This is transcript of video lectures from the series of [[15 Video Lectures on Indian Constitution]] **Navigate to other lectures in this series:** [[Introduction to Indian Constitution]] | [[Constituent Assembly Debates]] | [[Preamble of Indian Constitution]] | [[Citizenship in India]] | [[Right to Equality]] | [[Reservation Policies and Indian Constitution]] | [[Freedom of Speech & Expression]] | [[Right to Life and Personal Liberty]] | [[Freedom of Religion]] | [[Rights of Minorities]] | [[Directive Principles]] | [[Fundamental Rights, Directive Principles & Fundamental Duties’ Relationship]] | [[Union Executive Powers & Position of President & Prime Minister]] | [[Indian Judiciary]] | [[Constitutional Amendments & the Basic Structure Theory]] # Chapter 9 - Lecture 9 By Prof. (Dr.) Faizan Mustafa Hello, welcome to the online course on Indian Constitution offered by Nalsari University of law and sponsored by Ministry of Law and Justice Government of India. In the last lecture, we talked about Article 21 and 22 that is right to life and personal liberty and rights of people who are arrested. Today we are going to talk about a very important fundamental right that is freedom of religion. We would cover articles 25 to 28. We would also make a reference to Article 44 that is uniform civil code and look at what are the restrictions which can be imposed on freedom of religion. Now what is the importance of religion? Religion has been at the center of human society's existence since time immemorial. The Indian society displays a manifest tendency towards an outlook that is predominantly religious. And that is why Sir Harcoot Butler has said the Indians are essentially religious as Europeans are essentially secular. Religion therefore is still the alpha and the omega of Indian life. Now what are the guiding principles of freedom of religion? From where we have got this freedom of religion, the Hindu concept of serve Dharma Sambhav, the idea of all religions are true, justifies tolerance and accommodation of distinctive religious identities. The concept of equality, a sameness of all religions was inspired by this doctrine, Sir Harcoot Butler, accordingly no one religion is given preference in India or another religion. Therefore under Indian constitution freedom of religion is premised on the belief that every human being has inherent dignity to explore his or her conscience and pursue the truth. Now what does freedom of religion achieve? What are the benefits of freedom of religion? If we give freedom of religion we achieve solidarity. The word used for solidarity in the preemble of Indian constitution is fraternity. We have already said in our lecture on preemble that we do not talk about fraternity, the idea of concept of brotherhood and sisterhood. Gandhi ji was convinced that genuine religion which to him was a personal affair in its true, complete and virtuous form constructed bridges of solidarity between people. Let religions unite people, not divide people. And this was an important observation coming from our father of nation because our country was ravaged by partition. Our framers of the constitution hoped that liberty of belief, faith and worship would promote fraternity, hoping that it would create conditions ripe for peace and harmony. Is freedom of religion really beneficial for the country? Yes, because religious practice promotes the well-being of individuals, families and the larger community. It turns out that the practice of religion has a significant effect on the happiness and overall sense of personal well-being. Happy people tend to be more productive and lawy-biting. They make good citizens. Religious people are likely to be more honest due to the fear of God. Of course some religious fanatics are also corrupt and do indulge in all kinds of immoral things. The word Dharma under our ancient culture means righteousness. What is religion therefore? Religion to us is to do right. It is to serve humanity. What is religion? No precise definition is possible. Professor White had defined religion as what the individual does with his own solitaryness. Dr. S. Radha Krishna, who was our president, said that religion is the code of ethical rules. And it also means rituals, observances, ceremonies and modes of worship which are its outer manifestations. Now what is the relationship of religion with the state? The kind of relationship state will have with religion will determine whether we are a theocracy or we are a secular state. Secularism in India, unlike the West, was not aimed at creating a wall of separation between church and state. We Indians do not believe in the two-sword theory that religion and state cannot be together. Taking the American experience as the referring point of secularism, it can be argued that secularism is an alien concept for India as we did not have similar historical experience where religion and state had been at loggerheads in Europe. Therefore if you look at our ancient Hindu society, we were largely secular. This word was inserted by the 42nd Amendment in 1976. But simultaneously we should also remember that we also did not include word God in our preamble. In our discussion on preamble, I talked to you about several constitutions, more than 60 constitutions in the world which start in the name of God. In India we rejected this