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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.
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
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
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.
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
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