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Presented by: Dr. Atmaram Shelke

Secularism and Freedom of Religion

8.1. Secularism as Basic Structure of the

Constitution
8.2. Freedom of Religion and Restrictions

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-Preamble-
Preamble- Establishment of Sovereign, Socialistic,
Secular and Democratic Republic
-
SE CULAR -42-
42-76: America –wall of separation…
State-
State-No official religion – not atheistic –
neutral…
neutral…Relation between –man and man…God
man…God

SR Bommai v. Union AIR 1994 SC 1918=basic

1918=basic
structure
Aruna Roy v. Union AIR 2002 SC 3176-
3176-Eduction
policy-
policy-2002-
2002-Secularism – developing, understanding
religion-Sarva Dharma
and respect for different religion-
Sambhav – rather than Sarva Dharma Abhav…

25. Freedom of conscience and free profession, practice and propagation of

religion:

1. Subject to public order,

order, morality and health and to the other provisions of this
Part,
Part, all persons
person 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:
law

(a) regulating or restricting any economic, financial, political or other

secular activity which may be associated with religious practice;
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,
religion
and the reference to Hindu religious institutions shall be construed accordingly.

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Conscience-inner-relation
Conscience relation with God-
God-he/she likes

Profess-Declare
Profess freely and openly-One’s
faith/belief (Preamble liberty-)

Practice-perform-religion-duties,
Practice rites, rituals-
pooja/prayers/

Propagate-
Propagate spread/ publicize- (is it include
criticize?)- persuasion and exposition –without
coercion…

Bajoe Emmanual v. Kel (1984) JSCC 615:

Circular-director
Circular of public instructions-
instructions-compulsory –Sing
Sing National
Anthem-
Anthem-
National Anthem – “Jehova’s witness”-
witness” Christian communities…

3 children expelled from school…

school
Not singing National Anthem
-Tenets
Tenets of their religious faith –did not permit-join –any rituals-
rituals-except –
prayer
praye to johana-God.

Kerala HC: Fundamental Duty-

Duty permitting –band -influence
influence on other
students/within power-not permitting them to attend classes/Allowing –
students/
development of –tendency
tendency:
tendency endanger security, integrity, unity…

SC: Appeal:
Appeal Singing –National Anthem-not a legal obligation
They have shown proper respect-
respect by standing up – Not violated 51A.-
51A.
Not violated –National
National Honour Act, 1971.
1971
*

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Ismail Faruqui v. Union (1994) 6 SCC 360:

Advisory-
Advisory- 143
-State –sovereign
sovereign power –Acquire
Acquire places of worship=(law
order) Art. 300A
and order)-

Art. 25-
25-Protects-
Protects an essential and integral part of
religion…
religion

Prayer- open or any place

(=Narrowed scope of right religion/differentiated religious
–other –customs)

Mohd.
Mohd. Hanif Quareshi v. State of Bihar AIR 1958 SC 731-
731-
sacrifices of cow-Bakrid
cow day not essential par of –
Mohammedan religion…

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Aruna Roy v. Union AIR 2002 SC 3176-

3176-
J. Shaha,
Shaha, Dharmadhikari and J. H.K. Saroj;
Saroj;

Eduction policy-
policy-2002-
2002-Secularism – developing, understanding
religion-Sarva Dharma Sambhav –
and respect for different religion-
rather than Sarva Dharma Abhav…

-We are heading- materialistic society –disregarding

disregarding entire value
based society

Region-
Region control- animal instinct-in
instinct human- beings.
beings
Knowledge-
Knowledge-different religion-
religion communal -harmony…
harmony

Dharmdhikari: “Democracy cannot be survive –constitution

constitution
cannot work-citizens
work are learned, intelligent and moral
character…
characte truth, love and compassion …

Basic Structure:
SR Bommai v. Union AIR 1994 SC 1918=basic
1918=basic
structure

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S.R. Bommai v. Union of India-

India-(1994) 3 SCC 1
(Pandian,
Pandian, S.R. (J), Ahmadi,
Ahmadi, A.M. (J) (J), Verma,
Verma, J.S. (J) Sawant,
Sawant, P.B.,
Ramaswamy,
Ramaswamy, K. & Agrawal,
Agrawal, S.C. (J), Yogeshwar Dayal Reddy, B.P.
(J))

-9
9 Judges Bench-
Bench

1) Satisfaction of the President under Art. 356- subject to

judicial review?-Application
review? of principles of adm.
adm. Law?

2) Satisfaction? – Subjective or objective?

3)Federalism
Federalism –how to interpret the constitution?

