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A Short Note on Articles 25(1) And 26(B) of the Indian Constitution



Interpretation of Article 25(1):


Article 25(1) guarantees, subject to public order, morality and health, the “freedom of conscience” and “the right freely to profess, practice and propagate religion” to every person. Article 25(1) has three defining features: (1) the entitlement of all persons without exception; (2) the recognition of equal entitlement; (3) the acknowledgement of both of the freedom of conscience and the right to profess, practice and propagate religion.[1]


Freedom of ‘conscience’[2] is an absolute inner freedom of the person to design his own relation with god in whatever manner he likes. This gives every individual the independence to offer prayers to the god. Here, every person is not only free to entertain any religious belief as may be approved by his judgement and conscience, but also is free to manifest his belief in outward acts as he thinks proper to propagate.[3] This religious freedom is subject to public order, morality and health. All the three words, that is, order, morality and health are qualified by the word ‘public’.[4] The word “religion” used in Article 25(1) of the Constitution is personal to the person having faith and belief in the religion which protects the right to worship and modes of worship of all individuals.[5] The free practice of religion under this Article carries the idea that it can be practised anywhere and not at any particular place.[6] But, if a particular place has a ‘particular significance for that religion’ then, access to that place for the sake of worshipping is protected under Article 25(1).[7] If a group of individuals who take part in a religious practice and believe in its religious efficacy in the sense that by performing such a practice, they are making themselves the object of the bounty of some superhuman power, it must be regarded as religious practice entitled to protection under Article 25(1).[8] It is a matter of choice given by this article to the individual to decide what he considers to be the matters of ultimate concern for himself and for the society.[9] A person can claim this personal freedom under Article 25(1) for himself at will and at all times and can exercise it individually with or without his co-religionists.[10]



Interpretation of Article 26(B):


Article 26(b) of Constitution of India lays down that every religious denomination or a section thereof has the right to manage its own affairs in “matters of religion”, giving special protection to religious denominations. The expression “religious denomination” must fulfil three conditions, namely, (1) a collection of religious faith; (2) a common faith; (3) a designation by a distinctive name.[11]


Further, in case of a denomination, there must be a common faith of the community based on religion, and the community members must have common religious tenets distinct to themselves.[12] The basic cord which connects them, should be religion and not merely considerations of caste or societal status.[13] The expression ‘matters of religion’ occurring in Article 26(b) of the Constitution includes practices which are regarded by the community as part of its religion.[14] Each and every religious denomination is given complete autonomy to decide as to what rites and ceremonies are essential according to the tenets of the religion they hold.[15]



Protection under this Article only extends to essential religious practices:


Essential part of a religion implies the central belief upon which a religion is established and those practices that are major to follow a religious belief. It is upon the foundation of essential practices that the superstructure of religion is built, without which a religion will be no religion’[16].It is the duty of the State to secure the essential religious practices of a religion.[17] In deciding the essentiality of a practice, it is vital to consider whether the practice is endorsed to be of a required nature within that religion.[18] If a practice is discretionary, it has been held that it cannot be supposed to be essential to a religion.[19] Test to decide whether a part or practice is essential to the religion is to see if the idea of religion will be changed without that part or practice.[20] The Court cannot meddle with the matters which are essentially religious yet the Court has the right to decide if a specific ritual or practice is viewed as essential based on the precepts of a specific religion.[21] What comprises of an integral or essential part of religion must be resolved based on the doctrines, practices, tenets, historical background etc. of the given religion.[22]


Limitations to Article 25(1) And Article 26(B):


1.The fact is that though Article 25(1) deals with rights of individuals, Article 25(2) is much wider in its contents and has reference to the rights of communities, and controls both Article 25(1) and Article 26(b).[23] When there is a clash between the protection of denominational rights and the right given to State under Article 25(2), the latter prevails against the former.[24] Under clause (2)(b) the State can eradicate religious practices which stand in the path of the country’s onwards progress.[25] Laws that are made for social welfare are not seen as affecting the nature of any religion.[26] Article 25(2)(b) declares that in a conflict between the need of social welfare and religious practice, social welfare must take over.[27] It is contended that certain religious practices, even though regarded as religious, maybe merely superstitious beliefs and may, in that sense be only unnecessary accretions to religion itself.[28]


2. The Article 25(1) is also subject to the provisions of the Part III of the Constitution. The right given to every religious denomination under Article 26(b) is alongside the other individual freedoms provided by the Constitution.[29] This right given to religious denomination, must be read in a manner which preserves equally the rights of the individuals and such a condition is necessary so that all the rights go in harmony with one another. The requirement of constitutional conformity is very important and if a religious practice is outside the protective umbrella given by Articles 25(1) and 26(b), the law would certainly take its own course.[30] The constitutional legitimacy, naturally, should be allowed to supersede all religious beliefs and practices.[31]


Conclusion:


