Unit 1 [Religion & Law]

Religion: Meaning, relationship with law

Introduction
Religion is a social phenomenon, distinctive and each has its own centre of
population. The character and right of religious observance depends upon the
membership of particular social group. Religious issues often become spots of
social anxiety because of competing religious sentiments. And Transformations
within the religion occur in the course of social development due to reformative
movements, emergence of alternative faiths, rise of new leadership, impact of other
cultures and efforts of modernization.
India is a land of diversities which can be seen in religion, languages, customs
geographical attributes and other. Indian law was largely evolved from religious
perceptions, customs and common law to the current legal system. The history of
Indian Law was recognized from the Vedic ages. Even after Independence it is
evident from the fact that much importance is being given to religion of person in
Constitution as well, due to the fanaticism of people towards their religion, that one
cannot ignore their religion subsequently it would be difficult to give effect to the
law in uniformity. This is the only reason that, simultaneously with huge diversity
in India, there exist number of legislations which give due consideration to once
religion.
Meaning of Religion
The word religion is derived from the Latin word ‘religio’ which means ‘respect
for what is sacred’ and ‘religare’ which means ‘to bind in the sense of an
obligation’.
Religion is not only the basis of life but it is also a way of living because every
religion has specific norms and beliefs which gradually become habit of their life
and hence becomes a way of living. Perhaps, the moral duty to follow particular
order or a norm enters the boundary of law where people are compelled to follow a
law and it is made sure that they are not broken or violated.
It is also true that far before the origin of states and their authority, people followed
the norms of their religion as laws and duties. Religious texts such as the
Arthashastra (400BC), the Manusmriti (100AD) were considered as an
authoritative source of legal guidance. The Qiyas (reasoning by analogy) which
were used to interpret law in Islam was similar to that of the later common law
system. According to the words of Justice Gamal Moursi Badr, "Islamic law is like
common law where it is not a written law based entirely on the Quran but that the
provisions of Islamic law are to be sought first and foremost in the teachings of the
authoritative jurists (Ulema)." Hence, Islamic law may be called as a lawyer's law
if common law is a judge's law.
Therefore, religion played a very vital role in maintaining law and order in
different parts of the world in different manners.
In general we can say that, Religion refers to any social structure, in which people
have a consistent faith, believe and which includes all sort of customs, traditions,
rituals, that are followed by them.

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Relationship of religion with law
Religion and law are interdependent on each other. Religion in India is of great
significance and plays a very predominant role in the society. It has both positive
as well as negative impact in the society. Positive in the terms that it helps to
regulate morality, powerful to regulate the society and even over of time period
practice of a religion also shaped itself and have a force of law for e.g. Hindu
Marriage Act. It impacts negatively by encouraging groupism, social clashes,
fanatisms in society.
India is said to be a land of religious and cultural diversities and religious tolerance
is established in both law and custom. If we look at the history of our country, we
can find that a vast number of Indians associate themselves with religion and
religion has always been an important part of the country's culture.
According to the Indian census, about 80.5% of India's total population is
accompanied by Hinduism, followed by Islam and Christianity with 13.4% and
2.3% respectively.Sikhism holds the fourth position with 1.9% of the total
population.
Stating the hospitality of Hinduism towards all other religions, John Hardon says
"However, the most significant feature of current Hinduism is its creation of a non-
Hindu State, in which all religions are equal."
Buddhism and Jainism are other native religions of India. There were two
philosophical streams of thought in ancient india-
 Shramana religion- Shramanas were those who were particularly known as
monks. They believed in ascetic lifestyle in pursuit of spiritual liberation.
 Vedic religion- A polytheistic sacrificial religion involving the worship of
various male divinities most of whom were connected with the sky and
natural phenomenon.
These are parallel traditions that have existed side by side for thousands of years.
Both Buddhism and Jainism are continuations of Shramana traditions and modern
Hinduism is the continuation of Vedic tradition.
India's religious vicinity extends to the highest levels of india's administration. The
42nd Amendment of the Constitution of India included the term 'Secular' and
insists the citizens that the nation must uphold the right of citizens to freely
worship and propagate any religion or faith (with activities subject to reasonable
restrictions for the sake of morality, law and order etc). In fact, The constitution
of India itself enumerates various fundamental rights on freedom of religion
from Article 25-28,8 i.e.:
 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 may be

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 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.

In the case of Shayara Bano V. Union of India, the Supreme Court held
that the practice of instantaneous talaq-ul-biddat (triple talaq) which
authorized a Muslim man to divorce his wife by simply pronouncing the
word talaq thrice as legally invalid. While giving judgment, Judges are of
the opinion that only because the practice have been followed from a long
time period doesn’t validate it if it has been expressly susceptible. The bench
while giving judgment relied on Article 25(2) of the constitution.

In the case of Indian Young Lawyers Association & Ors. V. State Of

Kerela: This case is popularly known as Sabrimala temple case, PIL was
filed in the year 2006, challenging the practice followed by the temple of
restricting entry of women on the notion of impurity and pollution
associated with mensuration as violative of Article 14 of the Constitution.
On which majority of 4:1, the court ruled the practice as violative of
Fundamental rights of women guaranteed under Article 25(1) of Constitution
and Rule 3(b) of Kerala Hindu places of Worship.

