the Constitution, both to individuals and to groups, it is against the policy of the Constitution to pay out of public funds any money for the promotion or maintenance of any particular religion or religious denomination.”

The reconstruction of Hindu temples and Muslim mosques which were destroyed during some clash between Hindus and Muslims done as a part of relief work would not amount to the violation of Article 27 of the constitution which prohibits collection of taxes for religious purpose. The same was held by the High Court of Kerala in the case of K.Reghunath v. State of Kerala and Others34 .The line of reasoning followed by the court was that the welfare of the public lies above everything and the resconstruction of religious sites of both the communities which were destroyed during riots does not amount to the patronizing or promotion of any religion. “Houses, schools and places of worship belonging to both religious groups, Hindus and Muslims, were damaged, and in restoring them to their original condition, there is no question of promotion or maintenance of any particular religion or religious denomination: buildings of both sections are repaired and restored: it is not because the buildings belonged to a particular religious denomination that they are restored, but because they were damaged in the incidents. Even otherwise, we mean, even if places of worship belonging to one religious denomination alone were damaged and they alone are to

33 Supra note 734 AIR1974Ker48

be reconstructed even then there is no question of promotion or maintenance of that particular religion or religious denomination. If a mad and fanatic mob attacked only the places of worship of a particular religious denomination, then the restoration or reconstruction has necessarily to be of the places of Worship of that particular religious denomination: still (and this is evident), there is no question of promotion or maintenance of that particular religion or religious denomination.”

ARTICLE 28: Freedom as to attendance at religious instruction or religious worship in certain educational institution

This article of the constitution under Clause 1 prevents giving religious instructions in any educational institution wholly maintained out of the State funds. Clause 2 of this article prevents application of clause 1 to any educational institution administered by the state but established under any endowment or trust which requires that religious instructions be imparted in such institutions. Moreover clause 3 of the article grants any person freedom to attend or not to attend any religious instruction being granted in an institution being run wholly by state funds and for the minors, if his guardian desires so or not.

Thus the state has granted freedom and made sure that it follows the principle of secularism enshrined by it in the constitution by granting freedom to any individual in attending or not attending any religious instruction which is being granted in an educational institution running on funds granted by the state.

In the case of D.A.V. College Etc. v. State of Punjab35 it was held that the Guru Nanak Dev University being a state funded university is not protected by article 28(2) of the Indian Constituion, hence it cannot make it compulsory to study the life and teachings of Guru Nanak Dev ji who was the founder of Sikh religion as this action of theirs promoted Sikh religion. However as an academic field of study, it was allowed to continue the course offered on studies of the teachings of Guru Nanak as it was nothing but a specialized field of study which persons interested in could enroll them in.

Hence if we see, the judiciary has tried to draw a line between compulsiveness and willingness to study any course. It has tried maintain religious freedom as well as freedom of the institution to carry out any special course related to the teachings of some religious leader. The judiciary has interpreted the article as that mere offering to study any particular course related to some religious instructions does not amount to violation of article 28 of the constitution but forcing someone to study any teaching of religious character violates his right secured under article 28 of the constitution. Moreover study life of great men should not merely be restricted because they were associated with some kind of religion. Instead their life and teaching act as a source of inspiration for the members of the society.

35 1971 AIR 1737, 1971 SCR 688

The judiciary interpreted article 28 of the constitution in T.M.A. Pai Foundation and others vs. State of Karnataka and others36 :

“Article 28(1) prohibits any educational institution, which is wholly maintained out of state funds, to provide for religious instruction. Moral education dissociation from any demoninational doctrine is not prohibited; but, as the state is intended to be secular, an educational institution wholly maintained out of state funds cannot impart or provide for any religious instruction.

The exception to Article 28(1) is contained in Article 28(2). Article 28(2) deals with cases where, by an endowment or trust, an institution is established, and the terms of the endowment or the trust require the imparting of religious instruction, and where that institution is administered by the state. In such a case, the prohibition contained in Article 28(1) does not apply. If the administration of such an institution is voluntarily given to the government, or the government, for a good reason and in accordance with law, assumes or takes over the management of that institution, say on account of mal-administration, then the government, on assuming the administration of the institution, would be obliged to continue with the imparting of religious instruction as provided by the endowment or the trust.”

While article 28(3) was interpreted as “Article 28(3) gives the person attending any educational institution the right not to take part in any religious instruction, which may be imparted by an institution recognized by the state, or receiving aid from the state. Such a person also has the right not to attend any religious worship that may be conducted in such an institution, or in any premises attached thereto, unless such a person, or if he/she is a minor, his/her guardian, has given his/her consent. The reading of Article 28(3) clearly shows that no person attending an educational institution can be required to take part in any religious instruction or any religious worship, unless the person or his/her guardian has given his/her consent thereto, in a case where the educational institution has been recognized by the state or receives aid out of its funds.”

The rights of a minority institution were declared as follows, “A minority educational institution may choose not to take any aid from the State and may also not seek any recognition or affiliation. Such institutions cannot indulge in any activity which is violative of any law of the land. They are free to admit all students of their own minority community if they so choose to do.” On one hand while the scope of governmental regulation in unaided educational institutions was curtailed. The court held that the state cannot interfere if the admission was on merit and a reasonable fee was being charged. On the other hand, however, minority educational institutions receiving aid from the state would have to admit a reasonable number of students from non-minority groups.

CONCLUSION

36 (2002) 8 S.C.C. 481

The ‘Freedom of Religion’ as provided by the Constitution of India under articles 25, 26, 27 and 28 is a fundamental right granted to us by our constitution makers. The amount of freedom provided to us by our constitution makers regarding freedom of religion is far more than the freedom provided by any constitution in the world. A probable reason being the country’s past which is full of religious preaching of numerous philosophers. To different person these teachings appear to be different, hence we have full right to observe and propagate any religion we want to. But these rights provided under the above mentioned articles are not absolute. These rights are subject to public peace, public policy, health, willingness of individuals and many other factors. The Union of India observes secularism i.e. a policy which promotes neutrality of the state in matters of religion. In any case the policy of public welfare clashes with the ideals of state secularism, then the policy of welfare presides over the ideals of state secularism. Hence welfare of its citizens is the utmost Dharma (Sanskrit for duty) of the state. The bulwark of deciding the matters related to religion lies upon the shoulders of the judiciary.

In the past few years, Indian judiciary has acted in a very mature manner in dealing with matters related to religion and the rights and obligations of various religious groups. Over the years, by way of judicial precedents, the court has evolved a proper mechanism which has promoted religious peace and camaraderie in India.

I love you when you bow in your mosque, kneel in your temple, pray in your church. For you and I are sons of one religion, and it is the spirit. Khalil Gibran