Freedom of Religion PDF

FREEDOM OF RELIGION
Author(s): N. A. Subramanian
Source: Journal of the Indian Law Institute, Vol. 3, No. 3 (July-Sept., 1961), pp. 323-350
Published by: Indian Law Institute
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FREEDOM OF RELIGION*
N. A. SUBRAMANIAN **
" We declare it to be Our Royal will and pleasure that none be

in any wise favoured, none molested or disquieted by reason of
their religious faith or observance ; but that all shall alike enjoy
the equal and impartial protection of the law, and we do strictly
charge and enjoin all those who may be in authority under us,
that they abstain from all interference with the religious belief or
worship of any of our subjects, on pain of our highest displeasure
* * * * *
"The Sta
or the e
" The St
only of
" Subjec
provision
of consc
gate reli
Concept of freedom of religion
There is no subject which leads to more acrimonious
controversies and which stirs up sometimes unnecessary heat as the
subject of religion. Religious freedom is, at the same time2
regarded as being vital in every democratic Constitution. The
freedom in civilized countries at the present day extends not merely to
the holding of particular beliefs but to the absence of belief in religion.
It is possible for courts to take extreme views as to what constitutes
freedom of religion.5 In the Advisory opinion of the Supreme Court
on the Kerala Education Bill Venkatarama Ayyar, J., said : " It is
* Research study conducted for the Indian Law Institute.

** Advocate, Madras High Court ; part-time lecturer in Law, Madras Law
College.
1. Queen Victoria's Proclamation of 1858.
2. The Constitution of India, Article 14.
3. Ibid, Article 15(1).
4. Ibid, Article 25(1).
5. AUadi, Constitution and Fundamental Rights, p. 44.
324 FREEDOM OF RELIGION
well-known that during the Middle Ages, the

Sovereigns were entitled to impose their own r
and those who did not conform to it could be dealt with as traitors. It
was this notion that was responsible during the 16th and 17th centuries
for numerous wars between nations and for civil wars in the Continent
of Europe, and it was only latterly that it came to be recognized that
freedom of religion is not incompatible with good citizenship and
loyalty to the State, and that all progressive societies must respect the
religious beliefs of their minorities. It is this concept that is embodied
in Articles 25, 26, 29 and 30 of the Constitution. Article 25 guarantees
to persons the right freely to profess, practise and propagate religion.
Article 26 recognises the right of religious denominations to establish
religious and charitable institutions. Article 29(1) protects the rights of
sections of citizens to have their own distinct language, script or culture.
Article 30(1) belongs to the same category as Articles 25, 26 and 29,
and confers on minorities, religious or linguistic, the right to establish
and maintain their own educational institutions without any interfer-
ence or hindrance from the State ".6
In this paper the provisions of Articles 25 and 26 will be examined

in the light of decided cases. Since the former Article deals with the
rights of an individual in matters of religion and the latter with the
rights of religious groups, they are in a sense complementary to one
another. But looking at them from another angle and stating it broadly
it may be said that the rights of the individual must be subordinated
to the rights of the religious denomination of which he is a member.
Thus an individual may have a right of worship in a temple but the
institution is maintained not in his interests alone but in the interests
of general public who constitute the particular religious group. If
each individual worshipper were to claim the right to worship iń the
temple in his own way, the institution would have to be closed down.
Moreover, while it may be noted that Article 25 confers ' freedom of
conscience and the right freely to profess, practise and propagate reli-
gion ' on all persons and not merely on citizens, nothing turns on the
rights being conferred on individuals and not on religious groups or
institutions because, as pointed out by the Supreme Court in the Shirur
Mutt case 7 institutions as such cannot practise or propagate religion :
it can be done only by individual persons, and whether these persons
propagate their personal views or the tenets for which the institution
stands is really immaterial. It is the propagation of belief that is pro-
6. In re Kerala Education Bill , A.I.R. 1958 S.C. 956 at 990.

7. Commissioner, Hindu Religious Endowments, Madras v. Laxmindra Thirtha Swamiar ,
A.I.R. 1954 S.C. 282 at 289.
N. A. SUBRAMANIAN 325
tected, no matter whether the propagation take

monastery or in a temple or parlour meeting.
India is a land of many religions and of nume
tutions. The religious foundations known as Deu
are the most numerous and have the largest end
of lands, assignments of public revenue and j
temples, the most important religious found
(Mutts) or monasteries presided over almost inv
Moreover, since in the Hindu system there is no
between religion and charity both being integra
there are countless charitable endowments for p
institutions have, in recent times, quite natur
matter of legislation aiiņed at providing for their
and they have not been slow in reacting to such
invoking the newly conferred fundamental righ
The result has been a spate of cases focussing ju
provisions of Art. 26 dealing with the rights of
and the attention that Art. 25 has so far receive
dental and the full impact of the provisions the
gauged.
What is religion
It would be impossible to work out religious rights without some

definite concept of ' Religion ' But at the same time, as Latham, C. J.,
pointed out in Adelaide Company v. Commonwealth ,8 it would be difficult if
not impossible to devise a definition of religion which would satisfy the
adherents of all the many and various religions which exist in the
world. The United States Supreme Court said : " The term ' religion 9
has reference to one's views of his relations to his Creator and to the
obligations they impose for reverence for His Being and character and
of obedience to His will ".9 Is religion then merely a matter of belief
and opinion ? Our Supreme Court was not prepared to accept such
over-simplification. In the first place, there are in India religions like
Buddhism and Jainism which do not believe in God and hence a
theistic approach would be unsatisfactory. Secondly, Art. 25 of the
Constitution specifically mentions ' religious practices ' and the right
to practise religion ' which would require a much broader concept of
religion than that envisaged by the American Court. The High Court
8. (1943) 67C.L.R. 116 at 123.

9. Davis v. Beason , 133 U.S. 333 at p. 342.
of Australia in construing Section 1 1 6 of the

tion 10 conceived of freedom of religion as pr
of opinion but acts done in pursuance of religi
gion.11 Adopting this view which would obvio
of the Indian Constitution, our Supreme Court
case : " A religion undoubtedly has its basis in
doctrines which are regarded by those who pro
ducive to their spiritual well-being, but it wou
that religion is nothing else but a doctrine or
not only lay down a code of ethical rules for i
might prescribe rituals and observances, cerem
ship which are regarded as integral parts of r
and observances might extend even to matters
Religious practices - The qualitative test
If, as held by the Supreme Court in the Shirur Mutt case, religion
includes also acts done in pursuance of religion, does it mean that every
human and mundane activity can claim protection under the guise of
religion ? Of course not and this was the basis of the Bombay view.1'2*
It would, however, appear that when first expounding the scope of
Art. 25 in the Shirur Mutt case the Supreme Court was not very mindful
of this difficulty, for Mukherjea, J., said : 13 " We now copie to Art. 25
10. ' The Commonwealth shall not make any law
exercise of any religion'.

