Right to Freedom of Religion [Article 25-28] | Constitution of India

The architects of the Indian Constitution acknowledged the nation’s deeply rooted religious diversity and determined that the State must refrain from aligning with any single faith. This principle requires the state apparatus to remain strictly objective, offering neither official recognition nor institutional backing to any particular creed. To institutionalise this secular ethos, they enshrined the Right to Freedom of Religion within the Constitution. This right positions spiritual faith as an element of individual conscience and personal liberty, granting every person the autonomy to practice any faith or reject religion altogether without state interference. Nevertheless, this freedom is not absolute; the State reserves the authority to intervene whenever religious expressions conflict with public order, health, morality, or the socioeconomic objectives of a welfare system.

Article 25 (Freedom of Conscience and Free Profession, Practice and Propagation of Religion)

Art. 25(1) states,

“Subject to public order, morality and health and to the other provisions of Part III of Constitution, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.”

It gives us two rights: -

1. Freedom of Conscience;
2. Freedom to Profess, Practice and Propagate religion.

These rights are available to every person, and not merely to the citizens of India.

• Religion has not been defined in the Constitution, and, it is not susceptible to a precise definition. It is a matter of personal faith and belief and comprises of various rituals and observances which are considered as an integral part of that religion by those who follows it.
• Conscience is the inner freedom of a person to mould his relation with God, human beings and other creatures in the manner he prefers. Freedom of conscience connotes a person’s right to entertain beliefs and doctrines concerning matters which are regarded by him to be conducive to his spiritual well-being.
• To ‘profess’ a religion means to declare freely and openly one’s faith and belief. For instance, Sikhs are allowed to wear and carry ‘Kirpans’.
• To ‘practice’ means performance of religious worship, rituals, ceremonies, and exhibition of beliefs and ideas.

• To ‘propagate’ means to spread and publicise his religious views for the enlightenment of others. In other words, it means the right to communicate a person’s beliefs to another person or to expose the tenets of that faith. The right to propagate one’s religion does not give a right to convert another person to one’s own religion, as that would impinge on the “freedom of conscience” guaranteed to all persons.

Freedom of Conscience is an absolute right. Whereas, Freedom to Profess, Practice and Propagate religion, is subject to public order, morality, health, and other provisions relating to Fundamental Rights.

Art. 25(2) permits the State to make laws in two situations: -

1. regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
2. 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.

With respect to point (a), we must understand that all the activities connected with the temple are not religious activities. For instance, Management of a temple is a secular activity. So, state can make law to regulate or restrict it. With respect to point (b), the expression “Hindu” includes Jain, Sikhs and Buddhists.

