KLE Society’s Law College, Bengaluru

(Constituent College of KLE Technological University, Hubballi)

In-Semester Assessment
TEAM-1

Topic:
Freedom Of Religion Under Constitution Of India

Student’s Registration Number: 0 3 F L 2 4 B L L 0 5 8

0 3 F L 2 4 B L L 1 4 0
Programme: LLB
Semester: 1st SEMESTER
Section: “A” SECTION
Course Name (Subject): CONSTITUTION OF LAW -1
Course Code: 24LLLC101

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 DECLARATION

We, Kushal M S and Saraswathi, hereby declare that this research paper
entitled “Freedom Of Religion Under Constitution Of India” is our
own work and that, to the best of our knowledge and belief, it contains no
material previously published or written by another person, nor material
which to a substantial extent has been accepted for the award of any other
degree or diploma at any university or equivalent institution.
We have acknowledged all sources of information and assistance received
during the preparation of this paper.

Signature: Kushal M S
Saraswathi

DATE: NOVEMBER,5TH, , 2024

 FREEDOM OF RELIGION UNDER CONSTITUTION
OF INDIA
AUTHORS: KUSHAL M S AND SARAWATHI

ABSTRACT:
Religion, often becomes the cause of great tension and predicament, creating a rift between
people and societies, pluralism and nurturing diversity is the only way to ease such passions
and promote peace and harmony among the masses.
While the western world has recently initiated discussions on multiculturalism, India has a
vast history of managing different cultures and faiths, and this history needs to be cherished
and made relevant even today, the courts have repeatedly highlighted this rich tradition and
has held this principle of cohesiveness between the people stating that the Constitution
mandates through its various provisions to allow requisite freedom to people to discover and
express their beliefs in their divine.
This article tries to understand the idea of religion and the concept of secularism in Indian
context, these two form the foundation of the edifice of the freedom of religion in the
country. We see, how the freedom of religion with its restrictions has its implications on the
ground through Article 25, 26, 27 and 28 and their judicial interpretations and the ambiguity
in the application of the Essential Practice Test, which is paramount in solving most of the
problems emerging from various religions.

KEYWORDS:
Constitution; Freedom; Fundamental; India; Religion; Secularism.

Background of Right to Freedom of Religion

In crafting Articles 25-28 of the Constitution, India responded to the violence and
displacement during the partition in 1947, prioritizing secularism to protect minority rights.
Despite a Hindu-majority population, India aimed to provide equal security to all
communities, contrasting with Pakistan's creation as an Islamic state. This decision stemmed
from the ethos of India's freedom fighters, who envisioned an inclusive nation. Leaders
like Mahatma Gandhi and Jawaharlal Nehru championed unity amidst diversity, rejecting
religious discrimination. Hence, India's secular constitution symbolizes a commitment to
pluralism and equality, ensuring that all citizens, regardless of their faith, enjoy the freedom
to practice and profess their religion without fear of persecution.
INTRODUCTION
important amendment and played a pivotal role in reinforcing secularism as a fundamental
principle of the Indian Constitution. It not only added the term "Secular" to the Preamble but
also strengthened the concept of democracy and justice in the country. The inclusion of
"secular" emphasized that India, despite its vast diversity in religion, culture, and ethnicity,
would remain neutral toward all religions and that the government would neither promote nor
discriminate against any religion.The constitutional framework envisaged by the framers of
India’s Constitution aims to ensure that religion does not interfere with public policy or
governance. This principle of secularism is enshrined through various provisions in Articles
25 to 28, which safeguard the right of individuals to practice, profess, and propagate their
religion freely. These provisions ensure that every citizen, irrespective of their faith, is given
equal protection under the law, without any discrimination based on religion.
In addition to individual freedoms, the Indian judiciary has played a significant role in
upholding secularism. In landmark cases such as S.R. Bommai v. Union of India (1994), the
Supreme Court reiterated that secularism is a basic feature of the Constitution and cannot be
altered by any government or legislative action. The case reaffirmed that the State must
maintain a stance of neutrality when it comes to religion. Similarly, in Kesavananda Bharati
v. Union of India (1973), the Court declared that secularism is part of the basic structure of
the Constitution, and thus, any attempt to dilute or undermine this principle would be
unconstitutional.
India’s commitment to secularism is further demonstrated in its political and social
landscape. The country’s electoral processes, governance, and judicial systems are designed
to ensure that no religious group is favored over another. This neutrality fosters harmony
among its diverse religious communities, helping maintain peace and stability in a nation
with over 1.4 billion people, belonging to various faiths, languages, and cultural
backgrounds.
Despite these constitutional guarantees, the practice of secularism in India has not been
without challenges. Tensions between religious groups have occasionally led to social unrest,
and there have been debates regarding the influence of religion in politics. However, the
resilience of India’s democratic framework, backed by the judiciary’s unwavering
commitment to secularism, has allowed the country to navigate these challenges and maintain
its status as a secular state.
In conclusion, secularism is not just a legal provision but a living, evolving principle that
serves as the bedrock of India’s pluralistic society. The Constitution guarantees that every
citizen has the freedom to practice their faith, and the government remains neutral in religious
matters. India’s example underscores how a nation can celebrate its religious diversity while
ensuring the equal treatment and freedom of its citizens, regardless of their religious
affiliations.
 RELIGION OF INDIA 2011 CENSUS