11. Adelaide Co. v. The Commonwealth 67 C.L.R. 116.
12. A.I.R. 1954 S.C. 282 at 290 - The Bombay view of religion : In cases decided
by the Bombay High Court prior to the above pronouncement of the
Supreme Court, Chagla, C. J., accepted the American view of religion as
exemplified in Davis v. Beason, (133 U.S. 334) {supra) and held : "A sharp
distinction must be drawn between religious faith and belief and religious
practices. What the State protects is religious faith and belief.0 The State
of Bombay v. Narasu Appa, (A.I.R. 1952 Bom. 84). In upholding the validity
of the Bombay Prevention of Excommunication Act, 1949, the High Court
said: ť' Religion is a matter of a man's faith and belief. It is a matter
concerning a man's contact with his Creator. It has nothing whatever to
do with the manner in which a practice is accepted or adopted as forming
part of a particular religion or faith
is not part of religious faith and belief. At best it c

practice." This view was followed by the Calcutta
Alamv. Commr. of Police, (A.I.R. 1956 Cal. 9.), wherei
to use a loudspeaker in a Mosque for calling the fa
negatived.
12a. See note 12, supra.
13. A.I.R. 1954 S.C. 282 at 289.
which, as its language indicates, secures to every

order, health and morality, a freedom not on
ous belief as may be approved of by his judg
also to exhibit his belief in such outward acts
propagate or disseminate his ideas for the ed
in the Bombay Trusts case which came on
High Court, the Supreme Court, evidently r
Art. 25 had been stated by it rather too broad
formulated it differently thus: "Article
person... freedom of conscience ... Thus ... ev
mental right under our Constitution not mer
gious belief as may be approved of by his ju
to exhibit his belief and ideas in such overt acts a
by his religion 14 Hence the Constitution
which an individual may subjectively cons
those acts which are either " enjoined or san
would mean such acts which are either obligat
religion. Four years later, in the Cow Slaugh
further refinement. It is not enough if the
religion ; it must be " enjoined " by religion
dity of certain state laws imposing a total ba
was impugned by certain Muslims on the gr
religious right to make sacrifices of cows on
pointed out that the sacrifice established by
" a goat for one person or a cow or camel for
very fact of an option ran counter to the not
The law thus evolved was finally formulated
thus : " Freedom of religion is not confined
but extends to essential religious practices as
the word "essential".
In considering the evolution of the scope of Article 25(1) by judi-

cial interpretation it should be borne in mind that in the Shirur Mutt
case17 the Supreme Court was directly concerned with the interpretation
of the words " matter of religion " in Article 26(b) and the scope of
Article 25(1) was not directly in issue. Although, as pointed out above,
the scope of Article 25(1) had been stated somewhat broadly in the first
instance, the Court in interpreting the expression " matter of religion "
took care to limit it to " rituals and observances, ceremonies and modes
14. Rutilai v. State of Bombay, A.I.R. 1954 S.G. 388, 391. Emphasis added.
15. Quareshi v. State of Bihar , A.I.R. 1958 S.G. 731.
16. Sarupsingh v. State of Punjab , A.I.R. 1959 S.C. 860.
of worship which are regarded as integral part

constituted the essential part of a religion was
tained with reference to the doctrines of that
the Court held that " matter of religion " in A
same as " religious practices " in Article 25(2
that the qualitative test of essentiality should ha
way into the Court's construction of Article 25(
Propagation of religion
Article 25(1) is modelled on Article 44 of the Constitution of the

Irish Free State which provides : " Freedom of conscience and the free
profession and practice of religion are, subject to public order and
morality, guaranteed to every citizen." Article 25(1) however enume-
rates the right to propagate religion which is not found in the Irish
Constitution. To staunch Hindus the inclusion of a right to propagate
religion was obnoxious and an attempt was made in the Constituent
Assembly to delete the word " propagate ". But the attempt was
unsuccessful because certain interests were very zealous about it and it
had been agreed to be included in the Minority Report. Accord-
ing to Sir Alladi it was probably unnecessary to have included
the expression " Propagate " in Article 25(1) in view of the fact that
freedom of expression is already guaranteed under Article 19 but the
expression was inserted by way of abundant caution. 18 In America
the propagation of religion has been held to include the right of indi-
viduals to dedicate property by way of trust to the purpose of sustain-
ing and propagating definite religious doctrines wherefore it is the duty
of courts to see that the property so dedicated is not diverted from such
trust 19. Our Supreme Court has reached the same conclusion although
not based on Article 25(1) for in Ratilal v. State of Bombay ,20 the Court
said : " A religious sect or denomination has a guaranteed right to
manage its own affairs in matters of religion and this includes the right
to spend the trust property or its income for the religious purposes and
objects indicated by the founder of the trust or established by usage
obtaining in a particular institution. To divert the trust property or
funds for other purposes while the original objects can be still carried
out is an infringement of Article 26(b)
17. A.I.R. 1954 S.G. 282 at 290.
18. Alladi, Constitution and Fundamental Rights , p. 45«

19. Watson v. Jones , 20 L. Ed. 666.
20. A.I.R. 1954 S.C. 388, 394.
The police power
The rights conferred by article 25(1) are by no means absolute.

In the first place, they are subject to " public order, morality and
health " - what is called in American law the Police Power of the
State. The only case in which it was invoked is Tej Raj v.
State of Madhya Bharat. 21 The executive officers of the State Govern-
ment, claiming and asserting a right of ownership on behalf of the
State on what was in reality a public Jain temple, had installed a Hindu
idol in that temple and had prohibited members of the Jain community
from entering and worshipping except on condition of Hindus being
allowed to worship the newly installed idol. The Madhya Pradesh
High Court held that under Article 25(1) the members of the Jain
community had the right to enter and worship in their temple according
to the principles of their own religion to which the presence of a Hindu
idol and its worship by Hindus within the temple precincts was repug-
nant, and that the action of the State Government could not be
defended on the ground of public order, morality or health. The
Court added sardonically " a public temple cannot be made a museum
for an exhibition of deities and idols of all religions."
The rights given by Article 25(1) are also made subject to the other
provisions of Part III of the Constitution.22 In the Temple Entry
case23 the Supreme Court mentioned article 25(2) 24 as one such provi-
sion ; but since Article 25(2) itself contains the words " Nothing in
this article
vigore to have overriding effect over clause

invoking the general qualifying phrase i
clauses (2) to (6) of article 19 have been cons
Secular activities
Clause (2) of Article 25 contains further limitations o

rights conferred by clause (1). Sub-clause (a) reserves the
the State to " regulate or restrict any economic, financia
21. A.I.R. 1958 M.P. 115.
22. Examples of such other provisions would be Articles 15(2) (b), 17, 19(1) (e)
and (g), 23(2), 26, 28(1) and (3).
23. A.I.R. 1958 S.G. 255.
24. Article 25(2) : Nothing in this article shall affect the operation of any exist-
ing 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.
or other secular activity which may be as

practices." As interpreted by the Supreme
religious practices as such cannot be regulated
but only secular activities which may be as
practices. In the Shirur Mutt case an attempt
field of permissive State interference by the ar
which involve the expenditure of funds or the
agency are ipso facto secular activities within the
The Court had no hesitation in rejecting th
tenets of any religious sect of the Hindus pre
food should be given to the idol at particular
periodical ceremonies should be performed in
period of the year or that there should be dai
or oblations to the sacred fire, all these woul
religion
whether a particular activity is a religious pra