proposal and we said we will not start our constitution in the name of God. What after all is secularism? Secularism was presented perhaps as the only option to regulate intergroup behavior due to circumstances of post partition India. The fear in the framers of Indian constitution was, Pakistan has been created. We are now left with some minorities because majority of Indian Muslims refuse to go to Pakistan. Now these people should not think that India has now become a state of Hindu majority. And therefore to assure them that their freedom of religion, their right to worship, their cultural rights will remain protected. The framers of Indian constitution so drafted our constitution that even without what secular we were a secular state. And that's why in 1973 in Keshav Anandh Bharati case when what secular was yet not there in the preamble, Supreme Court of India held that secularism is the basic structure of Indian constitution. So we did not become secular after 1976. We were secular from day one. What kind of secularism therefore we have created? Indian state is religion neutral. It respects all religions. It maintains equidistance from all religions. It has no religion of its own. But people are free to follow whatever religion they want to follow. What is freedom of religion under Indian constitution? Articles 25 to 28 deal with freedom of religion. Articles 25 talks of freedom of religion of everyone. Individuals freedom of religion. And look at the generosity of framers of Indian constitution. Unlike article 19 writes which are given only to the citizens when it comes to freedom of religion we have given this right even to foreigners. Freedom of conscience has three crucial rights. What are these three crucial rights? Right to profess any religion. Right to propagate one's religion. Right to practice one's religion. Let us discuss it in some details. What restrictions state can impose on freedom of religion? I think the very opening words of article 25 give us an indication that freedom of religion has to operate in a very very restricted narrow territory. Unlike other fundamental rights. Freedom of religion has been subordinated to public order, health, morality and other provisions of part three which means all other fundamental rights. No fundamental right has been subordinated to all other fundamental rights except freedom of religion. Because religions are old. We want to create a society which is modern and progressive which believes in the spirit of inquiry and scientific temper. Therefore if there is a conflict between right to equality and freedom of religion right to equality would prevail. If there is a conflict between freedom of speech and freedom of religion freedom of speech shall prevail. Going forward to the powers state has in respect of freedom of religion. State can through law regulate any economic financial, political or other secular activity which may be associated with religious practices. State can make a law providing for social welfare and reform or throwing open of Hindu religious institutions of public character to all classes and sections of Hindus. Why this provision? Because untouchables historically in India were not allowed entry in the Hindu temples. Accordingly several temple entry laws had to be enacted. In article 17 untouchability had to be abolished. But look at article 25 only public temples are covered. Private temples are not within the mandate of article 25. You must be aware of huge controversy about the entry of women in Sabri Malat temple of Lord Ayapa. Historically and culturally women are not allowed there. Women of certain age. The matter went up to the supreme court. Supreme court permitted entry of women. Why? Because court said devotees of Lord Ayapa are not distinct sect of Hinduism. Moreover the court said if you look at article 25 entry of Hindu temples has been guaranteed to all sections of Hindus. Women constitute a section of Hindus and therefore they must be permitted. In the recent Kerala election number of political parties were referring to the supreme court judgment. Some in favor of judgment others opposing the judgment. But supreme court itself had agreed to review Sabri Malat judgment. And the matter has been referred to a larger bench which could not hold hearings due to COVID-19. Since a reference has been made to term Hindu in article 25 we must understand who is a Hindu. Article 25 does not talk of any religious community other than Hindus. It defines Hindus because Hindu temples were open for all classes of Hindus. And therefore who is a Hindu is necessary. Hindu definition in article 25 is not in terms of beliefs and doctrines of Hindu religion. It is an inclusive definition that tells us who is included amongst Hindus. It does not tell us these are the fundamental beliefs which a person should have to be called a Hindu. No. What it merely says 6 Jans but this are included within the term Hindu. Hindu Maryject Hindu Succession Act in their definitions of term Hindu include any person who is Hindu by religion in any of its forms or developments including Vir Shaveya, Alingayat or a follower of Abraham Pratna or RS Amaj. And any person in India who is not a Muslim, who is not a Christian, who is not a Parse or who is not a Jew is considered as Hindu. That brings me to the whole question