0.50 0.40 0.25

0.70
1.70
0.15
2.30

14.20

Hinduisam
Islam

Christianity

Sikhism

Buddism

Animism/Adiv
asi
79.80
Jainism
CONSTITUTIONAL PROVISIONS

1 Fundamental Rights

The Constitution of India guarantees the right to freedom of religion as a part of its
Fundamental Rights, outlined in Part III. The specific articles that protect religious freedom
are:

• Article 25: Freedom of Conscience and Free Profession, Practice and

Propagation of Religion

Article 25 of the Constitution guarantees the freedom of conscience and the free profession,
practice, and propagation of religion. This article ensures that every individual has the right to
practice and propagate their faith, subject to public order, morality, and health.

The Supreme Court of India has interpreted Article 25 in various cases to mean that the
freedom of religion is not absolute and is subject to reasonable restrictions. In the case of
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt (1954), the Supreme Court held that the freedom of religion is
not a fundamental right that is absolute in its scope, but is subject to the limitations imposed
by the Constitution.

• Article 26: Freedom to Manage Religious Affairs

Article 26 of the Constitution guarantees the freedom to manage religious affairs. This article
ensures that every individual has the right to manage their religious affairs, subject to public
order, morality, and health.

In the case of Sri Venkataramana Devaru v. State of Mysore (1958), the Supreme Court
held that the freedom to manage religious affairs includes the right to administer the
properties of a religious institution.

• Article 27: Freedom from Taxation for Promotion of Any Particular Religion

Article 27 of the Constitution guarantees the freedom from taxation for the promotion of any
particular religion. This article ensures that no individual can be forced to pay taxes for the
promotion of any particular religion.
In the case of Society for Unaided Private Schools of Rajasthan v. Union of India (2012),
the Supreme Court held that the freedom from taxation for the promotion of any particular
religion does not mean that the state cannot impose taxes on educational institutions that are
run by religious organizations.

• Article 28: Freedom from Attendance at Religious Instruction

Article 28 of the Constitution guarantees the freedom from attendance at religious instruction.
This article ensures that no individual can be forced to attend religious instruction or
participate in any religious ceremony.

In the case of the Supreme Court held that the freedom from attendance at religious
instruction includes the right to opt out of religious education in schools.

2 Directive Principles of State Policy

The Directive Principles of State Policy, found in Part IV of the Constitution, although not
justiciable, provide guidelines for the state to promote social and economic justice. Relevant
articles include:

• Article 44: This article advocates for the enactment of a Uniform Civil Code (UCC),
which seeks to replace personal laws based on the scriptures and customs of each
major religious community with a common set governing all citizens. Advocates
argue that a UCC would promote gender equality and eliminate discrimination against
women in personal laws, while opponents fear it undermines religious freedom.
• Article 46: This article directs the state to promote the educational and economic
interests of Scheduled Castes, Scheduled Tribes, and other weaker sections of society.
This is particularly relevant in discussions about protecting the rights of religious
minorities and ensuring they receive equal opportunities.

