25.

Freedom of conscience and free profession, practice and propagation

of religion
(1)subject to public order, morality and health and to the other provisions
of this Part, all persons are equally entitled to freedom of conscience and
the right freely to profess, practise and propagate religion
(2) Nothing in this article shall affect the operation of any existing law or
prevent the State from making any law
(a)regulating or restricting any economic, financial, political or other
secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of
Hindu religious institutions of a public character to all classes and
sections of Hindus Explanation I The wearing and carrying of kirpans
shall be deemed to be included in the profession of the Sikh religion
Explanation II In sub clause (b) of clause reference to Hindus shall be
construed as including a reference to persons professing the Sikh, Jaina
or Buddhist religion, and the reference to Hindu religious institutions
shall be construed accordingly.

Article 25 should be read along in the lines of article 26. While article 25
guarantees rights to an individual, article 26 provides rights to an
organised body of the individuals, like that of an religious denomination
or any section of them. Both these articles protect matters of religious
doctrines or belief as well as acts done in pursuance of religion – rituals,
observances, ceremonies and mode of worship. These articles embody
the principles of religious tolerance that has been one of the
characteristic features of Indian civilisation from the start of its history,
the instances and periods when the feature was absent were merely
temporary aberrations. The founding fathers of the constitution wanted the
secular nature of the Indian polity which these articles provide.

The constitution does not define “religion” anywhere, but the supreme court

Gave a comprehensive definition of religion in commr. Hindu religious

endowments v Sri laksmindra thirtha swamiyar of sri srirur mutt in the
following words.
Religion is certainly a matter of faith with individuals or communities
and it is not necessarily theistic. There are well know religions in India like
Buddhism or Jainism which do not believe in God or in any intelligent first
cause. A religion undoubtedly has its own basis in a system of beliefs or
doctrines which are regarded by those who profess that religion as conclusive
to their spiritual well being, but it would not be correct to say that religion is
nothing else but a doctrine or belief. A religion may not only lay down a code
of ethical rule for its followers to accept, it might prescribe rituals and
observance, ceremonies and modes of worship which are regarded as integral
parts of religion, and these forms and observations might extend even to
matters of food and dress.

CLAUSE(1)

Article 25(1) guarantees to every person, and not merely to the citizens of
India, the freedom of conscience and the right to freely profess, practise and
propagate religion. The right is subject in every case to public order, health
and morality and other provisions of of part III. Further exceptions are
engrafted upon this right by clause(2) of the article. Sub clause (a) of clause(2)
saves the power of the state to make laws regulating, or restricting any
economic, financial, political or secular activity which may be associated with
religious practise and sub-clause(b) reserves the state’s power to make laws
providing for social welfare and social reform even though they might interfere
with religious practises.

Freedom of conscience connotes a person’s right to entertain beliefs and

doctrines concerning matters, which are regarded buy him to be conductive to
his spiritual well-being. A person has freedom to believe in religious tents of
any sect or community.

The right is not only to entertain such religious believes ass may be approved
by his judgement or conscience but also to exhibit his sentiments in overt acts
as are enjoined by his religion. In the words of the article he may “profess,
practise and propagate his religion”. To profess a religion means the right to
declare freely and openly one’s faith. He may freely practise his religion.”
Religious practises or performances of acts in pursuance of religious belief are
as much a part of religion as faith or belief in particular doctrine”. Rituals and
observances, ceremonies and modes of worship considered by a religion to be
its integral and essential part are also secured. What constitutes an integral
and essential part of a religion or a religious practise has to be decided by the
courts with reference to the doctrine of a particular religion and include
practises regarded by the community as part of its religion. Duties such as
collection of offerings, assigned to the sevaks(servants), are not practise of
religion. Therefore any arrangement in the temple, such as placing of hundis in
various places of the temple for making offerings by the devotes, which
deprives the sevaks of the duty to collect offerings, does not amount to
infringement of their right to practise religion”.

Again, a person may propagate his religion freely his religious views for the
edification of others. It is immaterial whether the propagation is made by a
person in his individual capacity or on behalf of a church or institution. The
right to religion includes the right to seek declaration that the church is
Episcopal.