 Article 26 -Freedom to manage religious affairs.

Subject to public order, morality and health, every religious denomination or

any section thereof shall i /e 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 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

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 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
Indian citizens are generally tolerant of each other's religions and every citizen of
the country successfully retain secularism among each other.
In the case of Sardar Syedna Tahir Saifuddin v. State of Bombay , It was
observed that Articles 25-30 embodies the principles of religious toughness that
has been the distinctive feature of Indian civilization from the very beginning of
history. They serve to maintain the secular nature of Indian democracy which the
framer of Constitution considered to be the very basis of the Constitution.
Conclusion
We can conclude by saying that law and religion are integral part of each other and
religion is the very basis of formulation of law. One of the basic aim of law or legal
system is to protect and value the beliefs and sentiments of all the citizens and keep
a good eye on social interests. As religion makes a way of living to the people,
therefore, it is natural that their sentiments and practices will be as per their way of
living. Law related to personal matters are still governed by religious personal laws
which are now to some extent being codified, and the freedom of religion which is
a fundamental right guaranteed under Constitution of India is also exercised by
every citizen of India. But even after constitutional freedoms, various controversies
or communal violence’s had been taken place from time to time. And to great
extent Court have been playing a very predominant role while deciding any
religious matters.

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 Unit 1 [Religion & Law]
Religion as an integrative or divisive factor
Introduction
The word religion is derived from the Latin word ‘religio’ which means ‘respect
for what is sacred’ and ‘religare’ which means ‘to bind in the sense of an
obligation’.
Religion is a set of beliefs, practices, feelings and dogmas that define the relations
between human beings and sacred or divinity. It helps in creating a cohesive bond
among the members of same fraternity. It is perceived as a social phenomenon
which has its roots in faith and unity. It acts as an indivisible bond for persons who
follow it and it gives a collective identification for the members of same faith.
The essence and harmonisation factor of religion leads to close knit among people
which propels the development of a community based on some shared goals,
beliefs and thoughts. People belonging to the same religion tend to unite because
of several common factors like: common deity, common practices and rituals,
common place of worship, charitable institution, sense of security from religion,
common religious leader etc. In traditional societies, religion acted as a form of
social control.
However, Karl Marx said that religion is the opium of people and it leads to
illusionary happiness and one must abolish religion to attain real happiness.
Religion contains rules of spiritual and ethical discipline for attaining self-
perfection and these rules vary from one religion to another. Thus, religion at times
leads to diversity in identity.
Conflict may break out amongst several religions leading to an intra-religion
conflict. Because of competing religious sentiments, it brings out social tension
and often hinders social change. The cry that one’s religion is in danger or that
one’s religion is superior to another’s religion often leads to collective violence and
religion starts acting as a divisive factor.
Causes for Religion as a Integrative Factor:
Religion also acts as an integrative factor integration in this process different
religious traditions and practices are followed together to foster understanding and
cooperation. This process aims to build inclusive societies where multiple religious
beliefs coexist harmoniously. Religion can be an integrative factor in society in a
number of ways, including:
1. Social cohesion: Religion can promote a sense of belonging and collective
consciousness, which can help reinforce social unity and stability.
2. Social interaction: Religious rituals and communal practices can bring
people together, providing opportunities for social networking and support.

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 3. Shared values: Religion can provide a place to meet others who share
similar values.
4. Emotional comfort: Religion can provide emotional comfort in times of
crisis.
5. Social control: Religion can reinforce social norms, such as appropriate
dress, following the law, and regulating sexual behavior.
Causes for Religion as a Divisive Factor:
Religion is of great significance and plays a very predominant role in the society. It
has both positive as well as negative impact in the society. Positive in the terms
that it helps to regulate morality, powerful to regulate the society and even over of
time period practice of a religion also shaped itself and have a force of law It
impacts negatively by encouraging groupism, social clashes, fanatisms in society.
Various causes of the abovementioned topic are discussed below:-
1. Superiority of Practicing Religion:
All religious lay emphasis on love and humanity. But in practice religious
make people hate another. Religion instils in people the idea that those who
differ with their religious beliefs are evil and undeserving of association, or
even of their humanity. Thus, those who believe in a particular religion does
not like those who believe in other religion. This has divided mankind, and
has been one of the causes of bloodshed in the world.
2. Impact of Freedom Struggle:
All religions have different ceremonies, rituals, beliefs and practices. But
when such a man considers himself and his co-practitioners superior, he gets
intolerant of others’ beliefs and practices and starts hating them. Contrary
provisions of the various religions divide the citizens into different groups.
They think the people of other religion are their enemy and they may attack
their religion. This fear is one of the factor which make religion as a
divisible factor. The people of India during their freedom struggle became
keenly aware of their religious differences. These differences resulted in the
partition of India, which resulted into large-scale riots. Thus two separate
nations were formed on the basis of religion.
3. Religious Majority:
82% percent population of India are Hindus. Majority thinks there was
appeasement of minorities by Congress Governments and thus their share is
denied. The Bharatiya Janata Party, creating awareness among Hindus who
fear their religious majority is in danger of being treated like a minority in
officially secular India. Party leaders say they have no desire to establish a
religious state, but also maintain that Hinduism is the essence of the country.
The party’s public speaking for rising popularity has encouraged violent,
often deadly divisions.
4. Historical Causes:
Muslim invaders invaded India and settled over here. They were known for
their brutality and atrocities against Hindus. There were forced conversions.
Thus Hindus may get ill will against Muslims.
5. Inter-Religion Marriages:
India enacted Special Marriage Act 1954, where inter religion marriage is
allowed. But it was not accepted by the society, If any inter-religion