3 Article 14: Right to Equality

Article 14 ensures that all individuals are equal before the law and guarantees equal
protection of the laws. This right is fundamental in preventing discrimination based on
religion, thus reinforcing the secular and democratic fabric of the nation. The courts have
consistently upheld this right in cases where religious practices have led to discrimination or
violence against specific groups.
RELIGION
Religion in India is characterised by a diversity of religious beliefs and practices. Throughout
India's history, religion has been an important part of the country's culture and the Indian
subcontinent is the birthplace of four of the world's major religions,
namely, Buddhism, Hinduism, Jainism, and Sikhism, which are collectively known as
native Indian religions or Dharmic religions and represent approx. 83% of the total
population of India.
The Preamble to the Constitution of India states that India is a secular state, and
the Constitution of India has declared the right to freedom of religion to be a fundamental
right.

IMPORTANCE OF FREEDOM OF RELIGION

The freedom of religion is essential for the development of a democratic society. It allows
individuals to practice and propagate their faith without fear of persecution or discrimination.
The freedom of religion promotes tolerance, understanding, and mutual respect among
individuals of different faiths.

In the case of Rajendra Prasad v. State of Uttar Pradesh (1954), the Supreme Court held
that the freedom of religion is an essential part of the Constitution and is fundamental to the
development of a democratic society.
HISTORICAL CONTEXT
1. Pre-Independence Era

The struggle for freedom in India included significant discourse on the right to religious
freedom. British colonial rule imposed several laws that restricted religious practices and
suppressed dissenting voices. Movements like the Brahmo Samaj and Arya Samaj emerged,
advocating for reform and the right to practice one's faith freely.

2. Post-Independence Developments

The framers of the Constitution recognized the importance of religious freedom in a nation
characterized by pluralism. The debates in the Constituent Assembly reflected diverse
perspectives, with leaders like B.R. Ambedkar emphasizing the need for constitutional
safeguards against discrimination based on religion.

The inclusion of comprehensive provisions for religious freedom in the Constitution was a
significant step towards ensuring that all citizens could coexist peacefully, respecting each
other’s beliefs and practices.

LAWS AND CONSTITUTION OF INDIA

The Preamble of the Constitution of Indiahas the word "secular", and articles 25 to 28
implying that the State will not discriminate, patronise or meddle in the profession of any
religion. However, it shields individual religions or groups by adding religious rights as
fundamental rights. Article 25 says "all persons are equally entitled to freedom of conscience
and the right to freely profess, practice, and propagate religion subject to public order,
morality and health". Further, Article 26 says that all denominations can manage their own
affairs in matters of religion. All these rights are subject to be regulated by the State.

Article 25 (2b) uses the term "Hindus" for all classes and sections of Hindus, Jains, Buddhists
and Sikhs. Sikhs and Buddhists objected to this wording that makes many Hindu personal
laws applicable to them. However, the same article also guarantees the right of members of
the Sikh faith to bear a Kirpan. Religions require no registration. The government can ban a
religious organisation if it disrupts communal harmony, has been involved in terrorism or
sedition, or has violated the Foreign Contributions Act. The government limits the entry of
any foreign religious institution or missionary and since the 1960s, no new foreign
missionaries have been accepted though long term established ones may renew their visas.
Many sections of the law prohibit hate speech and provide penalties for writings, illustrations,
or speech that insult a particular community or religion.
Some major religious holidays like Diwali (Hindu), Christmas (Christian), Eid (Muslim) and
Guru Nanak's birth anniversary (Sikh) are considered national holidays. Private schools
offering religious instruction are permitted while government schools are non-religious.

The government has set up the Ministry of Minority Affairs, the National Human Rights
Commission (NHRC) and the National Commission for Minorities (NCM) to investigate
religious discrimination and to make recommendations for redressal to the local authorities.
Though they do not have any power, local and central authorities generally follow them.
These organisations have investigated numerous instances of religious tension including the
implementation of "anti-conversion" bills in numerous states, the 2002 Gujarat violence
against Muslims and the 2008 attacks against Christians in Orissa.

