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Fundamental Rights in Indian Constitution - Part - 5

Articles 25 to 28 are about Freedom of religion and Secularism.

Article 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 maybe 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 (2), the 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 26. Freedom to manage religious affairs - Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law.

Article 27. Freedom as to payment of taxes for promotion of any particular religion

No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.

Article 28. Freedom as to attendance at religious instruction or religious worship in certain educational institutions

(1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds.

(2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.

(3) No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.

We need to remember that minority rights in addition to being fundamental rights under the Indian Constitution are also Human Rights under UN Charter. Video available about this on YouTube Channel UN Human Rights under Creative Commons Attribution licence (reuse allowed) - All In 4 Minority Rights may be seen here.

Analysis of Freedom of religion and Secularism under Articles 25 to 28 with the help of Case Law

Religion is a matter of faith and belief. Constitution of India accepts the importance of religin in the life of people. Right to freedom of religions is provided in Articles 25 to 28 . The Supreme Court has held Secularism to be a basic structure of the Constitution in many cases. Most important among them is the Keshvanand Bharti case.

The word secular was born in middle ages in Europe. In 1948, during debates in the Constituent Assembly, K.T. Shah had demanded that the word secular should be added in the Preamable, but it was not done at that time. In 1976, Indira Gandhi Government added the word secular in the Preamble by the 42^nd Constitutional Amendment.

1. In S.R. Bommai Vs. Union of India AIR 1994 Sc 1918 a 9 judge bench held secularism to be a basic featrure of the Constitution of India. The Court also said that politics and religion shold not be mixed. There is not place for religion in matters of State. Religion, faith and belief have no vakue from the point of view o fthe State.
2. In Tilkayat Shri Govindlalji Vs State of rajasthan the Supreme Court held that in order to decide what is integral part of a religion, it needs to be seen whether that thing is considered to be integral or not by the community which follows that religion.
3. In S.P. Mittal Vs Union of India the Court held that atheism is also a religion.
4. In Bijoe Emmanuel Vs State of Kerala the Supreme Court held that expelling children fron school for not singing the National Anthem is violation of theri freedoom fo religion. The Court said that there is no porvision of Law shich compells a person to sing the National Anthem. If a person stands respectfully but does not sing the National Anthem then it is not an insult of the National Anthem.
5. However in Shyam Narayan Chowksey Vs Union of India the Superem Court held that every citizen is obund to show respect to the National Anthem of India. The Court also siad that it is not mandatory to play the National Anthem in ciema halls. Watch a news item on NDTV on this subject.

6. Article 51A makes showing respect towards out National Anthen a duty of every citizen.
7. In Ramesh vs Union of India, (1988) 1 SCC 668 a Peition was filed in the Supreme Court under Article 32, for banning Doordarshan serial Tamas. The Court rejected the Peition and held that the serial does not violate Articles 21 and 25. The author has stressed on rising above religious feelings. On seening the serial fully it generates feeling of peaseful co-existance and there is not possibility of spread of violance from it.
8. In Aditya Vs Travancore Divasthanam Board the issue was wether appointment of a non Malayal Brahmin as the Pujari of the Kongorapilli NiriKod Shiva temple is a violation of the provisions of the Constitution. The Court held that if a person is trainined properly in offering prayers to the deity then such a person can be appointed Pujari irrestective of his caste.
9. In Bhoori Vs State of Jammu and kashmir, AIR 1997 Sc 1711, the Supreme Court held the Jammu and Kashmir Mata Vaishno Devi Shrine Act, 1988 to be Cinstitutional and said that the right to worship is a customary right which can be extinguished by the State by making a law.
10. In M. Ismail Faruqui Vs Union of India The Supreme Court held that a Mosque is not an integral part of Islam. Muslims can read the Namaz in open spaces too> It is not necessary to do it in a Mosque only.
11. In M Siddiqe Vs Mahant Suresh Das, the Superem Court held that State has sovereign powers to acquire property. State also has the powert to acquire property of places of worship like mosque, temple and church. Acquisition of places of worship is not a violation of Articles 25 and 26. However if the right to follow a religions of the persons of that religion is violated by the disappearance of such places, that acquisitions of these places cannpt be permitted.
12. Tripple Talaq: Shayra Bano Vs Union of India - Talaq-e-boiddat is also known as tripple Talaq. A 5 judge bench of the Supreme Court with a 3:2 majority held the custom of Talaq-e-biddat to be illegal and unltra vires of the Constitution. After this the Government isssued the Muslim Women (Protection of marital rights) Ordinance, 2018. Finally the Muslim women (Protection of marital rights) Act, 2019 came into existance, which declared the divorce by a Muslim to to his wife by uttering the workd Talaq three times to be invalid. Please see the videio available on this subject on YouTube channel Webdunia Hindi under Creative Commons Attribution licence (reuse allowed).