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 marriage has taken place the communities start the fights between each
other.
6. Elections:
Election procedure also provides scope for communalism. At the time of
choosing a candidate, caste and religion both are playing their own role. The
political parties to gain votes play nasty politics in the name of religion.
7. Psychological and Financial Factors:
Due to various factors minorities are economically and educationally
backward. But gradually a feeling developed among them that the majority
is responsible for their backwardness, which resulted in development of
inferiority complex among the minorities.
8. Impact of Mass Media:
In present ecosystem of mass and social media, rumours, fake news,
propaganda and hate speech coexist with sober media. The social media may
give rise to abuse, radicalisation and violent extremism.

Some major events which changed the way world viewed India were based
on communal frenzy viz. Babri Masjid demolition, the Gujarat riots, Delhi
(Sikh) riots.
Babri Masjid located at Ayodhya in Uttar Pradesh was demolished on
December 6, 1992 by kar sevaks under the guidance of some of our leaders
who are facing trial in the case. The demolition of the Babri Masjid made the
fabled respect for all religions that Indians have a thing of the past. The fact,
that a religious shrine of any religion could be demolished, raises questions
about the secularity of the people of the country as also the conviction of the
state towards secularism.
The Gujarat violence in 2002 is a matter of great shame for the country. The
fact, that people were massacred only on account of their belonging to a
particular religion, is unacceptable in any secular nation. The fact, that the
administration reacted late, also raises questions regarding the State’s belief
in secularism.
A similar incident, which happened about two decades prior to the Gujarat
violence, was the riots of Delhi in 1984. Sikhs were brutally slaughtered on
the streets of Delhi just because the person who assassinated the then Prime
Minister of India, Smt. Indira Gandhi happened to be a Sikh. It is ironic that
this killing happened to exact revenge for the death of the person who was
instrumental in incorporating the word ‘secular’ in the Indian constitution.

Conclusion
The religion in country have its role of uniting the people but it also creates
intra and inter religion conflict. The State in its role of guarantor of rights
has always taken a pivotal role in mediating between the issues concerning
the religion.