the fundamental rights is to be decided with
of that religion by applying the qualitative te
it is in fact a religious practice, it cannot b
merely because it involves expenditure of mon
able commodities. Contrawise, if a particular a
practice it cannot come within the protective
reason of its being associated with religious p
It may be noted that the sub-clause uses bot
late" and "restrict". The former expression is
can constitutional law while the latter has be
Indian Constitution.25 Whether here the powe
the power to prohibit has not yet been decided
In construing the scope of "restriction' a dist
drawn between ' regulation ' and ' restriction
of both the expressions in juxtaposition in A
from the Constituent Assembly Debates that
' prohibit ' in Article 25(2)(a) was moved but
There has so far been no occasion to inv
under this sub-clause nor does it seem likely
the future. The reasons are two-fold. In t
25. Vide " reasonable restrictions " in Article 19.
26. In the Cow Slaughter case (A.I. R. 1958 S.G. 731) The question was left
open. Cf. Narendra Kumar v. Union of India , A.I.R. 1960 S.G. 430, where
the Court held that the word 'restriction ' in Article 19 would include
prohibition A.I.R. 1958 S.C. 731.
27. Constituent Assembly Debates, Vol. VII, Part 20 at p. 826-'27.
N. A SUBRAMANIAN 331
shown hereinafter, the "social welfare and reform" clause in

Article 25(2)(b) as construed by the courts is wide enough to justify
most kinds of legislative interference with religious practices.
Secondly, it is now settled that the protection of Article 25(1) extends
only to "religious practices " as such and all other activities are out-
side the realm of fundamental rights. It was, however, Article 25(2)(a)
more than anything else that weighed with the Supreme Court in
formulating a working definition of religion which would take in only
essential religious practices. It may therefore be fairly inferred that
Article 25(2)(a) has discharged its function by enabling the judiciary to
arrive at a proper perspective of the scope of Article 25(1) and that it
will be allowed to rest there.
The social welfare and reform clause
The provisions of sub-clause (b) of Article 25(2)

be studied in two parts are extremely enigmatic.
The first part of the sub-clause reserves the right o
provide for " social welfare and reform ". What is the
tion of the expressions " social welfare " and " socia
would appear that in the context of religious freedom
" social " must be construed in antithesis to " religious
" social " will be a word of limitation of State power :
power to promote or reform social relations as dist
religious practices, and the State will have no power to
religious practices as such. But that is not the sense in whic
Court has construed the provision. In the Shirur Mutt
said : " [T]here is a further right given to the State b
under which the State can legislate for social welfare an
though by so doing it might interfere with religious practice
purporting to be made as a measure of social reform o
gates essential religious practices, will the courts go beh
tion of the Legislature and consider the true nature of
viz., whether or not it is a measure of social reform ? That
will not undertake this task has been made clear by th
the Allahabad High Courts. In State of Bombay v. Naras
Bombay High Court said : " It is for the Legislature to
laws to make in order to advance the welfare of the State. The Court
cannot sit in judgment on that decision." The Allahabad High Court
went a step further in Ram Prasad v. State of U. P.,30 : " If the Legis-
lature as the law-making authority regards a particular measure as a
28. A I R. 1954 S.C. 282. 290. Emphasis added.
29. A.I.R. 1952 Bom. 84.
30. A.I.R. 1954 All. 411 at 414.
measure of social reform, the Courts should n

be regarded as a measure of social reform." Fr
namely, (i) religious practices can be abrogate
measure of social reform and (ii) the Legislat
what is social reform, the inevitable conclusion i
are subject to regulation by law. In other wo
religion conferred as a fundamental right by
takingly elaborated by the Supreme Court
position can be retrieved only if adequate str
on the social quality of any legislative reform
" essential religious practices " will be rescue
social reform and that the Supreme Court
scope of Article 25(2)(b). Its dictum in the Shi
may fairly be regarded as obiter.
The second part of Article 25 (2) (b) has ca
and even confusion. It saves the power of
providing for " the throwing open of Hin
of a public character to all classes and section
of such wide amplitude has been employ
wonder if all that is included was really inte
be analysed thus: (1) Hindu religious instituti
(2) may be thrown open (3) to all classes a
(4) notwithstanding Article 25(1). As to t
religious institutions of a public character : f
to Art. 25 the expression " Hindu " includes a
Hence Hindu, Sikh, Jain and Buddhist reli
within the scope of the provision. Secondly,
will include not merely temples or vihars
patasolas and the like. Thirdly, does th
institutions of a public character " mean onl
dedicated to the use of the members belongin
as a whole, or does it also include what are
institutions such for example as a temple end
the members of a particular sect or sub-sect a
entire religious group as a whole ? The point
in the Madras Temple Entry case.31 The Supreme
the language of the provision to construe it
including within its scope even purely denomi
It will be seen from the above that on t
possible to construe the provision so widely a
31. Venkataramana Devaru v. State of Mysore , A.I.R.
to make a law throwing open a Jain temple to all Hindus,

a Hindu denominational Mutt to all Hindus, Sikhs, Buddhists
and Jains, a Sikh Gu rud wara to Buddhists and so on. And so the
question arises : was all this intended ? From the Constituent Assembly
Debates, 32 it is seen that as originally drafted the words used
were " for throwing open Hindu religious institutions of a public
character to any class or section of Hindus. " This obviously had
reference to what used to be known as the Temple Entry Movement
which was launched in order to secure admission for Harijans (Hindu
out-castes) into temples which were open only to caste-Hindus. An
amendment was however moved by a private member to substitute
the words u all classes and sections " for the words " any class or
section" and the amendment was accepted. The mover of the
amendment said : " The clause as it stands is restricted in its scope,
and the object of my amendment is to secure the benefit in a wider
way and to make it applicable to all classes and sections. Though we
are not able to make a sweeping reform or a more comprehensive
reform in this direction, I feel that no distinction of any kind should
be made between one class of Hindus and another. Now with regard
to the Hindu religious institutions of a public character, we are all
aware that there are various classes of these institutions such as temples,
religious maths , and educational institutions or patasalas conducted by
these institutions or are attached to these institutions. So far as
temples are concerned, I am sure that all of us are aware that almost
all of the Provinces including some States have already passed law
throwing open temples to all classes and sections of Hindus. But
am equally sure that distinction does still exist in regard to the other forms
religious institutions such as patasalas , educational institutions and others
managed or conducted by these religious institutions
is to enlarge the scope of this clause and inc

and sections of Hindus
between one class and another class of Hi

Court's interpretation of the scope of th
with the intention of the Constitution-m
to be seen how the Court will interpre
" In sub-clause (b) of clause (2), the ref
construed as including a reference to pers
or Buddhist religion, and the reference to
shall be construed accordingly. " Two
32. Vol. VII, Part 20, pp. 828-29.
33. Cited above.
broadly, this may be taken to mean that insti

of the four specified religions (Hindu, Sikh,
be indiscriminately thrown open to the votar
It can be given a narrow interpretation accord
belonging to any of the four religions may be
professing that particular religion ; but this
the four religions has institutions to which so
admitted and other classes or sections of t
access.
It is difficult to understand why the provision em