Articles 25(1) and 26(2) strike a balance between guaranteed freedom of conscience to commune with his cosmos, creator and realise his spiritual self and the right to religious belief and faith and their intrinsic restrictions in matters of religion, religious beliefs and practices.[32] Sometimes balancing this religious freedom becomes an arduous task for the State. On one paradigm, religion is the belief which binds spiritual nature of men to super-natural being. It includes worship, belief, faith, devotion, etc. and extends to rituals.[33] In a country like India, which is a land of numerous faiths, people consider “religion” close to their heart. Most of the religious practices are deep rooted which help people in exhibiting their religious belief. On the other paradigm, Constitution dictates that State is given the power to do away with those religious practices which seek to obstruct the Country’s progress. In a sense, protecting social welfare would be the primary concern of the State by eradicating some of the religious practices if needed. Implementing this within the existing milieu of India can lead to problematic situations. What if creating social welfare in turn leads to disrupting the social welfare? What if people of the country are adamant to accept any change? Does this mean that State should always protect religious practices? Of course not. People might take some time to accept the made changes or to be convinced with the argument of the State for eradicating the religious practice. So, if any religious practice is found to be impeding rights of certain class of people or is obstructing the country’s overall social progress, State is right in eradicating the same. But this should be consciously done keeping in mind the tenets of the religion. A proper strategy as to how people should be made aware and how the necessary change has to be brought about needs to be developed before abolishing a religious practice. The founders of the Constitution incorporated different values into the Constitution for the reason of achieving human happiness. But there is a compound relationship between these values which needs to be understood so that all the values can collectively produce a humane and compassionate society where equality of status is preserved among the citizens of the Country.[34]



[1] India Young Lawyers Association v. Union of India, Civil Writ Petition 373 of 2006.

[2] Halsbury’s Laws of England, 4th Edition, para 835.

[3] Rev. Stainislaus v. State of MP, AIR 1977 SC 908.

[4] Indian Young Lawyers Association v. The State of Kerala, Civil Writ Petition 373 of 2006.

[5] The Commissioner, Hindu Religious Endowments v. Lakshmindra Swamiar, 1954 AIR 282; Sardar Saifuddin v. State of Bombay, AIR 1962 SC 853.

[6] Mohammed Ali Khan v. Lucknow Municipality, AIR 1978 All 280.

[7] Ismail Faruqui v. Union of India, AIR 1995 SC 605 A.

[8] Gedela Satchidananda Murthy v. Deputy Commissioner, Endownments Department, AIR 2007 SC 1917.

[9] V.N.Shukla, Constitution of India, 10th Edition, p.208.

[10] Durga Das Basu, Commentary on the Constitution of India, 9th Edition, 2014, Vol. 2, p. 5322.

[11] Sri Adi Visheshwara v. State of U.P., (1997) 4 SCC 606.

[12] Ramaswami Mudaliar v. Commr, HRE, AIR 1999 Mad 393; Sri Adi Visheshwara of Kashi Vishwanath Temple v. State of Uttar Pradesh, (1997) 4 SCC 606.

[13] Nallor Marthandam Vellalar v. Commissioner, Hindu Religious and Charitable Endownments, AIR 2005 SC 4225.

[14] Sri Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255.

[15] Hanif Quareshi v. State of Bihar, AIR 1958 SC 731.

[16] Commissioner of Police and Others v. Acharya J. Avadhuta and Anr, AIR 2004 SC 2984.

[17] Durgah Committee v. Hussain, AIR 1961 SC 1402.

[18] State of Gujarat v. Mirzapur Moti Kureshi Kassab, AIR 1998 Guj 220.

[19] Indian Young Lawyers Association v. The State of Kerala, Civil Writ Petition 373 of 2006. [20] Commissioner of Police and Others v. Acharya J. Avadhuta and Anr, AIR 2004 SC 2984.

[21] Sarup v. State of Punjab, AIR 1959 SC 860 (866); Moti Das v. Sahi, AIR 1959 SC 942; Jagadiswaranand v. Police Commissioner, AIR 1984 SC 51.

[22] Commissioner of Police & Others v. Acharya J. Avadhuta And Anr, AIR 2004 SC 2984.

[23]Indian Young Lawyers Association v. The State of Kerala, Civil Writ Petition 373 of 2006. [24] Sri Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255.

[25] Summary on Religion, https://shodhganga.inflibnet.ac.in/bitstream/10603/39839/6/06_summary.pdf (last visited May 24, 2020).

[26] Thomas v. Review Board, (1981) 450 US 707.

[27] Braunfield v. Brown, (1961) 366 US 599.

[28] Durga Das Basu, Commentary on the Constitution of India, 9th Edition, 2016, Vol. 6, p. 5385.

[29] Venkataraman v. State of Madras, AIR 1958 SC 255.

[30] Adi Saiva Sivachariyargal v. Govt. of Tamil Nadu and Anr, Civil Writ Petition 354 of 2006. [31] Indian Young Lawyers Association v. The State of Kerala, Civil Writ Petition 373 of 2006.

[32] A.S. Narayana Deekshitutlu v. State of A.P., (1996) 9 SCC 548.

[33] Ibid.

[34] India Young Lawyers Association v. Union of India, Civil Writ Petition 373 of 2006.

Author Details: Monisha Shaik and Awanthika Raikelkar are students at Institute of Law, Nirma University.



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