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 Unit 1 [Religion & Law]
Secularism : Meaning and its contribution in Indian Society
Introduction
Secularism is one of the important national goals. Though secularism has been an
official Government policy, bulk of people in India still remain non secular. The
English word “secular” is derived from the Latin word “SAECULUM” which
means "a generation," "a human lifetime," "an era of time," .
Secularism is an ideology that emphasizes the separation of religion from political,
economic, social and cultural aspects of life, religion being treated as a purely
personal matter. There are two possible models of secularism :
In the first one, there is a complete separation of religion and state to the extent
that there is an ‘impassable wall’ between religion and secular spheres. In such a
model, there is no state intervention of religious matters and vice versa.
In the other model, all religions are to be treated equally by the state; in other
words, the state is equi-distant from all religions. This model is also referred to as
‘nondiscriminatory’ and is particularly relevant for multi-religious societies.
In contrast to the former model, the latter allows for state intervention on grounds
of public order and social justice. The Sanskrit phrase ‘Sarva Dharma Sambhava’
is the most appropriate Indian vision of secular state and society.
Historical Background of Secularism
The French Revolution of 1789 popularized the idea of secularism. The French
constitution of 1791 introduced the idea of secular state for the first
instance.Secular traditions are very deep rooted in the history of India. Indian
culture is a blend of various spiritual traditions and social movements.
Emperor Ashoka was the first great emperor to announce, as early as third century
B.C. that, the state would not prosecute any religious sect.In his 12th Rock
Edict, Ashoka made an appeal not only for the toleration of all religion sects but
also to develop a spirit of great respect toward them.
In medieval India, the Sufi and Bhakti movements bond the people of various
communities together with love and peace.The leading lights of these movements
were Khwaja Moinuddin Chisti, Baba Farid, Sant Kabir Das, Guru Nanak
Dev, Saint Tukaram and Mira Bai etc.
In medieval India, religious toleration and freedom of worship marked the State
under Akbar. He had a number of Hindus as his ministers, forbade forcible
conversions and abolished Jizya. Even before Akbar, Babar had advised Humayun
to “shed religious prejudice, protect temples, preserve cows, and administer justice
properly in this tradition.”
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The constitution drafted by Pandit Moti Lal Nehru as the chairman of the
historic Nehru Committee in 1928, had many provision on secularism as: ‘There
shall be no state religion for the commonwealth of India or for any province in the
commonwealth, nor shall the state, either directly or indirectly, endow any religion
any preference or impose any disability on account of religious beliefs or religious
status’.
Gandhiji’s secularism was based on a commitment to the brotherhood of religious
communities based on their respect for and pursuit of truth, whereas, J. L. Nehru’s
secularism was based on a commitment to scientific humanism tinged with a
progressive view of historical change.
Great Indians like, the mughal king Akbar, social and religious reformers like Raja
Ram Mohan Roy and Swami Vivekananda respected the people of all religions.
Particularly Indian king Maharaja Ranjit Singh officially announced secularism as
the policy of his Government. He was successful in this regard. Ranjit Singh is
considered as a forerunner in implementing the idea of Secularism through
Government means.
It is necessary to have an idea of the nature and meaning of the term ‘secularism’.
It is interesting to note that there is no agreed and precise meaning of ‘secularism’
in our country.
Secularism Contribution in Indian Society
Indian philosophy of secularism is related to “Sarva Dharma
Sambhava” (literally it means that destination of the paths followed by all
religions is the same, though the paths themselves may be different) which means
equal respect to all religions. This concept, embraced and promoted by
personalities like Vivekananda and Mahatma Gandhi is called ‘Positive
secularism’ that reflects the dominant ethos of Indian culture.
India does not have an official state religion. However, different personal laws - on
matters such as marriage, divorce, inheritance, alimony varies with an individual's
religion. Indian secularism is not an end in itself but a means to address religious
plurality and sought to achieve peaceful coexistence of different religions.
India since its independence in 1947 has been a secular country. At the outset of
the making of the Constitution, the concept of secularism was not expressly
mentioned in the Indian Constitution. The term ‘Secular’ was added to the
preamble by the 42nd constitution Amendment Act of 1976, (India is a sovereign,
socialist, secular, democratic, republic).It emphasise the fact that constitutionally,
India is a secular country which has no State religion. And that the state shall
recognise and accept all religions, not favour or patronize any particular religion.
In the case of S R Bommai v. Union of India (1994), the Supreme Court confirmed
secularism as part of the Constitution where seven out of the nine judges confirmed
that secularism was one of the basic features of the Constitution. The court
elaborated on the meaning of secularism and said that secularism means equal
treatment of all religions.
However, the Indian Constitution has spelled out several provisions in Part
III(Fundamental Rights), Part IV(Directive Principles of State Policy),
and Part IVA(Fundamental Duties) that reflect the existence of secularism.

9
Article 14  It provides equality before the law and equal
protection of laws to all.

Article 16 (1)  It guarantees equality of opportunity to all citizens in

matters of public employment and reiterates that
there would be no discrimination on the basis of
religion, race, caste, sex, descent, place of birth, and
residence.

Article 25  It provides ‘Freedom of Conscience’, that is, all

persons are equally entitled to freedom of conscience
and the right to freely profess, practice, and
propagate religion.

Article 26  Every religious group or individual has the right to

establish and maintain institutions for religious and
charitable purposes and to manage its own affairs in
matters of religion.

Article 27  It provides that the state shall not compel any citizen
to pay any taxes for the promotion or maintenance of
any particular religion or religious institution.

Article 28  It allows educational institutions maintained by

different religious groups to impart religious
instruction.

Articles 29 and 30  They provide cultural and educational rights to

minorities.

Article 51A  It obliges all the citizens to promote harmony and the
Fundamental spirit of common brotherhood and to value and
Duties preserve the rich heritage of our composite culture.

42nd  The word secular was inserted in the Preamble. It

Constitutional stated that 'secular' means a republic in which there
Amendment Act, is equal respect for all religions.
1976

Advantage of Secular state:

Firstly, it eliminates from the body politic ideas of division between individuals
and groups on the basis of their faith and racial origin.
Secondly, That all must enjoy equal rights and no privileges,
Thirdly, Aristotle termed as ‘distributive justice’, the idea that all communities
must have power, as they must share the duties and responsibilities of being
citizens.

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Fourthly: Freedom to choose and practice your belief/faith/religion.
Fifthly: No state laws could be made against religious system. Finally: The major
problem is the position of religious personal law in the legal structure of present-
day India. That a Hindu, a Muslim, a Christian all citizens of the same country
should governed by different laws. In modern India is opposing the fundamental
principles of secularism. The state must try for uniform civil code. The state shall
also require a uniform civil Law and minority to be respected. Secularism is made
of aggregation rather than segregation, or separation.
Conclusion
India is the largest democratic and secularist country. The Indian Constitution in
theory and practice has wholeheartedly adopted the alien concepts of religion and
secularism. The need of the hour is creating secular society and not necessarily a
secular state, because secular state need not always imply secular society. As the
country has come a long way since independence to make a secular society.
However, steps like social reforms, religious tolerance, etc., need to be further
strengthened to achieve the goal of Constitution makers.