For Shia Muslims, the Grand Ashura Procession In Kashmir where they mourn the
martyrdom of Husayn ibn Ali has been banned by the Government of Jammu and Kashmir
from the 1990s. People taking part in it are detained, and injured by Jammu and Kashmir
Police every year. According to the government, this restriction was placed due to security
reasons. Local religious authorities and separatist groups condemned this action and said it is
a violation of their fundamental religious rights

Post-independence state laws

The Article 25 of the Constitution of Indiais a basic human right guarantee (see Articles 18
and 19 of the Universal Declaration of Human Rights) that cannot be subverted or
misinterpreted in any manner. Anti-conversion laws are promulgated on the premise that
forced or induced conversions happen and need to be prevented.

A consolidation of various anti-conversion or so-called "Freedom of Religion" Laws has been

done by the All Indian Christian Council. Several Indian states passed Freedom of Religion
Bills primarily to prevent people from converting to Christianity. Orissa was the first state to
bring such law named as 'Orissa Freedom of Religion Act, 1967' It was followed by Madhya
Pradesh in 1968 and Arunachal Pradesh in 1978. Christians protested against this saying that
propagation of their faith was an important part of Christianity. Both laws enacted by the
Orissa and Madhya Pradesh high courts were challenged stating Article 25 of the
Constitution. The Supreme Court supported the laws saying, "What is freedom for one is
freedom for the other in equal measure and there can, therefore, be no such thing as a
fundamental right to convert any person to one's own religion".

Chhattisgarh in 2000 and Gujarat State in 2003 passed anti-conversion laws that prohibit
forced or money induced conversions. In July 2006, the Madhya Pradesh government passed
legislation requiring people who desire to convert to a different religion to provide the
government with one month's notice, or face fines and penalties. In August 2006, the
Chhattisgarh State Assembly passed similar legislation requiring anyone who desires to
convert to another religion to give 30 days' notice to, and seek permission from, the district
magistrate. In February 2007, Himachal Pradesh became the first Congress Party-ruled state
to adopt legislation banning illegal religious conversions. It was followed by Rajasthan in
2008, but it has still not become an act. So total there are 10 states where freedom of religion
bill has become an act- Odisha, Madhya Pradesh, Arunachal Pradesh, Chhattisgarh, Gujarat,
Haryana,Himachal Pradesh, Uttarakhand, Uttar Pradesh and Jharkhand.

In 2013, the Bharatiya Janata Party general secretary Venkaiah Naidu has declared that his
party would bring anti-conversion laws nationwide if his party is elected to power in 2014
However, as of January 2018, the party does not yet have a majority in the Upper House of
the Parliament. The president of party Amit Shah has challenged the opposition parties to
support it in enacting such a law. The US State Department has said that the recent wave of
anti-conversion laws in various Indian states passed by some states is seen as gradual increase
in ideological Hindu nationalism (Hindutva).

Madhya Pradesh Freedom of Religion Act of 1968

The Niyogi Committee (1954) set up by the Congress government in Madhya Pradesh
alleged that Christian missionaries were creating 'a state within a state' and observed that the
'philanthropic activities of Christian missionaries are a mask for proselytization.' Missionary
work was also opposed by the Sangh Parivar. The Madhya Pradesh Assembly rejected the
Freedom of Religion Bills of 1958 and 1963. However, this bill was passed in 1968 as 'The
Freedom of Religion Act.' The Madhya Pradesh 'Freedom of Religion Act' requires that a
convert produce a legal affidavit that he/she was not under any pressure, force, or allurement
to convert but was converting by own will and desire after evaluating the religion properly.
Also according to this law, anyone who writes or speaks or sings of 'divine displeasure' (with
an intention to induce forced conversion by means of threat) can be imprisoned for a period
of up to two years and fined up to five thousand rupees.