throwing open of religious institutions has been insert
which deals with personal or individual rights. Articl
with the rights of religious institutions would app
appropriate place. This defect in drafting had to b
process of judicial interpretation in the Temple En
Madras Temple Entry Authorisation Act authorised p
to the excluded classes to enter and worship in any Hin
term " Hindu temple " being defined as " a place whic
to or for the benefit of the Hindu community or any
as a place of public religious worship. " The truste
Venkataramana Temple, which was a denomination
belonging to the Gowda Saraswath Brahmin commu
claimed the right conferred by Article 26(b) to ex
temple all other Hindu communities and impugned
the Madras legislation as contravening Article 26(b
guaranteed to religious denominations autonomy in ma
and undoubtedly the impugned law infringed that rig
not all. The law had been enacted in pursuance of
which made specific provision in this behalf. To
between Article 25(2)(b) and Article 26(b) the Court was invited to
construe the former provision as confined to the throwing open of
religious institutions dedicated to the Hindu public in general and not
denominational public temples. However attractive the % suggestion
was, the Court declined to read into Article 25(2) (b) words of limitation
which were not there, and held that even denominational public
institutions were within that clause. There being no way of avoiding
an apparent conflict between two provisions in the Constitution, the
Court applied the rule of harmonious construction and held that
Article 26(b) must be read subject to Article 25(2)(b), that is to say, of
the denominational rights conferred by Article 26(b), as regards one
34. A.I.R. 1958 SC. 255.
particular aspect of them, viz.> entry into tem

rights declared under Article 25(2) (b) should
the Court interpreted Article 25(2) (b) as if it wer
and not in Article 25.
Religious practices and social reform

The validity of legislation compelling monogamy among Hindus
has been challenged again and again but without success. In Bombay
and Madras the then existing State legislation was impugned. The
Bombay High Court in State of Bombay v. Nar asa Appu , 30 rested its
decision on the grounds first, that Article 25(1) did not protect religious
practices and secondly that monogamy legislation was a measure of
social reform permitted by article 25(2) (b). The Madras High Court
in Srinivasa Aiyar v. Saraswathy Ammal , 36 was of the view that marrying
a second wife with a view to beget a son " even if the belief that he
would procure a son by a second marriage was well founded " was not
so much a matter of religion as of sentiment because the Hindu law
recognised the right to adopt a son who would have the same religious
efficacy as a natural-born son ; and in any case the impugned law was
saved by article 25(2)(b)ē When Parliament enacted the Hindu
Marriage Act, 1956, its provisions prohibiting bigamy were challenged
before the Allahabad and Manipur High Courts. By then the Supreme
Court had already pronounced that the right to practise religion under
article 25(1) embraced religious practices as well but only those
practices which were enjoined by religion. Hence the Allahabad High
Court held that in view of the existence of an alternative mode of
obtaining a son by adoption, a second marriage was not an obligatory
religious practice within the protection of Article 25(1). 37 Before the
Manipur High Court a desperate but interesting attempt was made to
convince the Court that the anti-bigamy legislation far from promoting
social welfare was anti-social in reality. It was argued at the bar that
there was a preponderance of females over the male population in
Manipur and so if men were restricted to single wives, the excess
female population would be prevented from satisfying their biological
needs in lawful wedlock and thus driven to immorality. 38
In a mosque situate in a crowded locality the system of calling
the Azan 39 through an electrical loudspeaker was introduced but on
35. A.I.R. 1952 Bom. 84.
36. A.I.R. 1952 Mad. 193.
37. Ram Prasad v. State of U.P., A.I.R. 1957 All. 411.
38. Singh v. Ongbi, A.I.R. 1959 Manipur 20.
39. Calling the faithful to prayer five times a day.
complaints from the residents of the locality

drew permission to operate the loudspeaker.
it was contended that there was a violation of Article 25 because the
Azan could not be heard by the faithful unless magnified mechanically.
Following the Bombay view of Article 25(1), Sinha, J., of the Calcutta
High Court negatived the contention saying that calling the Azan
through a loudspeaker was certainly not required by the religion
and in any case there was no right to mere religious practices. He also
said : " What is distasteful and abhorrent in the house of man is
singularly inappropriate and even irreverent when used in the House
of God. Prayer is intended to be a silent communion with the
Creator. It does not call for a tumultous prelude or a noisy
accompaniment." 40
In all the above cases the actual decision irrespective of its ratio
was unexceptionable in the light of the law relating to the scope of
Article 25 as laid down by the Supreme Court. But the decision of the
Bombay High Court in the Excommunication case 41 stands on a
different footing and is dealt with below under article 26 of the
Constitution.
Religious denominations
Article 26 defines the rights of religious denominations. The scope
of the expression " every religious denomination or any section there-
of" was considered by the Supreme Court in the Shirur Mult* 2 case
wherein the question arose whether a math could claim the protection
of Article 26. Adopting the meaning given to the word denomination
in the Oxford Dictionary as "a collection of individuals classed
together under the same name : a religious sect or body having a
common faith and organisation and designated by a distinctive name
the Court said : " It is well-known that the practice of setting up
maths was started by Shri Sankaracharya and was followed by various
teachers then. After Sankara came a galaxy of religious teachers and
philosophers who founded the different sects and sub-sects of Hindu
religion that we find in India at the present day. Each one of such
sects or sub-sects can certainly be called a religious denomination as it
is designated by a distinctive name - in many cases it is the name of
the founder - and has a common faith and spiritual organisation. The
followers of Ramanuja who are known by the name of Sri Vaishnabs
undoubtedly constitute a religious denomination ; and so do the
followers of Madhwacharya and other religious teachers It was
40. Masud Alam v. Commr. of Police, A I.R. 1956 Gal. 9 at 10.
41. Saifuddin v. Tyabji , A. I.R. 1953 Bom. 183.
42. A.I.R. 1954 S.C. 282.
held that a Math would come within Article 26 as a " section of

religious denomination " if not as a religious denomination.
Two questions arise in this connection. First, does "religious
denomination " include the Hindu religion as a whole besides its sects
and sub-sects ? Obviously it must ; otherwise absurd results will follow.
Then religious denomination would mean " religion " and " section
thereof" would mean the sects and sub-sects. The difficulty in such a
construction is the use of both expressions "religion" and "religious
denomination" in juxtaposition in Article 27. In the Bombay Trusts
case the Supreme Court treated the Jain and the Parsi religions as
coming within the protection of article 26. The position, therefore,
appears to be correctly stated by the Madras High Court in Laxmindra
Theerth Swamiar v. The Commissioner of Hindu Religious Endowments
Madras 43 : " There being several religions in India
wrong to take Hinduism and the members of th

ing a religious denomination in a larger sense o
in a limited sense. Advaita , Dwaita , Visishtadwaita
another classification and the members of each f
members of one denomination
Hindu religion based upon a system of philosoph

a group of members may be treated as a denomin
any section of that denomination and a divis
territorial or sectional basis may be treated as a s
Secondly, according to Sir Alladi, 44 in the con
mentioned in Article 26, a religious denomina
mean an indefinite community belonging to a
persuation or holding particular religious belief ; t
tion must be in a position to own and acquir
convicted of breach of trust in proper procee
religious denomination contemplated must necessa
or quasi-corporate existence. The point is not
importance because in practice the religious in
maintained by religious denominations are tre
themselves endowed with the rights under Articl
has been dedicated to and for the benefit of a par
the temple itself (as a foundation) is regarded as
Article 26 although in strict theory the Constituti
on the denomination to which the temple belong
43. A.I.R. 1952 Mad. 613, 639.
44. Alladi, Constitution and Fundamental Rights , p. 47.
The rights under Article 26 are subject to