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 Unit 1 [Religion & Law]
Reform of the law on secular lines: Problems
Introduction
The constituent assembly which was constituted to frame a constitution for India
declared eight guiding principles of Indian constitution. Among these eight basic
and guiding principles of the constitution–Secularism is placed in fifth position.
To that extent the constitutional pandits gave importance for secularism. The idea
of secularism is essential to maintain unity in diversity. Secularism is a basic
ideology for the effective functioning of a healthy Democracy. When the Indian
constitution was adopted in January 1950, it has got sufficient provisions to
promote secularism. The Constitution of India firmly believes in the principle of
secularism.
The founding fathers of the Indian Constitution never hesitated to build India on
secular foundations. They opposed and defeated the amendment of Mr. H. V.
Kamath to invoke the name of god in the preamble of the Constitution. Pandit
Kunjru said that we invoke the name of God, but I am bold to say that while we do
so, we are showing a narrow, sectarian spirit, which is contrary to the spirit of the
Constitution.
The Indian Flag consists of Ashoka Chakra in its center. The wheel has many
spokes but, all are of equal length. It indirectly refers to the Indian stand on the
principle of equal treatment of all religions. (Sarva Dharma Sambava).
Although, the word ‘Secular’ was not there initially in the constitution, a mere
perusal of the various articles of it would amply demonstrate that ‘Secularism’ is
an integral part of the Indian constitution. The term ‘Secular’ was added to the
preamble by the 42nd constitution Amendment Act of 1976, (India is a sovereign,
socialist, secular, democratic, republic).It emphasise the fact that constitutionally,
India is a secular country which has no State religion. And that the state shall
recognise and accept all religions, not favour or patronize any particular religion.
At this juncture, it would not be inappropriate to have a glance at the relevant
constitutional provisions pertaining to secularism.
 Article 14 of the constitution provides for equality before law for all people.
 Article 15, inter alia, lays down that the state shall not discriminate any
citizen on the ground of religion.
In Nain Sukh Das v U.P. State,:The supreme court has held ultra Vires an
Act of State Legislature which provided for elections on the basis of separate
electorates for members of different religious communities. Any law
providing for elections on the basis of separate electorates for members of
different religious communities offends against Article 15.
 Article 16 provides for equality of opportunity in matters of employment
under the state, irrespective of religion.

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  Article 25 provides for freedom of conscience and the right to profess
practice and propagate the religion of one’s choice. The constitution not only
guarantees a person’s freedom of religion and conscience, but also ensures
freedom for one who has no religion, and it scrupulously restrains the state
from making any discrimination on grounds of religion.
 Article 26 provides freedom to manage religious affairs and
 Article 27 prohibits compulsion to pay taxes to benefit any religious
denomination.
The impact of Secularism can also be seen in Article 28, which states that no
religious instruction shall be provided in any educational institution wholly
maintained out of state funds. The analysis of the above said constitutional
provisions makes it amply clear that Indian secularism is unique and it treats all
religions alike.
In our country, judiciary is the guardian of the constitution and it has been held by
the Supreme Court that secularism is a basic structure of the constitution and it
cannot be altered by a constitutional amendment. Before looking into the Articles
in the Constitution that are supposed to interpret the idea of secularism, it will be
worthwhile to look into one important judgment given by the Supreme Court of
India viz. Kesavananda Bharati vs. Kerala case which was decided by a full
Constitutional bench of judges on April 24, 1973. By a water-thin majority of 7-6,
the Supreme Court held that the power to amend the Constitution under Article 368
couldn’t be exercised in such a manner as to destroy or emasculate the fundamental
features of the Constitution.
In identifying the features, which are fundamental and thus nonamendable in the
constitution was this statement – A secular State, that is, a State in which there is
no State religion (5(vii)). This was (probably) the first time that the concept of
secularism was interpreted by the Supreme Court. Here we get the first authorized
interpretation of the word “secular” as mentioned in our Constitution. So our basic
idea of being a secular state is that we do not have a ‘State religion’. The only other
place where the word secular appears in our Constitution is in Article 25 (2) (a)
while discussing the “Right to freedom of religion”.
An important amendment (Amendment 566) was moved in the meeting dated
December 03, 1948 by Prof. K.T. Shah. “The State in India being secular shall
have no concern with any religion, creed or profession of faith; and shall observe
an attitude of absolute neutrality in all matters relating to the religion of any class
of its citizens or other persons in the Union.”
CONCLUSION
Though there is reluctance on part of the legislature to bring reforms on secular
lines in religions, some reforms have seen the light of the day such as The Hindu
code Bills, Amendments in the Archaic Indian Divorce Act 1869, Muslim Women (
Protection of Rights on Divorce) Act 1986( Though this Act was passed to subvert
the reforms of the Shah Bano case, the Supreme Court in Danial Latifi gave it a
reformist interpretation while upholding its constitutional validity.), Hindu
Succession ( Amendment ) Act,2005 and the much recent Muslim Women
(Protection of Rights on Marriage) Act,2019. The Courts in India have been doing
a balancing act in this regard and one can only hope that in coming times more of
such reforms will come into existence.
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 Unit 1 [Religion & Law]
Freedom of religion and non-discrimination on the basis of religion