does freedom of religion and a right to propagate religion include right to converts others to your religion. The state forward simple answer is no. What propagate was indeed inserted in article 25 on the demand of the Christian members of the Constantine assembly. Christian members were very insistent on the inclusion of word propagation because it is the central tenant of Christianity. If you look at international human rights law, article 18 of Universal Declaration of Human Rights is specifically mentions this word. It says everyone has right to freedom of thought, conscience and religion. This right includes freedom to change his religion or believe. Similarly, article 18 of International Covenant Civil and Political Rights says everyone shall have freedom of thought, conscience and religion. This right shall include freedom to have or to adopt religion or believe of his choice. His use of loud speaker permitted under freedom of religion. The answer is no. No religion prescribes that prayer should be performed by disturbing the peace of others. Nor does any religion preach that they should be through wise amplifier or beating of drums. Religions are old, this technology is new. In the case of Church of God in India versus KKR Majestics, Kulan, Welfare Association, 2000 Judgment. Supreme Court said others have right not to be disturbed. In 2020, Alahabad High Court held Muslim Azan is not an essential Islamic practice. What are the rights of religious denominations and religious sects? If article 25 was talking about right to profess, propagate and practice religion in terms of rights of individuals, article 26 talks of freedom of religion, of religious denominations or any section thereof. Almost all religions in the world have various sects and sections, which differ from the primary religion. So Hinduism has many sects like Shivaites, Vesnavites, Shaktism, Islam has several sects of Sunnis and Shias. Christianity to has sects like Roman Catholics, Orthodox, Protestants, Jehovah Witnesses. Buddhism has sects like Mahayana and Hinyana, rights under article 26 are subject to public order, morality and health. What is the major difference? While we were talking of individuals right to religion, we had subordinated it to all other fundamental rights. When it comes to rights of a religious group, a religious denomination or any section thereof, it has not been subordinated to other fundamental rights. Article 26 confers following rights. One, every religious denomination or any section thereof shall have a right to establish and maintain institutions for religions and charitable purposes. Two, to manage its own affairs in matters of religion. Every religious group has a right to manage its own affairs in matters of religion. Thirdly, to own and acquire immovable property and for to administer such property in accordance with law. Some states have enacted Hindu religious and charitable endowment laws. Tamil Nadu was first such a state followed by Karnataka and other states. Now these laws establish temple boards to manage certain temple properties. An argument is made that these laws are in the teeth of secularism. The validity of these laws was upheld because the court said that to administer such property in accordance with law. You have a right to own and acquire immovable property but you will administer it in accordance with law. And if there is a law called Hindu religious and charitable endowment act, then your property is to be administered under that law in accordance with that law. The courts have also said noticing that there has been mismanagement of religious properties that no religious denomination has a right to mallet administer properties. It must be remembered that whenever there is a mallet administration, state can take over the management. But article 31 clearly says such a take over by the state must be only for a limited period. When Hindu temple property is taken over, it is vested in the state. No, property remains vested in the duty and the board which is constituted cannot have any non-Hindu as a member. And those properties are to be used only for Hindu temples. State similarly controls Muslim Wakh properties through the Wakh X and state has a power to dissolve Wakh bodies or Wakh boards. The other crucial expression in article 26 is that religious denominations or any section thereof have a right to manage its own affairs in matters of religion. And therefore religions may say article 26 this gives us this right. Matters of religion we will manage the way we want. Supreme Court of India said no. Your right to manage your religious affairs should also be curtailed because everything and anything which your religion may ask you to do may not be permitted in a modern liberal progressive India. And therefore, Supreme Court innovated a new doctrine called essentiality doctrine under which the court determines what are the essential religious practices. And every religious community is entitled under article 26 only to practice and follow essential religious practices. When temple entry laws were challenged entry of certain sections of people into Hindu temples were challenged. Supreme Court said untouchability is not an essential Hindu practice. Similarly the courts have said that triple talakh is not an essential Islamic practice as it is not