and health. Since Article 25 is subject to t
Part III, the rights under article 25 are also su
Article 26 subject to the reservation necessitat
Supreme Court in the Temple Entry case 45 alread
Clause (a) of Art. 26 confers the right to e
religious and charitable institutions. In view o
between religion and charity and the conseque
ing the two, charitable institutions are includ
otherwise deals only with religion. The right
educational institutions is dealt with in Art. 3
Autonomy in matters of religion
Under clause (b) every religious denomination or a section thereof
shall have the right to manage its own affairs in matters of religion.
In the Shirur Mutt case the Supreme Court interpreted the phrase
" matters of religion " as meaning " acts done in pursuance of reli-
gion." A religious denomination or organisation enjoys complete
autonomy in the matter of deciding as to what rites and ceremonies are
essential according to the tenets of the religion they hold, and no
outside authority has any jurisdiction to interfere with their decision
in such matters.46 Hence the denominational right under Art. 26(b)
corresponds to the individual right to " practice religion" under
Art. 25(1) the scope of which has already been considered above.
Right of admission
One of the important rights asserted on behalf of religious institu-
tions has been in relation to admission into such institutions. In the
Temple Entry 47 case the Supreme Court said that under Art. 26(b) the
Gowda Saraswath Brahmin community, which was a religious denomi-
nation, had the right to exclude all persons not belonging to that
community from entering and worshipping in a temple dedicated and
belonging to it. Under the ceremonial law pertaining to Hindu tem-
ples, who were entitled to enter into them for worship, and where
they were entitled to stand and worship, and how the worship was to be
conducted were all " matters of religion Nevertheless, a law enacted
in pursuance of Art. 25(2) (b) might, according to the decision in the
Temple Entry case, interfere with this right to a limited extent.
Another aspect of the same right assumed importance under the
laws enacted by the State legislature providing for the superintendence
45. Ve nkataramana Devaru v. State of Mysore, A.I.R. 1958 S.C. 255.

46. A.I.R. 1954 S C. 282, 291.
47. A.I.R. 1958 S.C. 255.
of the management of religious and charitable

of the Madras Hindu Religious and Charitable
empowered the authorities created by the statu
by them to enter the premises of any Hindu
place of worship for the purpose of exercising
The Supreme Court struck it down as violat
no such thing as an unregulated and unrestric
public temple or religious institution for perso
with the spiritual functions thereof. It is a tra
ally observed not to allow access to any outsid
sacred parts of a temple as for example the pl
located. There are also fixed hours of worsh
when no disturbance by any member of the p
tion 37 of the Bombay Public Trusts Act w
because it expressly provided that the officers
give reasonable advance notice of their intend
and that they shall have due regard to the relig
of the particular institution.49 The Madras leg
of the Madras Religious and Charitable End
struck down, made a half-hearted attempt to r
of an amendment providing for notice of entr
able but the Madras High Court in Sudhindra v.
to countenance it.
The facts were different in Narayandoss v. Nelladri .51 The validity

of section 5(3) of the Commissions of Enquiry Act, 1952, was chal-
lenged as violating Art. 26(b) in so far as it authorised searches and
seizures in religious institutions. Under the section the Commission
constituted under the Act or any Gazetted Officer authorised by it had
power to enter any place or building where the Commission had reason
to believe that any books of account or other documents relating to the
subject-matter of the enquiry may be found and to seize such books or
documents subject to the provisions of sections 102 and 103 of the Code
of Criminal Procedure. The Court said that the power of entry was
hedged by several restrictions and it could hardly ever happen that
books of account and documents would be kept in the sanctum sanc-
torum.
Article 26(b) and excommunication ^

Does Art. 26(b) protect the power to excommunicate a
member from a religious sect or sub-sect ? The negative answer
48. A.I.R. 1954 S.C. 282, 292.
49. Ratilal v. State of Bombay , A.I R. 1954 S.C. 388.
50. A.I.R. 1956 Mad. 491.
51. A.I.R. 1959 Andh. Pra. 148.
given by the Bombay High Court in the Ex

under the Bombay Prevention of Excomm
is not unexceptionable. Excommunication was defined in the
Bombay Act as the expulsion of a person from the community of
which he is a member depriving him of legally enforceable rights and
privileges including , inter alia , the right to worship in any religious place.
Section 3 declares that no excommunication shall be valid and section 4
penalises any person who does any act amounting to or in furtherance
of excommunication. The appellants before the Bombay High Court
had been excommunicated by the Head Priest of the Daudi Bohara
community of Mussalmans and they sought a declaration that the
orders of excommunication were void under the Bombay statute. On
behalf of the Head Priest it was contended that the Bombay statute
itself was void as contravening Arts. 25 and 26. As to Art. 25, the
Court held that the protection of that Article did not extend to ex-
communication which was at best a mere religious practice, and that in
any case, since the impugned law was a measure of social reform its
validity was saved by Art. 25 (2)(b). As to Art. 26(b) also the Court
said that excommunication was not a matter of religion but only a
matter of religious practice. In the first place, as already noted under
Art. 25, the Bombay view that religious practices are outside the scope
of the Fundamental Rights is no longer good law but the Court's con-
clusion that the law was saved by Art. 25(2) (b) must stand even if ex-
communication is an essential religious practice because of the prevail-
ing view that social legislation can override even the protected religious
practices. But the position under Art. 26(b) is entirely different. If
excommunication is a "matter of religion ", no law can interfere with
it save with reference to public order, health or morality. In Hasanal
v. Mansoorali ,53 the Judicial Committee of the Privy Council con-
sidered the power of excommunication of the Head of the Daudi Bohara
community (that is, the very community figuring in the instant case),
and said : "The Dai is a religious leader as well as being trustee of the
property of the community and in India exclusion from caste is well
known... [N]o instance has been cited where excommunicated persons
freely exercised their religious rights.... Excommunication, in their
Lordships' view, if justified, necessarily involves exclusion from the
exercise of religious rights in places under the trusteeship of the head
of the community in which religious exercises are performed." Hence
52 Saifuddin v Tyahji , A.I.R. 1953 Bom 183.