Introduction
India, is a land of multiple religions and sects for centuries and the diversity of
faiths and sects in India is unparalled in the world. India, for centuries has abided
by its commitment to accommodate and allow all the religions in her geography to
flourish and prosper. Being a secular state and it works upon the principles of the
constitution, which is the grundnorm of the state. The Indian Constitution, adopted
on 26th January 1950, enshrines several fundamental rights that form the bedrock
of India’s democratic fabric. Among these, the rights to freedom of religion and
non-discrimination on the basis of religion occupy a pivotal position, reflecting
India’s commitment to secularism and pluralism. These rights are safeguarded
through specific articles and have been further elucidated through landmark
judicial decisions.
Freedom of religion under Article 25
Article 25 of the Constitution of India guarantees to every citizen the right to
profess, practice and propagate religion. This provision ensures that every
individual has the liberty to follow any religion of their choice without any
hindrance from the state or any other entity.

Freedom of religion under Article 25 encompasses three essential components:

1. Freedom of Conscience: Every individual has the right to hold and believe
in any religious faith or belief.
2. Right to Profess: Individuals have the right to publicly practice and
manifest their religion.
3. Right to Propagate: The right to spread one’s religion and convert others to
one’s faith, subject to certain restrictions.
The freedom of conscience is absolute inner freedom of the citizen to mould his
own relation with God in whatever manner he likes. When this freedom becomes
articulate and expressed in outward form it is to profess and practice religion. To
profess religion means to declare freely and openly one's faith and belief. To
practice religion is to perform the prescribed religious duties, rites and rules. To
propagate means to spread and practice his view for enlightening others. The right
to propagate one's religion is not a right to convert other to one's own religion.
Shirur Mutt Case (1954): In this case, the Supreme Court held that the term
‘religion’ under Article 25 includes rituals, practices, and observances that are

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integral to a particular religion. The court emphasized the autonomy of religious
denominations in matters of faith and doctrine.
Durgah Committee, Ajmer v. Syed Hussain Ali (1961): The Supreme Court
reiterated that the freedom to manage religious affairs is an essential part of the
right to religious freedom under Article 25. The court upheld the autonomy of
religious institutions in matters of administration and management.
In Bijoe Emmanuel v. State of Kerala (AIR 1987 SC 748) also known as National
Anthem case, the Supreme Court has upheld the religious belief of the Jehovahs
witness, a Christian community not to praise anybody but for his or her own
embodiment of God. In this case the children of Jehovahs witness were expelled
from the school for refusing to sing the National Anthem. The Supreme Court held
their religious practice was protected under Article 25. Chinnappa Reddy, J.,
observed “that the question is not whether a particular religious belief or practice
appeals to our reason of sentiment but whether the belief is genuinely and
conscientiously held as part of the profession or practice of religion. Our personal
views and reactions are irrelevant. If the belief is genuinely and conscientiously
held it attracts the protection of Article 25 but subject, of course, to the limitations
contained therein”.
But Supreme Court has made it clear that state can have no power over the
conscience of individual – this right is absolute. The THE BHARTATIYA NYAYA
SANHITA, 2023 (sections 298-302 BNS) makes it a crime to injure or defile a
place of worship or to disturb a religious assembly etc. even though these actions
might be sanctioned by offender’s own religion. Practices like devadasi, sati may
have religious sanctions but the state still has constitutional power to ban them.
Art. 25(2) grants to the state broad, sweeping powers to interfere in religious
matters. This reflects peculiar needs of the Indian society. The extensive
modification of Hindu personal law has been by legislation based on this provision.
Art. 25(2) thus authorizes the state to regulate any secular activity associated with
religion, to legislate social reforms.

Article 25 gives freedom for all to practice any religion they want. This is a basic
right guaranteed in the Constitution. Article 26 (Freedom to manage religious
affairs), Article 27 (Freedom as to payment of taxes for promotion of any particular
religion) and Article 28 (Freedom as to attendance at religious instruction or
religious worship in certain educational institutions) can be considered as the
interpretations of the principle of secularism in the constitution.
Restrictions on the freedom of religion
a. Restrictions to the enjoyment of Right to Religion:
The right to religion guaranteed under Article 25 is not an absolute right, like other
rights this right too can be restricted for the purpose of maintaining public order,
morality and health.
In addition Article 25 further exceptions are engrafted by clause (2) of the Article.
Sub-clause - (a) of clause (2) saves the power of State to make laws regulating or
restricting any economic, financial, political or secular activity which may be
associated with religious practice and sub-clause

