Updated on 15 June, 2019
Right to Freedom of Religion
Constitutional provisionsArticle 25. Freedom of conscience and free profession, practice and propagation of religion (1) Subject to public order, morality and health (POMH) 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; (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.
Explanation: (i) Freedom of conscience: Relation between an individual & State is the most private affair: Inner freedom of an individual to decide his relation with God or living being in whatever way he desires.(ii) Right to profess: Declaration of one’s religious beliefs and faith openly, freely and without any undue restrictions. (iii) Right to practice Performance of religious worship, rituals, ceremonies and exhibition of beliefs and ideas. (iv) Right to propagate: Transmission and dissemination of one’s religious beliefs to others or exposition of the tenets of one’s religion.
Prelims oriented Facts: [i] It is available to all persons; citizens as well as non-citizens. [ii] Grounds to which this right is subjected: POMH [iii] Article 25 is an Individual Right [iV] Right to Propagate also includes right to persuasive conversion. But it does not include a right to forcibly convert another person to one’s own religion.
Analysis of Article 25:
Read Also: Article 23-The Prohibition of Traffic in Human Beings and the Forced Labour.
- Although it guarantees the freedom to follow any religion and propagate it, yet this freedom comes with a responsibility to ensure that the public order, morality and health are not compromised in the process.
- Article 25 of the Constitution which confer the right to practice, preach and propagate religion are "subject to the provisions of Part III" i.e. article 14, 15 and 21. That means freedom of religion is subject to right to equality, rights against discrimination and right to life and liberty.
- This constitutional provision does not give individuals the right to conduct animal sacrifice and perform religious rituals on a busy street or public place that causes inconvenience to others.
- Similarly, the use of loudspeakers at religious places is not guaranteed in the Article 25. Bursting fire crackers for religious occasions and using loudspeakers during religious prayers had come under the scrutiny of the Supreme Court that restricted the time of bursting crackers. The protagonists of this thought took shelter of Article 19(1) freedom of speech and right to expression but SC applied Doctrine of Harmonious Interpretation
- Though the right to perform rituals is protected under this Article, yet the state retains the power to formulate laws to regulate “economic, financial, political” and other activities which are not directly related to a religion. That’s the reason why the government controls the management of some of the Religious institutions Management Committees.
How does Supreme Court decide on the matters of religions?
Essential Religious Practice (ESP) test
- Essential religious practice test has been repeatedly used by judiciary to reach at a conclusion in the cases related to religious practices.
- It is to be noted that Indian constitution does not mention the concept of Essential Religious Practice Test. It only restricts the religious practices on the basis of public order, morality, health and other provisions relating to fundamental rights.
- ESP doctrine was originally conceived in The Shirur Matt case. In this case court held that “In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrine of that religion itself.”
- In the case of The Durgah Committee, Ajmer v. Syed Hussain Ali and Ors, SC was dealing with the question whether the Durga Khawaja Sahet Act, 1955 violated the right to manage religious property under Article 26.
- SC in this case stated a distinction had to be drawn between practices essential and integral to a religion vis-à-vis practices though religious but which have sprung from merely superstitious beliefs
- In the case of Nikhil Soni v. UOI, the Rajasthan High Court, while dealing with the validity of practice of Santhara, stated that Santhara is not an essential religious practice and therefore not protected under Article 25.
- Thus, the protection of Art.25 and Art.26 was confined to only such religious practices which were essential and integral to the religion.
- According to the Court, the test for an “essential practice” was that the practice in question must“constitute the very essence of that religion, and should be such, that if permitted, it will change its fundamental character”
Why ERP test is important?
On the other hand, a non-essential religious practice is not a fundamental right and can be restricted by the State on any reasonable ground.
- Essential practice of a religion is beyond interference by the State and subject only to the restrictions on the basis of the grounds contained in Article 25.
Case studies on article 25
- Sabarimala case is one of the most prominent examples of usage of ERP test for ascertaining the religious cases.
- In this case, Former CJI, Dipak Mishra along with J. AM Khanwilkar concluded that the practice of banning women from entering the temple is not an essential part of Hinduism, instead, that allowing women devotes in the temple is an essential part of the religion.
- It was also concluded that the Ayyappas do not constitute as a religious domination. Thus it has no right under article 26 (b) to bar women entry in the temple.
- The only woman judge, J. Indu Malhotra, dissented in her opinion and maintained that the issue concerns deep religious sentiments that the court should not interfere in unless there is any aggrieved person from that section or religion.
- This dissenting opinion once again brought the need to bring in clarity on application of ERP test. It has been used by judiciary as per their own discretion.
Haji Ali dargah case
- In the Haji Ali Dargah case in 2016, Bombay High Court was dealing with the question whether women should be allowed in the inner sanctorum of dargah or not?
- Bombay High Court upheld the right of women to access the inner sanctum of the Haji Ali Dargah.
- In this case the Court first invoked the “essential religious practices test” –e., was the exclusion of women from the inner sanctum of a shrine an “essential” or “integral” part of Islam? And held that restricting entry of women in dargah is not an essential religious practice.
- Court also held that Haji Ali Dargah Trust is not a religious denomination, thus has no right under article 26(b) to manage affairs in the matter of religion.
- Robasa Khanum vs. Khodabad Irani’s case, brought into the question the conduct of spouse who converted to another religion. In this case court held that this kind of case has to be judged on the basis of the rules of justice equity and good conscience.
- Court further observed that 2nd marriage of the spouse after conversion would go against the natural justice. A husband has right to embrace Islam, but has no right to marry again before getting his marriage dissolved under the Hindu marriage act.
- Thus 2nd marriage has amount to bigamy under section 494 of IPC and declared void.
Read More Articles: Article 26 and Rights of Religious Denominations Article 30 -The Constitution Of India-Right to Minorities
- Constitution Bench with majority dictum in Sharia Bano case held the practice of instant triple talaq (Talaq-e- Biddat) is invalid.
- The Supreme Court, with a majority of three judges, has held “personal laws can no longer be privileged over Fundamental rights.
- Justice Kurian Joseph’s in this judgment was of the opinion that the practice of talaq-e-biddat is against the basic tenets of holy Quran, the very basis of Muslim Personal Law (Shariat). Thus, it cannot be covered under the Essential Religious Practice of Islam and cannot be protected under article 25 and 26.