Orissa Freedom of Religions Act of 1967

The Orissa Freedom of Religions Act of 1967 states that "no person shall convert or attempt
to convert either directly or otherwise any person from one religious faith to another by the
use of force or by inducement or by any fraudulent means nor shall any person abet any such
conversion". Contravention of this law was punishable with imprisonment of up to one year
and/or a fine of up to Rs 5,000. In the case of a minor, a woman, or a person belonging to a
Scheduled Caste or Tribe, the punishment was up to two years of imprisonment and the limit
of the fine raised to Rs. 10,000. The Orissa High Court, however, struck down the Act as
ultra vires of the Constitution on the ground that the state legislature did not have the right to
legislate matters of religion. The same year, the state of Madhya Pradesh also enacted the
Madhya Pradesh Freedom of Religion Act as seen above. However, the Madhya Pradesh
High Court, in contrary to the Orissa High Court, negated the challenge of some Christians
that the Act violated their fundamental right as provided under Article 25 of the Constitution.
The decisions of both the Courts were challenged before the Supreme Court. The Supreme
Court upheld the decision of the Madhya Pradesh High Court and reversed the decision of the
Orissa High Court.
Arunachal Pradesh Freedom of Religion Act of 1978

The Arunachal Pradesh government enacted this Act to protect the tribals of Arunachal
Pradesh from forced conversions of any kind.

Tamil Nadu Prohibition of Forcible Conversion of Religion Bill 2002

The Tamil Nadu Prohibition of Forcible Conversion of Religion Bill 2002 stated that 'No
person shall convert or attempt to convert directly or otherwise any person from one religion
to another either by use of force or by allurement or by any fraudulent means.' However, soon
after the defeat of the Bharatiya Janata Party-led coalition in the 2004 elections, the Tamil
Nadu Government led by Jayalalitha repealed the law in June.

Gujarat Freedom of Religion Act 2003

The Gujarat Assembly passed the Freedom of Religion Act in March 2003. It was called the
Dharam Swatantrata Vidheya (Freedom of Religion Act). Narendra Modi, the Chief Minister
of the State, called the Act as one of the main achievements of his government's one year in
office. The law prohibited conversion by force or inducement.

Himachal Pradesh Freedom of Religion Act 2006

Himachal Pradesh Freedom of Religion Act 2006 is a bill unanimously passed by the
Legislature of Himachal Pradesh state in India on 19 December 2006. According to Chief
minister Virbhadra Singh, "The Bill was intended to prevent forcible conversions.
Conversions created resentment among several sections of the society and also inflame
religious passions leading to communal clashes," he said. He claimed the Bill was meant to
prevent exploitation of the depressed classes. On 20 February 2007, Governor Vishnu
Sadashiv Kokje gave his assent to the Himachal Pradesh Freedom of Religion Bill 2006.
JUDICIAL INTERPRETATIONS

➢ Landmark Judgments

The Indian judiciary has played a pivotal role in interpreting and protecting the right to
freedom of religion through various landmark judgments:

• Kesavananda Bharati v. State of Kerala (1973) established the basic structure

doctrine, asserting that the Constitution's fundamental rights, including the right to
religious freedom, cannot be altered or abridged by amendments.

• S.R. Bommai v. Union of India (1994) dealt with the issue of federalism and the
misuse of Article 356, emphasizing the need to respect the autonomy of state
governments, including their management of religious institutions.

• Shayara Bano v. Union of India (2017) challenged the practice of instant Triple
Talaq, highlighting the intersection of gender rights and religious practices. The
Supreme Court ruled the practice unconstitutional, thereby reinforcing the rights of
women within the framework of religious freedom.

• Sarla Mudgal v. Union of India (1995): This case focused on the conflict between
personal laws and the constitutional guarantee of equality. It addressed the issue of
conversion to Islam for the purpose of polygamy, with the court emphasizing that
while individuals have the right to change their religion, it cannot be used as a tool to
bypass legal restrictions.

• Indian Young Lawyers Association v. State of Kerala (2018): This landmark

judgment allowed women of menstruating age to enter the Sabarimala temple,
challenging traditional religious practices that restricted entry. The judgment
emphasized that religious practices must comply with constitutional morality and
fundamental rights, and they cannot infringe on the rights of women.
 • Ismail Faruqui v. Union of India (1994): The Supreme Court ruled that the
demolition of the Babri Masjid, although a religious structure, had to be viewed
within the larger context of law and order. The court highlighted the delicate balance
between religious freedom and maintaining public peace.

➢ Balancing Rights

The judiciary often faces the challenge of balancing individual rights against collective
religious practices. The courts have, in various cases, emphasized that while the freedom to
practice religion is protected, it cannot infringe upon the rights of others or public order.