53. A.I.R. 1948 P.C. 66, 73.
the right to excommunicate would come with

ing to the Supreme Court decision in the Tem
is subservient to the power given by Art. 25
can the Bombay statute, at least that part of
right to worship in any religious place, be fai
of social reform ? If the ratio of the Suprem
Temple Entry case is pushed to its logical ex
given by Art. 26 would be subordinate to soc
legislation which is left wholly to legislative d
of Art. 26 could be reduced to vanishing poin
such were the intention, the Constitution-makers could have best
expressed it by saying that the rights under Arts. 25 and 26 are subject
to regulation by law.
Administration of religious institutions
The Gurudwara case raised an interesting question. A temporary

amendment had been made to the Punjab Sikh Gurudwaras Act of
1925 reconstituting the Gurudwara Board (constituted to administer
Gurudwaras) so as to include a certain number of Sikh members elected
by a Sikh electoral college which in its turn was to be elected by an
electorate consisting of both Sikhs and non-Sikhs. The Supreme Court
said : " Petitioners take the stand that a direct election of the mem-
bers of the Board by the entire Sikh community in the management
of the Gurudwara is a matter of Sikh religion and therefore part of the
right under Art. 26(b). Such a stand is not correct or justified by
Art. 26 nor has any authoritative text been placed before us to show
that a direct election by the entire Sikh community in the management
of Gurudwaras is part of the Sikh religion... However great our res-
pect may be for the democratic principle of direct election... we did
not think that the principle of direct election on universal denomina-
tional suffrage can be raised to the pedestal of religion within the
meaning of Art. 26(b) ... to treat tnese as matters of religion is
tantamount to confusing religion with current politics." This aspect
has received further consideration under Art. 26(d).
Sanctity of trust funds
It is an accepted principle of law that property dedicated

by way of trust for specified purposes must be used in furtherance
thereof. In the United States the right to propagate religion
has been held to include the right to endow property for the
purpose of sustaining or propagating definite religious doctrines and to
54. Sarup Singh v. State of Punjab, A.I.R. 1959 Ö.C. ttöU.
impose a duty on the courts to see that such

from such trust.55 Our Supreme Court has en
ciple on the basis of Article 26(b): "A religiou
has the undoubted right guaranteed by the Co
own affairs in matters of religion and this inc
the trust property or its income for the relig
indicated by the founder of the trust or establ
in a particular institution. To divert the tr
[ for other purposes ]
can still be carried out [is an infringement of Art

qualifying words " while the original objects can s
are important because the Cypres doctrine of Englis
the Indian legal system. When particular purpose
created fails or by reason of certain circumstances
carried into effect either in whole or in part, or wher
left after exhausting the purposes specified by th
would not, when there is a general charitable intent
settlor, allow the trust to fail but would execute it cyp
in some way as nearly as possible to that which the
intended. Hence the provisions of the Bihar Hin
Act, 1951, which empowered the Board of Religious
thereunder to determine the objects to which the f
trust should be applied if the original object is vag
has ceased to exist or has become impossible of achie
statutory enactment of the cypres doctrine and un
the other hand, the Bombay Public Trusts Act, 195
the limits of the cypres rule. It enabled the diversi
objects other than those intended by the donors if
sioner and the Court were of the opinion that carry
objects was "not expedient, practicable, desirable
the Supreme Court struck down the provision as violat
In Ram Chandra v. State of Orissa ,59 the Court dec
Sri Jagannath Temple Act, 1955, ultra vires bec
surplus funds of the temple being utilised for the
maintenance of any leper asylum, poor house, o
other institution. The Court said: "the purpose [
is undoubledly charitable but it has no connection
55. Watson v. Jones , 20 L. Ed. 666.

56. Ratilal Gandhi v. State of Bombay, [1954] S.G.R. 1055, 1
57. Dwarikadasji v. State of Bihar , A.I.R. 1957 Pat. 615.
58. A.I.R. 1954 S.C. 388 at 394.
59. A.LR. 1959 Orissa^.
the [Temple] Fund cannot be utilised for m

leper asylum, orphanage, etc., to which p
eligible for admission."60
Property rights of religious denominations
Clauses (c) and (d) of Article 26 define the property rights of

religious denominations. Since these rights have been agitated mostly
on behalf of certain Hindu religious institutions which exhibit certain
characteristics which are peculiar to them, it is necessary to consider
briefly the nature and character of these institutions. Temples and
mutts y the two principal religious institutions of the Hindus exhibit
certain characteristics which are peculiar to them. It is necessary to
consider briefly the nature and character of these institutions. A temple
(also known as Debutter ) is an endowment in favour of a Hindu idol or
deity. A Mutt is an endowment for the benefit of certain classes of
ascetics belonging to particular sects or congregations.
When property is given absolutely by a pious Hindu for worship
of an idol, the property vests in the idol itself as a juristic person. But
in the nature of things the possession and management of the property
must be entrusted to some human agency.61 He holds the debutter
property for carrying into effect the pious purposes that are symbolised
in the deity, and he is bound to carry out the directions given by the
founder in relation to the worship of the idol and the management of
its property. Thus the .duties of a Shebait are both spiritual and
temporal. 62 In almost every case he is given the right to a part of the
usufruct, the mode of enjoyment and the amount of the usufruct
depending on custom and usage. Thus he enjoys some sort of right or
60. Ibid, at p. 16.

61. This human ministrant is known as Shebait , Dharmakarta, Panchayatdar or
0 or alan.
62. It is his duty to take the idol in his custody and to see that it is washed and
fed and clothed and tended properly and that due provision for worship is
made. As manager of the debutter estate his position is very different from
that of a trustee in English law. First, the property is not vested in him as
in a trustee. In view, however, of the obligations and duties resting on
him, he is answerable as a trustee for maladministration. Secondly, he has
to some extent the rights of a limited owner in the endowed property. He
has power to alienate the property for justifying legal necessity or benefit to
the deity and has certain limited powers of creating derivative tenures.
Thirdly, on the basis of usage or customs he may be entitled to a share of
the offerings given to the deity by worshippers and even to the surplus that
remains out of the income from the debutter property after meeting the
expenses oí the deity.
interest in the endowed property which has

teristics of a property right. Hence in the c
both the elements of office and property, of d
are mixed up and blended together, and nei
be detached from the other.
A mutt connotes a monastic institution presided over by a superior

and established for the use and benefit of ascetics belonging to a parti-
cular religious order who generally are disciples or co-disciples of the
superior.63 If pious persons endow the fraternity with property
which vests in the preceptor for the time being and a home is created
for the brotherhood, a mutt would be constituted. The primary purpose
of a mutt is to encourage and foster spiritual learning by maintenance
of a competent line of teachers who impart religious instruction to the
disciples and followers of the mutt and try to strengthen the doctrines
of the particular school or order of which they profess to be adherents.
Being of the nature of a foundation in Roman Law, the endowed pro-
perty vests in the mutt itself. A mutt like an idol is a juridical person
and is capable of acquiring, holding and vindicating legal rights through
the medium of some human agency which is ordinarily the agency of the
Mohunt or superior. There cannot be a mutt in the legal sense without
a Mohunt or superior (also known as Matadipathy) . All matters
relating to the administration of the mutt are also intimately connected
with the rights and duties of the Mohunt. The property does not
vest in the Mohunt but the right to management and possession of the
property belongs to him. Though not a trustee in the strict sense he is a
trustee in the general sense occupying a fiduciary position in respect
to the endowment and having obligations of certain kinds to discharge.
He holds the mutt property for certain religious and charitable purposes
which are laid down by the founder or sanctioned by usage. His duties
include the upkeep of the mutty the continuance of its religious rites and
festivals and the performance of ceremonies appropriate to the parti-
cular religious order to which the institution belongs. He has to support
his disciples and other persons attached to the mutt and also entertain
ascetics of the same religious order if they come to stay in the mutt for
a short period. There are charities of various types which are appur-
63. A mutt , like a debutter , owes its existence to benefactions of grants of pro-
perty made by pious benefactors. A pious ascetic gathers round him a
number of disciples wHom he initiates into the mysteries or tenets of his
order. Such of his disciples as intend to become ascetics renounce wordly
connections and affiliate themselves to the spiritual teacher so that a spiri-
tual fraternity would eventually grow up.
tenant to a monastic institution and these have to be maintained. In