4) Secularism?-Babari
Secularism Masjid- not protected –life/property of
people

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Essential Facts:
1985-
1985 Election in Karnatka-
Karnatka- Janta Dal won -139
139 Majority

-R.K
R.K –Hegde-
Hegde elected –chief
chief minister-
minister- resigned;
resigned S. R. Bommai –was elected.
elected
-reorganization of ministries-Kalyan Molakery
-Defected
Defected from Janta Dal-wrote
Dal letter-want
want of confidence-19
confidence Members
20 Apr. 1989-7
1989 7 out of 19 claimed –sign.
sign. obtained – mis-
mis-presentation

Governor –report
report –President -dissolved –assembly-assumed
assumed the power-
power-
failure of constitutional machinery.
machinery.
–without giving opportunity to prove majority.
majority

S.R. Bommai-Writ
Bommai Writ petition-
petition- Karnataka H.C.-
H.C. Rejected.

HC-Recourse
HC to floor-
floor-test is neither compulsory –nor pre-
pre-requisite to send a
report-
report- president.

=Madhya Pradesh/Himachal Pradesh /Rajasthan-

/Rajasthan-BJP-emerged
BJP as a majority
party-Manifesto
Manifesto –election –Ram
Ram Mandir

=Dispute-
=Dispute- SC-Masjit
SC may be demolished by Kar Sevak
State govt. gave assurance to protect –structure
structure & law and order.

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On demolition-
demolition proclamation issued under 356-
356
(Loss- of lives, Property)RSS-Banned.

Ministers –involved giving send-

send-off to Kar Sevak-
Sevak-
& welcomed them.

MP; Raj; Himachal Pradesh-

Pradesh- atrocities,
destruction of property-
property- 356-
356- applied by
assuming all administrative powers.

-Write filed in HC’s-

HC’s- withdrawn by SC

Nature of power under Art. 356-

356
-Conditional
Conditional Power-not
Power absolute.

-Power under -356(1)-exceptional

exceptional in nature

-Misuse
Misuse bound to pay havoc-
havoc with the constitutional system.
system

-Not
Not a power –but
but obligation of president-governance
governance –
constitutional-what
constitutional powers?
-Power-not
not promote –party at Center/weapon against another
political party.

J. Ramaswamy –office
office of governor is intended to –ensure
ensure the –
constitutional process-umpire
process umpire,
umpire he-truthful
truthful to oath-159
oath 159-Preseve,
159 Preseve,
Protect and defend/he
defend owes constitutional duty.
duty

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4) Secularism ?
-Basic Structure and if state- supports,
encourages acts-
acts against secularism- it can be
said –not
not working according to the constitution.
constitution

-Mixing
Mixing politics with religion –not allowed –S.
123(3)RPA and Constitution

Art. 356-not
356 be used for political purpose.

Governor should explore-alternative

alternative option of
forming ministry.
*

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Cultural and Educational Rights

29. Protection of interests of minorities.—

minorities.—(1) Any
section of the citizens residing in the territory of
par thereof having a distinct
India or any part
language, script or culture of its own shall have
the right to conserve the same.
same.

(2) No citizen shall be denied admission into any

educational institution maintained by the State or
receiving aid out of State funds on grounds only
of religion, race, caste, language or any of them.
them

30. Right of minorities to establish and administer educational

institutions. — (1) All minorities,
minorities whether based on religion or
language,
languag shall have the right to establish and administer
educational institutions of their choice.

(1A) In making any law providing for the compulsory acquisition

of any property of an educational institution established and
administered by a minority, referred to in clause (1), the State
shall ensure that the amount fixed by or determined under such
law for the acquisition of such property is such as would not
restrict or abrogate the right guaranteed under that clause.

… 44 Amend -1978-
1978 because -19(1) f and 31 right of property
was omitted...

(2) The State shall not, in granting aid to educational institutions,

discriminate against any educational institution on the ground
that it is under the management of a minority,
minority whether based on
religion or language.
language

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Difference – 29(2) and 15 (1):

29-(2) No citizen shall be denied admission into any educational

institution maintained by the State or receiving aid out of State funds on
grounds only of religion, race, caste, language or any of them.
them

15-1) The State shall not discriminate against any citizen on grounds
only of religion, race, caste, sex, place of birth or any of them.