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(b) reserves the State's power to make laws for providing for social welfare and
social reform even though they might interfere with religious practices.
In S.P. Mittal v Union of India, the Government enacted the Auroville
(Emergency Provision) Act, to take away the management of Aurobindo Society
property on the ground of mismanagement of affairs. The petitioners challenged
the validity of the said Act on the ground that it violates Articles 25 and 26 of the
Constitution. The Court held that teachings of Aurobindo did not constitute
'religion' and therefore taking of Aurobindo Ashram did not infringe the Society's
right under Articles 25 and 26. It further held, even if it was assumed that the
Society were a religious denomination, the Act did not infringe its rights under
Articles 25 and 26. The Act has taken only the right of management of property of
Auroville, in respect of secular matters, which can be regulated by law.
Also, in Mohd. Hanif Quareshi v State of Bihar, the petitioner claimed that the
sacrifices of cows on the occasion of Bakr-Id was essential part of his religion and
therefore the State law forbidding the slaughter of cows was violative of his right
to practice religion. Court rejecting the argument held that sacrifice of cow on
Bakr-Id day was not essential part of the Mohamedan religion and hence could be
prohibited by State under Clause 2(a) of Article 25. In a another case State of West
Bengal v Ashutosh Lahiri, the Supreme Court held that slaughter of cows on
Bakrid day is optional and not obligatory. It is not essential or required for
religious purpose of Muslim. Article 25 deals with essential religious practices.
b. State Acting towards Social Welfare and Social Reforms:
Under clause (2)(b) of Article 25, the State is empowered to make laws for social
welfare and social reforms. Under this the State can eradicate those evil practices,
which are under the guise and name of the religion.
Example, the devadasi system, the Sati system etc. The State can throw open
Hindu religious institutions of public character to all Hindus. Article 25(2)(b)
enables the State to take steps to remove the untouchability from amongst Hindus.
But this does not mean the right is absolute and be unlimited. The Supreme Court
in Shastri Yagnapurushdasji v Muldas Bhundardas Vaishya makes it clear that
the State cannot regulate the manner in which the worship of the deity is
performed.
Whereas it justifies banning of polygamy amongs hindu in State of Bombay v
Narasu. What the Courts have tried to do is to separate 'religious' activities and
'social and secular' activities, the former are protected under Article 25 the latter
are not.
In Ismail Farooqi v Union of India, ((1994) 6 SCC 360) the Supreme Court has
tried to differentiate between "essential parts" of religious practice. It has held that
offer of prayer or worship is a religious practice; its offering at every location
where such prayers can be offered would not be essential religious practice. What
is protected under Articles 25 and 26 is a religious practice, which forms an
essential part of religious practice. Thus, a place of worship may be acquired by the
State in exercise of its supreme power. Thus places of worship be it temples,
mosques or churches can be acquired.
Right to Manage Religious Affairs under Article 26

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Definition:
Article 26 of the Constitution grants religious denominations the right to manage
their religious affairs, subject to public order, morality, and health.
Key Provisions:
 Establishment and Maintenance of Institutions: Religious denominations
have the right to establish and maintain institutions for religious and
charitable purposes.
 Management of Religious Affairs: Denominations can manage their own
affairs in matters of religion.
 Ownership and Administration of Property: They can own and acquire
movable and immovable property and administer it in accordance with the
law.
In S.P. Mittal, the Supreme Court held that the term ‘religious denomination’ in
Article 26 must be understood in the context of ‘religion’, and the rights granted
under this article pertain to organized religious bodies with a common faith and
organization.
Non-Discrimination on the Basis of Religion
Article 15 of the Constitution prohibits discrimination on grounds of religion, race,
caste, sex, or place of birth. This article ensures that every citizen is treated equally
and does not face any discrimination based on their religious beliefs.
Definition:
Non-discrimination on the basis of religion implies that individuals should be
treated equally and without prejudice, irrespective of their religious affiliations.
This entails equal access to opportunities, services, and protections under the law
for all citizens, regardless of their religious background.
International Perspective
Universal Declaration of Human Rights (UDHR), 1948:
Article 18 of the UDHR recognizes the right to freedom of religion, emphasizing
the freedom to practice, propagate, and change one’s religion or belief.
Civil and Political Covenant, 1966:
Article 18 of the Covenant reiterates the right to freedom of religion, with
limitations prescribed by law to protect public safety, order, health, morals, or the
fundamental rights and freedoms of others.
Declaration on Religious Discrimination, 1981:
This Declaration affirms the right to freedom of religion and prohibits coercion that
impairs an individual’s freedom to adopt a religion or belief of their choice.
Conclusion
Freedom of religion and non-discrimination on the basis of religion are
fundamental pillars of the Indian Constitution, reflecting India’s secular ethos and
commitment to pluralism. While the Constitution provides a robust framework for
protecting these rights, the role of the judiciary in interpreting and upholding these
provisions cannot be understated. Through its landmark judgments, the Indian
judiciary has reinforced the principles of religious freedom and equality, ensuring