addition the Mohunt has to maintain himself and the dignity of his own
office in accordance with the usages of the mutt. All these are legiti-
mate charges on the income from the endowed property. He has larger
discretion regarding expenditure of the income of the endowed pro-
perties than a Shebait. Subject to certain obligations and duties
governed by custom and usage, the Mohunťs discretion is almost
unfettered, and unless there is absence of good faith the discretion of
the Mohunt cannot be interfered with or reviewed by the courts. The
Mohunt has wide discretion in the matter of dealing with the surplus of
the income which remains after meeting the expenses of the above
mentioned specific purposes of the mutt. He is not bound to save the
surplus or invest it in a particular way. He cannot spend it on his
personal use unconnected with the dignity of his office but has a wide
discretion in employing the funds in furthering the general objects of
the institution. If the objects on which the money is spent relate to
charity, religious learning and other allied matters for which the
institution exists, nobody can call him to account. As regards aliena-
tion of mutt property his powers are the same as those of a Shebait in
relation to debutter property.
The juridical status of the Shebait or Mohunt has assumed import-

ance in the context of laws enacted by the State legislatures in
pursuance of Entry 28 in List III of the Constitution providing for the
regulation and control of religious and charitable endowments and
religious institutions. Under Article 25(2)(a) the legislature has an
almost unlimited power of regulating secular activities which may be
associated with religious practices; and under Article 26(d) to regulate
the administration of the property belonging to religious institutions.
But in so far as such legislation affects the status of the Shebait or Mohunt
it would be vulnerable from an altogether different angle, that is to say,
Article 19(1) (f ) ; because in the Shirur Mutt case the Supreme Court
came to the conclusion that the Shebait and more so the Mohunt , by
reason of their beneficial interest in their offices, have a property right
within the meaning of Article 19(1 )(f) in the institutions and their
endowments. The importance of this conclusion lies in the fact that
any legislation seeking to regulate religious institutions must stand the
test of " reasonableness " with reference to article 19(5) in so far as
such legislation affects the position or status of the Shebait or Mohunt .
Legislation had been enacted prior to the decision in the Shirur Mutt
case without envisaging the applicability of Article 19(1 )(f) with the
result that portions of such laws were struck down by the courts as
unconstitutional. Thus the provisions of t

Charitable Endowments Act which detracted f
disposal which a Mohunt had over the surplus
ments administered by him were held to a
restrictions. Likewise, the provision that "
personal gifts made by devotees, shall be spent
the Mutt , was an unreasonable restriction on the
with respect to such gifts. In Himatlal v. State of
39 of the Orissa Hindu Religious Endowme
unconstitutional on the ground that the settlin
to a religious institution by an executive officer w
of any judicial tribunal was an unreasonable re
property of the superior of the religious insti
with his office.
Clause (c) of Art. 26 confers on religious denominations the right

to own and acquire movable and immovable property. Having
regard to the use of the expression " movable and immovable
property " it is clear that the right is confined only to tangible property
and does not extend to incorporeal property ; it may be noted that
in Art. 19(1 )(f ) the word used is "property" simpliciter. The right
is, however, subject to public order, health and morality. Art. 26(c)
was invoked to protect properties belonging to religious and charitable
endowments from being compulsorily acquired or requisitioned. In
Suryapal Singh v. U. P . Government , 65 a Bench of five judges of the
Allahabad High Court considered the constitutional validity of the
U. P. Zamindari Abolition and Land Reforms Act, 1950. On behalf
of certain Wakfs and Hindu religious institutions it was argued that
under Art. 26(c) they had the right to " own " their properties and
hence their properties could not be compulsorily acquired. Stress
was laid on the use of the word " own " in Art. 26(c) which did not
find a place in Art. 19(l)(f) wherein the word used is "hold The
Court rejected the contention with the remark : " The argument is
wholly fallacious. Article 26(c) confers on every religious denomi-
nation the right to own and acquire property but it does no more
than this, and we can see no ground for holding that it prevents, or
was intended to prevent property belonging to a religious body being
acquired by authority of law. " The Orissa Estates Abolition Act,
1951, was challenged on the ground that acquisition of villages
endowed for the maintenance of a deity would violate Art. 26(c).
64. A.I.R. 1954 S.G. 400.
65. A.I.R. 1951 All. 674.
N. A. SUBRAMANIAÑ 347
The Orissa High Court held that the matte

concluded by the decision of the Supreme Cou
Kameshwar Singh , 66 wherein Mahajan, J., had sa
by a private individual is not immune from t
compulsorily acquire that property for public
to say that the vesting of these properties
provisions of the Act in any way affects the c
the net income that the institutions are deriv
has been made the basis of compensation aw
above observations were made by the Supre
the argument advanced on behalf of certain
that the properties being already dedicated fo
not be compulsorily acquired under Art. 31 fo
further that any reduction in income brought
acquisition would adversely affect the char
not pleaded before the Supreme Court and
Court was wrong in thinking that the ma
decided. Article 26(c) expressly confers the rig
property and hence it is no answer that cas
and it is merely conversion of immovable pro
another kind - which is the argument that
Orissa High Court. In this connection it m
while Art. 31 -A validates expropriatory legisl
the provisions of Arts. 14, 19 and 31, it do
and hence such legislation is still open to a
Art. 26(c) and (d).
Right to administer property

Under clause (d) of Art. 26 every religious denomination has
the right to administer its movable and immovable property in
accordance with law. Whereas the right to acquire and own property
is subject only to public order, health and morality, the right to admi-
nister the property is subject to statutory regulation. In this view,
Art. 26(d) is a restrictive clause. But looking at it from another angle
the clause confers the right to administer property, and hence "a
law which takes away the right of administration from the hands of a
religious denomination altogether and vests it in any other authority
would amount to a violation of the right guaranteed under clause (d)
of Art. 26 67 Section 56 of the Madras Hindu Religious and
66. A I R. 1952 S.G. 252.
67, A,I,R. 1954 S.C. 282, 291.
Charitable Endowments Act empowered the C

tory authority) to require the trustee of any
appoint a manager for the administration of t
institution and in case of default the Commissioner could himself make
such appointment. The Supreme Court considered it an extremely
drastic provision because first the power could be exercised by the Com-
missioner at his mere option without any justifying necessity like
mismanagement or maladministration of trust funds, and secondly,
the manager thus appointed would in actual practice have to act in
accordance with the directions of the Commissioner and not of the
trustee. The Court said such a provision would cripple the authority
of a Mohunt altogether and reduce his position to that of an ordinary
priest, and struck it down as violating Article 26(d). 68 But the question
of infringement of Fundamental Rights will arise only when the
administration is handed over to some other agency. If out of the
same religious denomination the law takes away the administration
from one individual and entrusts it to another individual Art. 26(d)
will not be contravened, but if the person divested had a property
right in his office such as for instance a Shebait or Mohunt , then other
provisions of the Constitution like Arts. 19(1) (f) or 31(2) might
be attracted. Hence the Sri Jagannath Temple Act, 1955, which
transferred the management of the temple from the sole charge of
the Raja of Puri to a Committee consisting of Hindu members,
did not infringe Art. 26(d) since the administration was still in the
hands of the religious denomination. Nor could the Raja invoke
Art. 19(1 )(f ) because his right was merely that of a hereditary manager
or trustee with no beneficial or personal interest in the endowment
administered and so no property right could be claimed by him. 69
Similarly, the Travancore-Cochin Hindu Religious Institutions Act,
1950, which provided for the election of a Cochin Devaswom Board
consisting of three Hindu members did not violate Art. 26(d). 70
The ratio of the Supreme Court decision in Swarup Singh v. State of
Punjab y 71 referred to above is the same.
While the right under clause (b) in matters of religion is not