1) Art. 15-All
All citizens-against
citizens state
29(2)- against state or anybody –who denies rights- conferred…

2) Art. 15 –General
General –wrong -discrimination… 29(2)- specific-
specific- particular
species of wrong-denial of admission ..aided…
-Available –all citizens

3) Art. 15-
15-gounds –more -29
29-
29-less ground

State of Madras v. Champakam Dorairajan AIR

1951 SC 226:
Medical & Eng. College-Govt. Fixed-
Fixed-quota-
quota-
proportion –each community…

Held-
Held invalid-Brahmins
Brahmins-
Brahmins more marks-denied-
religion/caste –invalid
invalid-
invalid- against 29(2).
29(2)

State of Bombay v. Bombay Educational Society

AIR 1954 SC 564
-banning admission whose language –not
English-
English- invalid-
invalid- against 29(2)
29(2

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St. Xaviers College v. State of Gujarat AIR 1974 SC 1389:

Petitioners-a Jesuit society –Ahmadabad-running –St.St. Xavier’s college Art. &
Commerce-
Commerce

-Object
Object-
Object higher education –Christian
Christian students.
-Affiliated –Gujarat University-

Gujarat University Act, 1949:

-Selection
Selection –representative of VC
-Power
Power to approve appointment
-Dismissal,
Dismissal, removal, reduction in rank-except
rank except –inquiry..
-Hearing
Hearing-
Hearing-
-Penalty-approval
Penalty of University
-Display
Display-committee
Display

Held::
Held Abridged-right
Abridged to administered..
-Administered means-right to ‘conduct and manage’ affaire
a of the institution..
Autonomy-appointment
Autonomy –

-University –permissible
permissible measures-facilitate
measures facilitate..
facilitate
*

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T.M. A. Pai Foundation v. Kar…

Kar… AIR 2003 SC 355:
Issues:
Issues: administer educational institutions-
institutions- autonomy-
autonomy-
interference by govt. and universities-
universities- unaided
institution?
educational institution?

Appointment: teacher/salary/admission procedure-

procedure-
interference –hampering their progress.

Five questions:
What is extent of control-
control-state?
state
What shall be procedure –admission?
admission
Eligibility-
Eligibility confine to minority students or other
community?
Who is minority-
minority- how to determine?
determine

Whether these rights are available minority only or other

community?

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T.M. A. Pai Foundation v. Kar… AIR 2003 SC 355:

-State/
State/ University-
University- cannot regulate-
regulate- admission
policy –unaided
unaided..minority
unaided

-Choice
Choice to admit-
admit subject to objective & rational
procedure…
procedure… merit + transparent manner

-Admission of non-
non-minority-
minority- 29(2)-non
29(2)
discrimination..

-Regulation
Regulation –appointment –staff-to maintain
academic standard…

Eligibility-
Eligibility confine to minority students or
other community?- (can laid other –subject to
rational criterion)

Who is minority-
minority- how to determine?
determine –(State –
not nation)

Whether these rights are available minority

only or other community? – 29(2) available to
other-community also…

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Mohini Jain v. State Kar…

Kar… 1992-
1992-FR..21
Unni Krishnan, J.P., v. State of A.P. and Others
1993…up 14
-Right of education v. right to administered…
-(PA. Indamdar V. Mah.)

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13. Laws inconsistent with or in derogation of the fundamental rights:

(1) All laws in force in the territory of India immediately before the
commencement of this Constitution, in so far as they are inconsistent
with the provisions of this Part,
Part shall, to the extent of such
inconsistency, be void

(2) The State shall not make any law which takes away or abridges the
rights conferred by this Part and any law made in contravention of
o this
clause shall, to the extent of the contravention, be void

(3) In this article, unless the context otherwise requires law includes any
Ordinance, order, bye law, rule, regulation, notification, custom or
usages having in the territory of India the force of law;
law

laws in force includes laws passed or made by Legislature or other

competent authority in the territory of India before the commencement
of this Constitution and not previously repealed,
repealed notwithstanding that
any such law or any part thereof may not be then in operation either at
all or in particular areas

(4) Nothing in this article shall apply to any amendment of this

Constitution made under Article 368 – 24 Amend 1971
-Golak Nath v. Pun.. 1967 SC 1643

-DOCTRINE OF SEVERABILITY:
A.K. Gopalan v. State of Madras A.I.R. 1950
S.C. 27, and held that the preventive
detention minus section 14 was valid as the
omission of the Section 14 from the Act will
not change the nature and object of the Act
and therefore the rest of the Act will remain
valid and effective.
-history/object-preamble..

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-DOCTRINE OF ECLIPSE:
constitutional- void ab initio:
Post constitutional-
-Art. 372 of the Constitution
- “It
It is over-
over-shadowed by FR & remains dormant
; but it is not dead”
-Bhikaji Narayan v. State of MP-AIR 1955 SC 781
-Non-
Non-citizens

WAIVER- Bashesher Nath v. Income

-DOCTRINE WAIVER-
Tax Commissioner, AIR 1959 S.C. 149.

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