In a judgement of far reaching importance in the national anthem case, the

supreme court has held that no person can be compelled to sing the national
anthem “if he has genuine, conscientious religious objection”. In the instant
case, three children belonging to the jehova witness of the Christian
community were expelled from the school for refusing to sing the national
anthem. They challenged the validity of their expulsion on the ground that it
was violative of their fundamental rights under article 25(1). A circular issued
by the director of public instructions has made it up compulsory for all the
children to sing the national anthem. They had stood up respectfully during the
national anthem was played but they dint sing along. They refused to sing
because it was against their religion to sing in praise of anything other than
that of their god, jehova. The kerala high court held that it was their
fundamental duty to sing the national anthem. It held that, they not singing
the national anthem would bring bad influence amongst other pupils and it
was right of the headmistress from preventing them from attending any
classes until they gave it in writing that they will take part in the national
anthem singing.

On appeal, however, the supreme court reversed the high court decision and
held that there is no legal obligation in India for a citizen to sing the national
anthem. The right under article 25(1) cannot be regulated by executive
instructions which had no force of law. It held that the rising of the children is
enough and it does not disrespect the national anthem under article 51-A. 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 court’s 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
Aurobindo’s disciples took his teaching’s 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 that-
“the right to practise, profess and propagate religion guaranteed under article
25 of the constitution does not necessarily include the right to acquire or own
or possess property. Similarly this right does not extend to this right of worship
at any and every place of worship so that any hinderance to worship at a
particular place per se may infringe the religious freedom...

While offer of prayer or worship is a religious practise, its offering, its offering
at every location where such prayers can be offered would not be an essential
or integral part of such religious practise unless the place has a particular
significance for that religion so as to form an essential and integral part
thereof. Place of worship of any religion having particular significance for that
religion, to make it an essential or integral part of that religion, stand on a
different footing and have to be treated differently and more reverentially...

A mosque is not an essential part of the islam religion and a namaz can be
offered anywhere, even in open. Accordingly,its acquisition is not prohibited y
the provisions in the constitution of India.

NON-BRAHMINS CAN BE APPOINTED AS PUJARI IN TEMPLE

In a judgement of far reaching consequence the supreme court has held that
Brahmins do not have monopoly over performing pooja in a temple and said
that a non Brahmin can be appointed as the poojari if he is well versed with
the rituals. This ruling was given a bench comprising justice s. Rajendra babu
and justice doraisami raju while upholding the appointment of a non-brahmin
as pujari in kongoopilly neerikoda Siva temple, at alangad village in
ernakulam,kerala.

The court said that if traditionally or conventionally in any temple, all along a
Brahmin alone was conducting pooja or performing the job of shantikaran, it
might not be because a person other than the Brahmin was prohibited from
doing so because he was not a Brahmin. It might be because others were not
in a position and, as a matter of fact, were prohibited from learning rituals or
mastering the vedic literature, rites or performance of rituals and wearing
sacred thread by getting initiated into the order. So there is no justification in
insisting a Brahmin alone can perform the rites and rituals in the temple as
part of the rights and freedom guaranteed under art 25 of the constitution and
further claim that any deviation would be tantamount to violation of any such
guarantee under the constitution.

In ismail farauqui v union of India, the supreme court by a majority has held
that the state can in exercise of its sovereign power acquire places of worship
like mosque, church, temple etc. Which is independent of article 300-a of the
constitution if it is necessary for the maintenance of law and order. Such
acquisition per se does not violate art 25 and 26 of the constitution. A practise
may be a religious practise but not an essential part of the religious practise.
While offer of prayers or worship is an religious practise, its offering at every
location where such prayers can be offered would not be an essential religious
practise. Status of mosque in secular India is same as that of an church or an
temple. A mosque is not an essential part of islam and the namaz can be
offered anywhere. Under the muslim law in India, title to an mosque can be
lost by adverse possession. The matter in this case was referred to the
supreme court for its advisory opinion by the president due to the demolition
of babri masjid in Ayodhya, law and order in the country was disturbed. In
order to defuse the crisis, the union government acquired the whole property
surrounding the mosque. This was challenged by the petitioners on the ground
that it was violative of art 25 and 26 as they were deprived of their right to
worship in the mosque but Hindus were allowed to worship therein. The court
held the act valid as it does not interfere with the essential element of religion.

In moulana mufty syed Mohamed v state of west Bengal, the Calcutta high
court held that the restrictions imposed by the state on the use of microphone
and loudspeakers at the time of azan. The use of loudspeaker is not an
essential part of azan. It is not only an pollution but it is also causes health
hazards.

NOISE POLLUTION IN THE NAME OF RELIGION NOT ALLOWED-

In 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 person’s religious