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that these rights are not mere textual provisions but are effectively enforced in
practice. As India continues to evolve as a pluralistic society, these constitutional
rights will remain integral to maintaining harmony, peace, and unity among its
diverse populace.
The Indian Constitution meticulously balances the freedom of religion with the
state’s responsibility to ensure social welfare, morality, and public order. While
individuals are granted the freedom to practice and propagate their religion, the
state is empowered to intervene to eliminate harmful practices and promote social
reform.
Unit 1 [Religion & Law]
Religious Minorities and the law
Introduction
Franklin Roosevelt once said that no country can survive for long unless and until
it accepts the very basic fundamental that democracy can only exist when the rights
of the minorities are being recognized. Considering that democracy cannot be
without minorities and where there is no democracy the question of minorities does
not arise at all. The amount of confidence and security enjoyed by minorities and
democratic countries is a ground upon which the interdependence of minorities in a
democracy can be laid. India is a civilized country. The pillars of this great
civilization are its nature of accepting diversities.
According to a report of UN, the estimated population in India in 2019 was 136.6
crore out of which 80.5% of Hindus, 13.4% are Muslim, 2.3% of Christians, 1.9%
are Sikhs, 0.8% are Buddhists, 0.4% are Jains and 0.6% are others. Minorities,
therefore, are a group of people who are secluded from society just because
another group of people is more in number and minority groups are in a non-
dominant position than a majority group. Therefore they feel suppressed and it's
evident for them to feel the way they feel in a democratic country.
What are religious minorities ?
Religious minorities refer to groups of people belonging to religions or
religious beliefs less widely practised than the major religions in their society
or country. The concept of religious minorities exists in almost all parts of the
world. People have held different religious beliefs and faiths since the beginning of
civilization. As certain religions grew larger and became dominant in regions, other
religions became considered minorities. Religious minorities often face
discrimination and challenges in practising their faith freely.
India, being the world's second-most populous country is home to millions of
people from different religions. Religious freedom has been explicitly protected
under the Constitution of India. Despite the provisions there have been many
instances of abuse of religious freedom in India, which had attracted international
attention. The protection of religious freedom has been stated under Article 25 of
the Indian Constitution that all persons are equally entitled to enjoy freedom
and have the right to practice any religion.
India is home to many religious minorities like Muslims, Christians, Sikhs,
Buddhists, and Jains. The Constitution of India provides several safeguards and

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protections for religious minorities in the country. Some of the key constitutional
safeguards are:
* Right to Freedom of Religion: Article 25 of the Constitution guarantees the
right to freely profess, practice, and propagate any religion. This right is available
to all citizens, including minorities.
* Ban on Religious Discrimination: Article 15 of the Constitution prohibits
discrimination against any citizen on grounds of religion. Both the state and private
individuals are barred from such discrimination.
* Equality before Law: Article 14 ensures equality before the law and equal
protection of laws for all, including religious minorities. This ensures minorities
can equally access justice and government services.
* Non-discrimination by the State: Article 16 prohibits the state from
discriminating against any citizen in public employment on grounds of religion.
This ensures religious minorities get equal opportunities in government jobs.
* Cultural and Educational Rights: Article 29 grants minorities the right to
conserve their distinct language, script, and culture. Article 30 gives minorities the
right to establish and run their own institutions.
* Safeguard Clause: Article 30(1A) states that the right of minorities to establish
educational institutions refers to the linguistic or religious minority. This
safeguards the interests of religious minorities.
* Special Provisions: Article 30(2) allows the state to make special provisions for
the advancement of religious minorities. Various schemes have been launched to
support minority groups.
* Fundamental Duties: Article 51A directs citizens to promote harmony and
goodwill between religious groups.This would foster a spirit of mutual respect
between the majority and minorities.
National Commission for Minorities: The NCM looks into complaints from
minorities regarding the deprivation of rights and safeguards. It advises the
central government on relevant policy matters.
These constitutional safeguards have helped ensure religious minorities in India
can practice their faith freely and equally participate in all spheres of life.
Case Law - St.Stephens College vs University of Delhi (AIR 1992 SC 1630)
St.Stephens College at Delhi affiliated to D.U..The Institution under minority
institution giving priority to Christian students. For the academic 1980-81 invites
applications from the students reserving 50% of the seats to the Christian students.
The V.C of D.U intervened and issued a circular that admissions shall be made on
merit basis depending upon the marks obtained by the students in Entrance
Test.The management of Stephens college filed writ petition The supreme court
admitted the writ petition and gave judgement infavour of Institution and directing
the Vice-Chancellor not to interfere.
D.A.V. College,Bhatinda vs State of Punjab (AIR 1971 SC 1731): The Punjab
University prescribed Punjabi in as the sole and exclusive medium of instruction.
Arya Samajists residents of Punjab objected that this condition affected their right
under Article 30.The supreme Court held that Arya Samajis who are religious and

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also a linguistic minority cannot be compulsory to learn Punjabi. The supreme
Court opined that Punjab University can Prescribe Punjabi as a medium of
Instruction but can not prescribe it is an exclusive medium to teach in Punjabi or
take examination in Punjabi.
Conclusion
While challenges and issues remain, the strong foundations laid by India's secular constitution
have undoubtedly helped protect and empower religious minorities over the decades. Continued
efforts are needed to fully realize the principles of equality, justice, and religious tolerance
envisioned in the constitution of India.

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