SOCIETAL IMPLICATIONS

➢ Religious Minorities

India's pluralistic society necessitates special protections for religious minorities. The
National Commission for Minorities, established under the National Commission for
Minorities Act, 1992, plays a vital role in safeguarding the rights of minorities. It addresses
grievances, ensures representation in decision-making processes, and promotes educational
and economic development.

➢ Challenges to Religious Freedom

Despite constitutional guarantees, religious freedom is frequently challenged by societal

norms, political agendas, and communal tensions. Instances of mob violence, targeted attacks
on religious minorities, and the rise of religious intolerance have underscored the
vulnerabilities that exist within the framework of religious freedom in India.
SECULARISM IN INDIA

The western idea of "Secularism" was obtruded on Indians by the colonial masters and upon
independence the Indians rejected it, and a customised version of it was introduced, suitable
to the peculiar socio-cultural and political situations of India, but this "desi" version is also
open multiple interpretations. India, has always been the land which welcomed all faiths and
religions from all corners of the world, and the people having diverse faiths also found India
to be a conducive place to live freely and remain undisturbed. Gradually, these faiths started
influencing each other and also the polity of the country, and rightly so, because when one is
surrounded by superior philosophies continuously it is somewhat strenuous to not be theist,
and slowly the philosophical characteristic of India developed into a theist State and not
otherwise. The Constituent Assembly was divided over the amendment, whether to begin the
Constitution with "In the name of God", many arguments were made for and against
pertaining to the relation of the State with religion, but finally the amendment was declined
but the assembly did not agree over the term secular either. The assembly was unanimous on
the point that independent India should be secular as secularism is essential for democracy to
prosper in India, but what kind of secularism India should adopt was a conundrum. The word
"Secular" was added to the Constitution vide the 42nd Constitution Amendment after the
historic virtues of tolerance and harmony were rejuvenated by the efforts of various laws and
judicial interpretations. This concept of Secularism is not similar to the Doctrine of
Secularism in America, which tries to establish a rigid distinction between the State and the
religion. India adopts an affirmative side of secularism, wherein it is neutral in terms of
religion, and is in consonance with its ancient legacy of accommodating all faiths and
abandoning none.

According to Donald E. Smith, the Indian way of secularism refers to the non-religious
functioning of the State, it has a non-communal and non-sectarian connotation and not a strict
schism between state and religion. India may not be a completely theist state but it is
definitely not an atheist state. India has its own way of dealing with multiculturalism and
relies more on customisation and adjustment with all beliefs than stubbornly rejecting them.
CONCLUSION
India has long embraced secularism as a core value, rooted in its ancient tradition of cultural
and religious freedom. While the Western concept of secularism may not fully apply to the
Indian context, the inclusion of the term "secular" in India’s constitutional framework
remains significant, symbolizing a commitment to diversity. Though criticisms of the
Essential Practices Test are notable, this judicial tool is essential in a country as religiously
diverse as India, where unchecked disputes could escalate if not carefully adjudicated.
However, the test should be reserved for cases with serious concerns about violations of
constitutional restrictions, rather than intervening in minor religious practices.

The judiciary has consistently upheld the autonomy of religious institutions, particularly in
their management and foundational practices, while the state largely refrains from
overregulating religious affairs focusing instead on the commercial aspects when necessary.
This balance, maintained by the state, judiciary, and society at large, exemplifies India’s
"unity in diversity" and strengthens its democratic resilience, even under challenging
circumstances.

REFERENCES

1. “The Constitution of India” M P Singh

2. “Freedom of Religion” by Dr. Subhash C. Kashyap
3. “The Indian Constitution: A Critical Commentary” by S.P. Sathe
4. “Religion Of India 2011 Census”
5. “Rajendra Prasad v. State of Uttar Pradesh (1954)”
6. “S.R. Bommai v. Union of India (1994)”
7. “Kesavananda Bharati v. Union of India (1973)”
8. “Sri Venkataramana Devaru v. State of Mysore (1958)”
9. “Society for Unaided Private Schools of Rajasthan v. Union of India (2012)”
10. “Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of
Sri Shirur Mutt (1954)”