Right to Freedom of Religion

The Constitution of India ensures freedom of religion, making India a secular state according to Articles 25 to 28, which uphold neutrality towards all religions. The term "secular" appears in the Constitution's Preamble. Individuals have the right to practice, profess, and propagate their chosen religion, although this freedom is subject to public order, health, morality, and other constitutional provisions. Restrictions can regulate secular activities associated with religion, including the management of religious affairs and taxation to promote a religion. However, religious instruction is not mandatory in educational institutions. The Constitution protects essential and compulsory aspects of religion, not optional ones.

In crafting Articles 25-28 of the Constitution, India responded to the violence and displacement during the partition in 1947, prioritizing secularism to protect minority rights. Despite a Hindu-majority population, India aimed to provide equal security to all communities, contrasting with Pakistan's creation as an Islamic state. This decision stemmed from the ethos of India's freedom fighters, who envisioned an inclusive nation. Leaders like Mahatma Gandhi and Jawaharlal Nehru championed unity amidst diversity, rejecting religious discrimination. Hence, India's secular constitution symbolizes a commitment to pluralism and equality, ensuring that all citizens, regardless of their faith, enjoy the freedom to practice and profess their religion without fear of persecution.

The right to freedom of religion is a fundamental principle enshrined in the Indian Constitution, reflecting the country's commitment to secularism and religious pluralism. Articles 25-28 of the Constitution guarantee individuals the freedom to profess, practice, and propagate their religion of choice while also promoting equality and preventing discrimination on religious grounds.
The right to freedom of religion comprises four fundamental rights:

• Article 25: This article guarantees freedom of conscience and the freedom to profess, practice, and propagate religion freely
• Article 26: It gives freedom to manage religious affairs.
• Article 27: This article ensures freedom from compulsion to pay taxes for the promotion of any particular religion.
• Article 28: It grants freedom regarding attendance at religious instruction or religious worship in certain educational institutions.

1. Freedom of Conscience and Free Profession, Practice and Propagation of Religion
   • Article 25 of the Indian Constitution guarantees freedom of conscience and the right to freely profess, practice, and propagate religion.
   • Freedom of conscience refers to the inner freedom of individuals to establish their relationship with God or other beings as they desire.
   • The right to profess allows individuals to openly declare their religious beliefs and faith.
   • The right to practice includes performing religious rituals, ceremonies, and expressing beliefs and ideas.
   • The right to propagate entails spreading one's religious beliefs to others or explaining the principles of one's religion.
   • However, this does not include the right to forcibly convert others to one's own religion, as such actions would violate the freedom of conscience guaranteed to all individuals
   • Article 25 also covers religious practices, not just beliefs, and extends these rights to all individuals, regardless of citizenship status.
   • However, these rights are subject to limitations concerning public order, morality, health, and other fundamental rights provisions.
   • The state is permitted to regulate or restrict secular activities associated with religious practices and can implement social welfare and reforms, including opening Hindu religious institutions to all sections of society.
2. Freedom to Manage Religious Affairs: Article 26 of the Indian Constitution grants every religious denomination or any of its sections the right
   • 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 law
   
   The rights under Article 26 are subject only to public order, morality, and health, and are not subject to other provisions relating to Fundamental Rights like Article 25.
   

   What is a Religious Denomination?
   The Supreme Court ruled that for a group to be considered a religious denomination, it must meet three criteria:

   • It should consist of individuals who share a system of beliefs (doctrines) that they believe contribute to their spiritual well-being.
   • It should have a common organisation; and
   • It should be identified by a distinctive name.
3. Freedom from Taxation for Promotion of a Religion
   • Article 27 of the Indian Constitution states that no person can be forced to pay taxes for the promotion or maintenance of any particular religion or religious denomination
   • This provision specifically prohibits the imposition of a tax, but not a fee.
   • Therefore, fees can be imposed on pilgrims for special services or safety measures, and on religious endowments for regulatory expenses.
   • The state is not allowed to use public money collected through taxes to promote or maintain any particular religion.
   • This provision also prohibits the state from favoring, patronizing, or supporting one religion over another.
   • This means that the taxes can be utilized for the promotion or maintenance of all religions equally.
   • Thus, the constitution reinforces the secular nature of the Indian political system.
4. Freedom from Attending Religious Instruction
   • Under Article 28, no religious instruction is allowed in educational institutions that are fully funded by the State.
   • However, this rule does not apply to educational institutions administered by the State but established under an endowment or trust that mandates religious instruction.
   • Students attending educational institutions recognized by the State or receiving aid from the State cannot be compelled to attend religious instruction or worship without their consent
   • Therefore, Article 28 distinguishes between four types of educational institutions:
     • Institutions wholly maintained by the State: No religious instruction is allowed.
     • Institutions administered by the State but established under any endowment or trust: Religious instruction is permitted.
     • Institutions recognized by the State: Religious instruction is permitted on a voluntary basis.
     • Institutions receiving aid from the State: Religious instruction is permitted on a voluntary basis

The Indian model of secularism emphasizes equality and support for all religions by the state, while the Western model prioritizes state neutrality and the separation of religion from government affairs.

