Article 25 of Indian constitution talks about Freedom of conscience and free profession, practice and propagation of religion.
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, practice 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 associated with religious practice;
(1:) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I. –The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II. -In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
Article 25of Indian constitution should be read along with Article 26. While Article 25 of Indian constitution guarantees rights to an individual, Article 26 guarantees such rights to an organised body of individuals like the religious denominations or any section of them. Both these articles protect matters of religious doctrine or belief as’ well as acts done in pursuance of religion w rituals, Observances; ceremonies and modes of wors These articles embody the principles of religious tolerance that has been (me of the characteristic features of Indian civilization from the start of its history, the instances and periods when this feature was absent were merely temporary aberrations. They also emphasize the secular nature of Indian polity which the founding fathers considered to be the very basis of the Constitution.
The Constitution does not define “religion” anywhere, but the Supreme Court gave a comprehensive definition of religion Commr. Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt in the following words:
Religion is certainly a matter of faith with individuals or communities an it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept might prescribe rituals and observances‘ ceremonies and modes of worship which are regarded as internal part of religion, and these forms and observations might extend even to matters of food and dress.
Article 25 of Indian constitution CLAUSE 1- ARTICLE 25(1)
‘Article 25 of Indian constitution’ Clause (1) guarantees to every person, and not merely to the citizens of India, the freedom of conscience and the right freely to profess, practise and propagate religion. The right is subject in every case to public order, health and morality and other provisions of Part III. Further exceptions are engrafted upon this right by clause (2) of the article. Sub-clause (a) of clause (2) saves the power of the State to make laws regulating or restricting any economic, financial, political or secular activity which may be associated with religious practice and sub-clause (b) reserves the State’s power to make laws providing for social welfare and social reform even though they might interfere with religious practices.
Freedom of conscience connotes a person’s right to entertainment beliefs and doctrines concerning matters, which are regarded by him to be conducive to his spiritual well-being A person has freedom to believe in religious tenets of any sect or community. Article 25 of Indian constitution is more about custom and practices.
The right is not only to entertain such religious beliefs as may be approved by his judgment or conscience but also to exhibit his sentiments in overt acts as are enjoined by his religion. In the words of the article, he may “profess, practise and propagate his religion”. To profess a religion means the right to declare freely and openly one’s faith. He may freely practice his religion. “Religious practices or performances of acts in pursuance of religious belief are as much a part of religion as faith or belief’ 1n particular doctrines. Rituals and Observances, ceremonies and modes of worship considered by a religion to be its integral and essential part are also secured. What constitutes an integral and essential part of a religion or a religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practiced regarded by the community as part of its religion. Duties such as collection of offerings, assigned to the sevaks (servants), are not practice of religion. Therefore, any arrangement in the temple, such as placing of Hundis in different parts of the temple for making offerings by the devotees, which deprives the sevaks of the duty to collect offerings, does not amount to infringement of their right to practice religion.”
Again, a person may propagate freely his religious views for the edification of others. It is immaterial whether the propagation is made by a person in his individual capacity or on behalf of a Church or institution. The right to religion includes the right to seek declaration that the Church is episcopal.
Article 25 of Indian constitution Clause (2)(a)
While the right to freely practise religion subject to the limitations of public order, health and morality is guaranteed, there is no such protection to activities which are economic, commercial or political in their character, though they are associated with religious practice. It may not always be easy to say if any particular matter falls under essential religious practice or is only a secular, commercial or political activity which has come to be associated with religion. A few cases from the US and Australian Constitutions may be cited to illustrate the difficulty. In Adelaide Co. v. Commonwealth, a company of ”Jehovah’s Witnesses” (a religious organisation) which, among other things, was opposed to all wars, in 1941 started proclaiming and teaching matters which were prejudicial to war activities and the defence of the Commonwealth. Steps were taken against them under the National Security Regulations. The legality of government action was raised by means of a writ petition before the High Court of Australia. The High Court sustained the action of the government and held that the religious freedom was not in any way infringed by the National Security Regulations. This is an instance where political activities, though arising out of religious belief entertained by a. particular community, were considered not to be protected by the Constitution. In Minersville School, District v. Gobitis“1 two small children were expelled from the School of Minersville, Pennsylvania, for refusing to salute the national flag as part of the daily exercise. The family to which the children belonged was affiliated with “Jehovah’s Witnesses” and they were taught to believe that saluting the flag was contrary to the injunction laid down in the holy scripture. The US Supreme Court was invited to decide if the requirement of participation in such a ceremony infringed the constitutional guarantee of religious liberty. It held that there was no infringement of the right to freedom of religion and it was within the competence of the legislature to adopt appropriate means to evoke and foster i sentiment of national unity amongst the children in public schools.