subject to regulation except with respect to public order, morality
and health, the right to administer property is subject to law
generally. Hence, just as for purposes of Art. 25 religious practices
68. Ibid., at 293.
69. Rama Chandra v. State of Orissa, A.I.R. 1959 Orissa 5.
70. Nambooripad v. Cochin Devaswom Board, A.I.R. 1956 T.G. 19.
71. A.Ì.R. 1959 S.C. 860. See note 16 supra.
have to be separated from secular activities, fo

matters of religion and administration of
demarcated, and such demarcation may beco
where there is a blending of spiritual and tem
case of Shebaitship or Mohuntship. How the
line of demarcation in cases that have come
briefly referred to. Although under Art. 26(b)
tion has complete autonomy in deciding as to wh
are essential according to the tenets of the rel
of expenditure to be incurred in connection
observances would be a matter of administratio
be controlled by secular authorities in accordan
down by a competent legislature ; for it could
of any religion to destroy the institution a
incurring wasteful expenditure on rites and
view to ensuring due supervision of trust prop
of proper control over them the law could v
compulsory registration of all public religiou
maintenance of proper accounts, auditing, inve
in approved securities, prohibiting alienatio
without previous sanction of the statutory aut
matters relating to the administration of pr
could be empowered to remove trustees for va
such vacancies but to empower the court t
Commissioner (an authority constituted un
superior of a mutt would be disastrous : it i
relating to the administration of trust prop
management of its religious affairs. 74 In Rajendra
validity of section 52 of the Madras Hindu R
Endowments Act was impugned. The section
for the institution of suits for the removal of the trustee of a mutt on
grounds of misconduct, incapacity and the like. It was urged that
since the Mohunťs duty was both temporal and spiritual, there could
be no removal of him from his spiritual duties. The court's answer
was that the object of the section was to safeguard the interests of the
superior of the mutt by preventing frivolous and vexatious litigation
against him : " No one can prevent a Matadipathy from exercising his
72. Commissioner, tì.R.E. v. L. T. Swamiar, A.I.R. 1954 S.C. 282, 291.

73. Rutilai v. State of Bombay, A.I.R. 1954 S.C. 388, 393.
74. Ibid., at 393.
75. A.I.R. 1957 A.P. 283.
350 FREEDOM OP RELIGION
rights as a spiritual preceptor. So long as there i

who are willing to acknowledge the Matadipath
head, there is no question of his being depriv
functions. "
In State of M. P. v. M. S. Convent School , 76 the validity of the

Madhya Pradesh Public Trusts Act, 1951, was assailed on behalf of
the Roman Catholic Church on the ground that Canon law made
rules for the administration of church properties and since Canon law
was part of their religion, any law made by the legislature contrary to
canon law would violate the religious faith and practices of the Roman
Catholics. The Court held that in matters of property there was
always a secular angle which was supplied by the law of the land which
no religious denomination could nullify by making laws about its own
property, and hence the property of Christian religious institutions
was as much subject to law as any other property privately owned in
the country.
Conclusion
Among the Fundamental Rights deait with by the Constitution

those relating to freedom of religion stand in a special category. T
importance of Articles 25 and 26 lies not so much in the gran
religious liberty but in its restriction . For, in the field of religion
people of India have enjoyed more or less complete liberty si
Queen Victoria's Proclamation. Men have been governed by th
personal laws based on religion in most matters and the State
refrained from interference as a matter of public policy. For
first time in Indian Legal history, the regulation of religious freedo
envisaged and sanctioned by the organic law. That religious freedo
is to be subordinated to the needs of society is a revolutionary conce
the full impact of which can be realized only gradually. In
progressive society the needs of ' public order, morality and healt
or ' social reform ' will have a constantly changing content, and t
sphere of law will inevitably tend to encroach on the hitherto prese
of religion, and with the achievement of higher standards of livin
and literacy it is wont to offend the public conscience to a decreas
extent.
76. A.I.R. 1958 M.P. 362.

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FREEDOM OF RELIGION

" We declare it to be Our Royal will and pleasure that none be

* Research study conducted for the Indian Law Institute.

well-known that during the Middle Ages, the

In this paper the provisions of Articles 25 and 26 will be examined

6. In re Kerala Education Bill , A.I.R. 1958 S.C. 956 at 990.

tected, no matter whether the propagation take

It would be impossible to work out religious rights without some

8. (1943) 67C.L.R. 116 at 123.

of Australia in construing Section 1 1 6 of the

Religious practices - The qualitative test

10. ' The Commonwealth shall not make any law

exercise of any religion'.

is not part of religious faith and belief. At best it c

which, as its language indicates, secures to every

In considering the evolution of the scope of Article 25(1) by judi-

of worship which are regarded as integral part

Article 25(1) is modelled on Article 44 of the Constitution of the

17. A.I.R. 1954 S.G. 282 at 290.

18. Alladi, Constitution and Fundamental Rights , p. 45«

The police power

The rights conferred by article 25(1) are by no means absolute.

vigore to have overriding effect over clause

Clause (2) of Article 25 contains further limitations o

21. A.I.R. 1958 M.P. 115.

or other secular activity which may be as

whether a particular activity is a religious pra

shown hereinafter, the "social welfare and reform" clause in

The provisions of sub-clause (b) of Article 25(2)

measure of social reform, the Courts should n

to make a law throwing open a Jain temple to all Hindus,

is to enlarge the scope of this clause and inc

between one class and another class of Hi

broadly, this may be taken to mean that insti

It is difficult to understand why the provision em

particular aspect of them, viz.> entry into tem

Religious practices and social reform

complaints from the residents of the locality

held that a Math would come within Article 26 as a " section of

wrong to take Hinduism and the members of th

Hindu religion based upon a system of philosoph

The rights under Article 26 are subject to

45. Ve nkataramana Devaru v. State of Mysore, A.I.R. 1958 S.C. 255.

of the management of religious and charitable

The facts were different in Narayandoss v. Nelladri .51 The validity

Article 26(b) and excommunication ^

given by the Bombay High Court in the Ex

52 Saifuddin v Tyahji , A.I.R. 1953 Bom 183.

the right to excommunicate would come with

The Gurudwara case raised an interesting question. A temporary

It is an accepted principle of law that property dedicated

54. Sarup Singh v. State of Punjab, A.I.R. 1959 Ö.C. ttöU.

impose a duty on the courts to see that such

can still be carried out [is an infringement of Art

55. Watson v. Jones , 20 L. Ed. 666.

the [Temple] Fund cannot be utilised for m

Clauses (c) and (d) of Article 26 define the property rights of

60. Ibid, at p. 16.

interest in the endowed property which has

A mutt connotes a monastic institution presided over by a superior

tenant to a monastic institution and these have to be maintained. In

The juridical status of the Shebait or Mohunt has assumed import-