mentioned in Quran. The triple talakh was not protected because Supreme Court said three pronouncements in one go are not an essential Islamic practice. Triple talakh is not mentioned in Holy Quran. Similarly when some Muslim police officer wanted to have a beard the court said having a beard is not an essential Islamic practice. Now central government has made pronouncement of three divorces in one go as a criminal offense punishable with three years imprisonment. Can there be a religious text since we are a secular state there cannot be a religious text. Article 27 says no person can be compelled to pay any taxes. The proceeds of which are is specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. The issue of Huch subsidy has been discussed in public domain for years. Supreme Court in Prasul Ghoradiyya versus Union of India. 2011 judgment upheld the constitutional validity of Huch subsidy which is given to Air India because Air India has been given the exclusive rights to transport the country. The Supreme Court said since a small amount of income tax is used for this subsidy it is not unconstitutional under Article 27. In 2012 another bench led by Justice Aftavalam held that though Huch subsidy is constitutional but it should be done away with in 10 years. Can there be religious instructions on prayers in educational institutions? The answer is yes and the answer is no because it all depends on the type of educational institution you are talking about. Is it a fully funded institution funded by the state or is it state recognized or is it an educational institution created or established under some trust? Article 28 lays down no religious instruction shall be provided in any educational institution which is wholly maintained out of state funds. So if it is a government institution 100% funded by the state no religious instruction whatsoever can be provided. But religious instruction can be provided in institutions maintained by the state if such an institution was established by a trust or under an endowment that requires religious instruction being parted. So if some trust has originally established some institution that trust requires that every morning there will be religious prayer. Now state is maintaining that institution. Religious instruction can be imparted then. Then thirdly institutions receiving aid or recognized by the state they may not receive aid but if they are recognized by the state cannot impart any religious instruction or require attendance at any religious worship without the consent of the parents or students. Many of us who had gone to Christian institutions know that they do hold prayers in the morning but to hold such prayers they take consent of the parents. Finally let me briefly discuss uniform civil code and personal laws. Mughals did not interfere with the Shastrik Hindu law and allowed Hindus to be governed by their religious laws in their religious courts. British continued this policy and did not interfere in the personal laws of religious communities. But realizing that personal law provisions were arbitrary were in human. British did initiate reforms and Islamic criminal law was replaced with modern and humane criminal reforms in the form of Indian penal code, code of criminal procedure Indian evidence act. Hindu law reforms committee was established in 1941 and after independence we enacted Hindu code bill which reformed Hindu law. Article 44 which is a directive principle asked states to endeavor to have a uniform civil code. Unfortunately so far no draft of uniform civil code has been prepared and no expert committee like Hindu law reforms committee has been constituted. In triple the law judgement CGI J.S.K.H. held that right to follow personal law is part and parcel of freedom of religion. The biggest question is is personal law law within the meaning of Article 13 because if it is law then if it is contrary to any fundamental right it is to be stuck down. Both in Sabri Mala as well as in triple the law judgement of Shaira Bano supreme court left this question open for future decision. What did therefore we learn today? Freedom of religion has been guaranteed to everyone including foreigners. This is a highly restricted freedom and can be controlled by the state in a big way. This freedom does not include right to convert therefore forcible convergence are not protected by Article 25. There can be no religious texts in India and there cannot be any religious prayer in a fully funded educational institution. Or in an educational institution which receives state aid or which is recognized by the state without the consent of the parents and their students. In the next lecture we will talk about another very important fundamental right which led to lot of cases rights of minorities. See you then. Thank you very much. ---  *Disclaimer: I am not asserting any claim over this content. The content is entirely from the Ministry of Law & Justice and NALSAR University of Law's joint online course on the Indian Constitution. My effort has been to make the transcript available for people like myself who prefer to read or quote it rather than to listen. This is part of my public self-archiving project. For more details, see [notes.daktre.com](https://notes.daktre.com) or [daktre.com](https://daktre.com).* Last updated: 2026-02-21 22:41