Indian Model of Secularism:

• Positive Secularism: India follows a positive or inclusive model of secularism, which involves equal respect and support for all religions by the state.
• Equal Treatment: The Indian Constitution guarantees freedom of religion to all citizens and prohibits discrimination based on religion.
• State Intervention: The Indian state can intervene in religious matters to ensure equality and social justice, as seen in reforms like banning untouchability and triple talaq.
• Equal Representation: The Indian government allows religious communities to manage their own affairs and institutions while also providing support for religious minorities.

Western Model of Secularism:

• Negative Secularism: Western countries typically follow a negative or neutral model of secularism, which involves the separation of religion from state affairs.
• State Neutrality: Western secularism emphasizes state neutrality in religious matters, with the government refraining from favoring or interfering with any particular religion.
• Separation of Church and State: Western secularism advocates for a clear separation between religious institutions and government, often resulting in the removal of religious influence from public institutions and policies.
• Freedom of Religion: While Western secularism upholds freedom of religion, it primarily focuses on protecting individuals from religious interference rather than actively supporting religious diversity.

• Shah Bano Case vs Mohd Ahmed Khan (1985):
  • In this landmark case, the Supreme Court observed that it was regrettable that Article 44 of the Indian Constitution, which calls for a Uniform Civil Code, had remained unimplemented. The case involved the rights of a Muslim woman, Shah Bano, to seek maintenance from her husband after their divorce.
• Shayara Bano Case (2017):
  • In this case, the Supreme Court declared the practice of Triple Talaq (Talaq-e-Biddat) unconstitutional, as it violated the fundamental rights of Muslim women. The court held that the practice of instant triple talaq was arbitrary and not essential to Islamic practices.
• Shirur Matt Case:
  • In this case, the Supreme Court introduced the "Doctrine of Essentiality." The court held that only religious practices considered essential and integral to a religion would be protected under Article 25 of the Indian Constitution. The case involved a dispute regarding the rights and management of a Hindu religious institution.
• Indian Young Lawyers Association Case (2018):
  • In this case, the Supreme Court affirmed that the right to religious freedom, guaranteed under Article 25 of the Indian Constitution, must be exercised in a manner consistent with the provisions of Part III (Fundamental Rights). The case pertained to the entry of women of menstruating age into the Sabarimala Temple in Kerala

The Uniform Civil Code (UCC) in India has been a subject of constitutional debates and discussions among various stakeholders.

• Social Benefits:
  • Detaching law from religion is crucial for achieving a secular and socialistic society.
  • UCC is necessary to address prevailing social issues and promote gender equality, such as abolishing practices like Triple Talaq and giving equal succession rights to men and women.
  • It counters communalism by eliminating disparities arising from different personal laws.
• Social Evolution: With a significant portion of India's population being young (55% below 25 years), there is a growing aspiration for universal principles of humanity, equality, and modernity.
• Political Benefits:
  • UCC upholds individual rights guaranteed in the Constitution, which may be restricted under religious practices.
  • It fulfills the constitutional mandate under Article 44 for a UCC.
  • Promotes national integration by establishing one nation under one law.
• Legal Simplification: UCC would simplify the legal system, reduce litigations, and expedite adjudications, thus leading to a more efficient legal framework. Judicial orders, such as in the Shah Bano case, have emphasized the need to move towards a UCC.
• Economic Implications: UCC supports a secular economic policy and ensures equality of opportunity for all citizens

• Constitutional Challenges: The diverse nature of personal laws makes achieving uniformity difficult and may potentially violate fundamental rights guaranteed under Article 25 and Article 26.
• Socio-Religious Obstacles:
  • The patriarchal mindset prevailing in Indian society poses a challenge to implementing gender-equitable laws.
  • Opposition from religious groups, often driven by fundamentalism, impedes the implementation of a UCC.
  • The UCC debate is sometimes communalized, leading to further resistance and polarization.
• Minority Insecurities: Minority religions fear the imposition of majoritarian personal laws, leading to insecurities and resistance.
• Administrative Considerations: Debates exist regarding whether the UCC should be an amalgamation of different personal laws or a completely new code.

In essence, Articles 25-28 of the Indian Constitution embody the nation's commitment to religious freedom, tolerance, and pluralism. They reflect the vision of the framers of the Constitution to create a society where every individual enjoys the right to practice their religion freely, while also respecting the rights of others. By upholding these fundamental principles, India reaffirms its status as a secular and inclusive democracy, where the dignity and rights of all citizens are safeguarded.