13. Noise Pollution in the name of religion: In Church of God (Full Susamachar) Vs KKR, the Supreme Court held that there is no mention in any religion that prayer should be held by beating drums or with the help of loud speakers, which violates the peace of others. If there is any such tradition, it should be done without violating the rights of others and interfering in their activities. Earlier people of all religions used to create disputes on the use of loud sepakers in prayers. The judgement of the Supreme Court put an end to this. A vidio available on YouTube channel AAPKA PRAHAR TIMES under Creative Commons Attribution licence (reuse allowed) shows rhis dispute.

14. In Re-Noise Pollution case the Supreme Court issued detailed guidelines to curb noise pollution:
    1. Complete nan on fire crackers emitting sound from 10 PM to 6 AM.
    2. Except in case of public emergency, ????????? ???? ?????? ?? ?????? ??? 10 ??? ?? ???? 6 ??? ?? ??? ???? ?????, ???-???, ????? ????? ?? ???? ?? ????? ?????????? ?? ????? ?? ????????.
    3. ????? ?????? ????????? ???? ?? ???? ??? ??????? ???? ???? ?????????? ?????? ???? ?? ???????? ???? ?????.
15. ?????? ???? ???? ???? ??? ??? ???????? ???????? ?? ????, ???????? ?????? ??????? ????????????? ?? ??????? ???????? ????? ?????? ?? ?? ??, ????? ?? ???? ???? ???? ?? ???? ?? ????????????? ?? ??????? ??????? ?????? ?????? ?? ?? ??.

Article 29 - Protection of interests of minorities

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

30. Right of minorities to establish and administer educational institutions-

(1) All minorities, whether based on religion or language, 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.

(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, whether based on religion or language.

Analysis of Educational and Cultural Rights of Minorities under Articles 29 and 30

Who are Minorities: Article 30 of the Constitution talks of 2 types of minorities - linguistic and religious. Artile 29(1) says any person who has "his own specific language, sript or culture" has a right to preserve it. In the context of religious minorities, Section 2(c) of the Minorities, Act recognized 5 acommunities as minorities, viz., Muslim, Sikh, Christian, Boudh and Parsi.

1. In Ravneet Kaur Vs Christian Medical College (1997), the Supreme Court has held that schools and colleges aided by the State cannot discriminate among the students on the basis of religion, caste, race etc.
2. In D.P. Joshi Vs Union of India, (1955), the Supreme Court siad that discrimination based on place of residence still exists. Universities use criteria of residence for admissions. In Ashok Kumar Thakur Vs Union of India (2008), the Supreme Court held that when it comes to admissions in Post Graduate Courses, then it will be better not to give resrevation based on residence or institution.
3. In S.P. Mittal Vs Union of India AIR 1983 Sc 1, the Court held the Auroville (emergency provisions) Act, 1980 by which Tamil Nadu Governemnt had taken over the administration of Auroville Society, to be valid Constitutionally, and held it not be violative of Acrticles 29 and 30. Auroville is not a religious society but is based on the principles of Shri Aurobindo therefore, it will not get the protection of these Articles.
4. In State of Madras Vs Champakam Doarirajan,(1951) the Supreme Court held reservations based on caste to be violative of Article 29(2), as a result of which Article 15(4) was Amended for the first time to provide for caste based resrevations by Law.
5. In State of Bombay Vs Bombay Educaitonal Society the Supreme Court said that Minority institutions have a right to give admissions to students of their choice, when they do not get aid from the Government.

   Differnce between Article 29(2) and Article 15(1)

   Article 29 (2) and Article 15 (1) are very similar. Both prohibit discrimination based on caste, race, gender, etc. The big differnce between the two is that Article 15 has a greater context agaisnt discrimination and Article 29 provides for specific compensation to those who have face discrimination in admissions in educational institutions. Constitution makers have provided this additional measure because education is necessary.

   

   Relations between Article 29(1) and 30(1)

   Article 29(1) protects those communities who have their won language, culture and script. Article 30(1) protects the rights of minorities to establish and manage educational institutions. Thus, both articles provide the facility of establishing to minorities to establish their own educational institutions. The difference is that Article 29(1) defines, who are minorites.

6. The right of recognistion and affilitation is not a fundamental right: The right to establish and manage educaitonal institutions is a fundamantal right of minoirty communities, but recongnisiton and affiliation is not a fundamental right. In Sdihdhraj Bhai Vs State of Gujarat, the Court held that affilaiton is not a fundamental right. In Pai foundations Vs State of Karnataka and P.A. Inamdar Vs State of Maharashtra the court held that Government has the power to make such rules and regulations following which is a necessary condition to get affilitation, provided they are for ensuring excellance.
7. In Islamic education society Vs State of Karnataka AIR 2003 SC 3724, the Court said that those educational institutions which do not get aid from the Government are entitled to autonomy but they should not neglect the principle of quality.
8. In P.A. Inamdar Vs State of Maharashtra, the Supreme Court held reservations in private institutions to be a violation of Article 30 and 19(1)(g). The Court said that such policies will result in nationalisation of seats. The Court held that such policies violate the right of minority institutions to autonomously establish and manange educational institutions under Article 30.
9. In Bal Patil Vs Union of India, the Court reufsed to recognise Jains as a Minority under Section 2(c) of the Minorities Act.