But very soon the court retracted from the view taken by it in the above case. in West Virginia State Board of Education v. Barneh‘e“, it held that the action of the State in making it compulsory for children in public schools to salute the national flag and pledge allegiance constituted a violation of the liberty of religion. This difference in judicial Opinion only emphasises the difficulty of reconciling the freedom of religious convictions honestly held by men with the proper political attitude which is expected from citizens in matters of unity and solidarity of the State organisation.
Our Supreme Klimt has warned against blind reliance on foreign precedents in determining what is and what is not religious practice.66 In Mohd. Hanif Quareshi v; State of Bihar‘”, the court had to determine whether the prohibition of cow slaughter violated the freedom of religion of the Mohammedans. The petitioners contended that the sacrifice of cow on the Bakrid day was enjoined by the Koran and, therefore, the practice was an integral part of the religion. The court after review of evidence, held that the practice was not an essential art of the Mohammedan religion and could, therefore, be re ulated under clause (2)(a) of Article 25 of Indian constitution. Payment of remuneration to the temple staff is secular activity associated with religion which can be regulated under Article 25 of Indian constitution (2)(a).
Article 25 of Indian constitution Clause (2)(b)
Clause (2)(b) of Article 25 of Indian constitution deals with two exceptions: 1) laws providing for social welfare and social reform, and 2) the throwing open of all ”Hindu religious institutions of a public character” to ”all classes and sections of Hindus”.
As pointed out above, the right of religious freedom under clause (1) is subject to the power of the State to make laws for social welfare and social reform. The Bombay High Court held that an Act to prevent bigamous marriages was not violative of religious freedom since it fell under clause (:z)(b). Likewise, the provisions of the Hindu Marriage Act, 1956, are protected under sub-clause (b) of Article 25(2). Prohibition of evil practices such as sati or the system of devdasi could be justified under this clause. But the Bombay Prevention of Excommunication Act, 1949 which deprived the head of the Dawoodi Bohra community to excommunicate members of that community on religious grounds could not be saved under Article 25(2)(b .The court held that the phrase “law providing for social welfare and social reform” is not intended to cover the basic essentials of the creed of a religion which are protected by Article 25 of Indian constitution (1).
The second part of Article 25 of Indian constitution (2)(b) makes it clear that the right to freedom of religion would not prevent the State from throwing open all ”Hindu religious institutions of public character” to all ”classes and sections of Hindus”. Public institutions would include temples dedicated to the public as a whole and also those founded for the benefit of sections or denominations of people. ‘
The right conferred by Article 25 of Indian constitution (2)(b) is a right conferred on ”all classes and sections of Hindus” to enter into a public temple, and on the unqualified terms of that article, that right must be available, whether it is sought to be exercised against an individual under Article 25(1) or against a denomination under Article 26(b). The fact is that, though Article 25(1) deals with the rights of individuals, Article 25 of Indian constitution (2) is much wider in its contents and has reference to the rights of communities and controls Articles 25(1) and 26(b).
The right protected by Article 25 of Indian constitution (2)(b) is a right to enter into a temple for purposes of worship, and it should be construed liberally in favour of the public. But it does not follow from this that the right is absolute and unlimited in character. No member of the Hindu public could, for example, claim as part of the rights protected by Article 25(2)(b) that a temple must be kept open for worship at all hours of the day and night, or that he should personally perform those services which the acharyas alone could perform.72 It is again a well-known practice of religious institutions of all denominations to limit some of its services to persons who have been specially initiated, though at other times the public in general are free to participate in the worship. Thus the right recognised by Article 25 of Indian constitution (2)(b) necessarily becomes subject to some limitations or regulations and such limitations or regulations arise in the process of harmonising the rights conferred by “Article 25 of Indian constitution” (2)(b) with that protected by Article 26(b).73 The legislature could not invade the traditional and conventional manner in which the actual worship of the deity is allowed to be performed only by the authorised pujaris of the temple and by no other devotee entering the temple for darshan.
Exercise of religious freedom which does not fall within the exceptions of clause (1) or (2) of Article 25 of Indian constitution, cannot be restricted on any other extraneous considerations. Thus expulsion of three students belonging to the sect of Jehovah’s Witnesses from the school on the ground that they did not sing the National Anthem was invalidated because it did not fall within any of those exceptions. The exceptions can be enforced only with the authority of law and not otherwise.”
Explanation l to Article 25 of the Constitution recognises the rights of the followers of the Sikh religion to wear and carry on their persons kirpans as an emblem of their religion. Kirpan means a sword. But its size and shape has not been prescribed by the Sikh religion. It may, therefore, be a sword of any size or Shape. But a Sikh cannot carry any number of kirpans or swords. He is not allowed to possess an extra sword without licence.
Explanation II to ‘Article 25 of Indian constitution’ declares that the expression “Hindus” shall be construed as including persons professing the Sikh, Jaina or Buddhist religion. The explanation is only for the purposes of Article 25(2)(b) and for no other.“ Various statutes accord legislative recognition to the fact that even though Iains may not be Hindus by religion. they are to be governed by the same law: as Hindus and cannot claim to be a separate religious minority.”