Important Case Laws

1. The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Tirtha Swamiyar of Shri Shirur Mutt (1954) – This case is famously known as the ‘Shirur Mutt Case’. In this case, the Court established the landmark “Essential Religious Practices” (ERP) doctrine, which remains the definitive judicial test used to determine which religious activities are constitutionally protected under Articles 25 and 26. The Supreme Court ruled that religion includes not just ethical doctrines, but all rituals, ceremonies, modes of worship, and practices that are integral to that faith. To determine what qualifies for protection, the Court introduced the ERP Doctrine: a court must look at the tenets, texts, and historical traditions of the specific religion itself to determine whether a particular practice is regarded by that community as an “essential and integral part” of their faith. If a practice is essential, the State cannot ban or alter it.
2. Mohd. Hanif Quareshi v. the State of Bihar (1958) – In this case, the Court utilized the ERP test (originally introduced in the Shirur Mutt Case, 1954) to evaluate the Article 25 claim. The Court examined Islamic texts, traditions, and historical practices, concluding that slaughtering a cow on Bakrid is an optional or permissible practice, but not an “essential religious practice” in Islam. The Court noted that a person could easily sacrifice other permissible animals, like a sheep or a goat, to fulfil their religious duty. Therefore, a state ban on cow slaughter did not violate the freedom of religion under Article 25.
3. Rev. Stainlaus v. State of Madhya Pradesh (1977) – In this case, it was held that the Right to Propagate religion under Article 25(1) does not include a fundamental right to convert another person. The Court ruled that to propagate means to transmit or spread one’s religion by an exposition of its tenets. It is a right to educate others about your faith, but it is not a right to convert another person. The Bench emphasized that Article 25(1) guarantees “freedom of conscience” to every citizen equally. If a person had a fundamental right to deliberately convert someone else, it would directly destroy the other person’s freedom of conscience. What is freedom for one must be freedom for the other in equal measure.
4. Acharya Jagdishwaranand Avadhuta vs. Commissioner of Police, Calcutta (1984) – This case is famously known as the ‘Ananda Margi Case’. In this case, the Court clarified that the performance of a public dance using human skulls and lethal weapons does not constitute an essential religious practice, reinforcing that religious expressions are strictly subordinate to public order and safety under Articles 25 and 26. The Court delivered a definitive reminder regarding the opening words of Articles 25 and 26. Both fundamental rights are explicitly made “subject to public order, morality, and health.” The Bench held that the freedom to practice religion is confined to legitimate spiritual bounds. The State has a primary police power and duty to step in and prohibit any public display, even if religiously motivated, that carries lethal weapons, poses a clear danger to human life, or disrupts public peace.
5. Bijoe Emmanuel v. State of Kerala (1986) – This case is famously known as ‘National Anthem Case’. In this case, the Court affirmed the Right to Freedom of Conscience under Article 25(1) by ruling that no person can be legally compelled to sing the National Anthem if it genuinely conflicts with their religious faith. The Court emphasized that under Article 25(1), the guarantee of “Freedom of Conscience” protects an individual’s inner convictions. Justice Chinnappa Reddy noted that the test is not whether a religious belief seems rational to a court or a majority, but whether it is genuinely and conscientiously held by the followers of that faith.
6. Dr. M. Ismail Faruqui vs. Union of India (1994) – In this case, the Court upheld the State’s power to acquire the land of a mosque, establishing that a mosque is not an essential part of the practice of Islam under Article 25 unless it holds a unique historical significance. The Court utilized the Essential Religious Practices (ERP) doctrine to evaluate the constitutional status of a mosque. The majority Bench ruled that while offering prayers (Namaz) is an essential and non-negotiable religious practice in Islam, offering those prayers inside a mosque is not an essential practice. The Court observed that under Islamic law, a Muslim can offer Namaz anywhere, including in the open air, on a public street, or inside their private home. Therefore, a mosque is not an indispensable structure required to practice the faith, meaning it can be acquired by the State like any other ordinary property.
7. Shayara Bano v. Union of India (2017) – This case is famous for striking down the practice of instant triple talaq (Talaq-e-Biddat) as unconstitutional and void under Article 14, ruling that the practice lacks any protection under Article 25. Utilizing the Essential Religious Practices (ERP) doctrine, the majority Bench analysed Islamic jurisprudence and Quranic verses. The Court ruled that instant triple talaq is not an essential or integral part of Islam. True Quranic procedures require attempts at reconciliation over a period of months. A practice that is highly discouraged, sinful, and legally banned in many Islamic countries cannot claim constitutional immunity under Article 25.
8. Indian Young Lawyers Association v. State of Kerala (2018) – This case is popularly known as the ‘Sabrimala Temple Case’. In this case, the Court strike down the traditional ban on women of menstruating age (between 10 and 50 years) entering the Lord Ayyappa Temple at Sabarimala, establishing that gender-based exclusion cannot mask itself as a protected religious practice. Applying the ERP Test, the majority ruled that the exclusion of women is not an essential or integral part of the Hindu religion. The Court pointed out that there was no evidence of a continuous, unalterable historical practice banning women since the temple's inception, and a practice cannot be declared “essential” if its elimination does not completely alter or destroy the nature of the religion itself.

Article 26 (Freedom to Manage Religious Affairs)

While Art. 25 guarantees rights of individuals, Art. 26 guarantees right of religious denominations or their sections.

• Religious Denomination – If a collection of individuals believes in some religious principle which helps in their spiritual well-being and if all these individuals together form a common denomination, which also has a distinctive name, then this organisation can be given the status of a religious denomination. For example, Ramakrishna Mission and Ananda Marga.

Art. 26 states, “Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—

1. to establish and maintain institutions for religious and charitable purposes;
2. to manage its own affairs in matters of religion;
3. to own and acquire movable and immovable property; and
4. to administer such property in accordance with law.”

Important Case Laws

1. The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Tirtha Swamiyar of Shri Shirur Mutt (1954) - The Court drew a sharp legal distinction between the subsections of Article 26:

• Matters of Religion [Article 26(b)]: A religious denomination enjoys absolute autonomy to run its own rituals, prayers, and internal spiritual affairs. The State is completely barred from interfering here.
• Administration of Property [Article 26(d)]: The State can pass laws to regulate the financial and secular properties of a temple or monastery to prevent fraud. However, the State cannot completely strip a religious body of its right to manage its property, nor can it pass regulations that make it impossible for the institution to function.

2. Sri Venkataramana Devaru v. State of Mysore (1958) – In this case, it was held that a denominational temple’s right to manage its own affairs under Article 26(b) must be balanced against the state’s power to throw open public temples to all classes of Hindus under Article 25(2)(b). The Court introduced the Doctrine of Harmonious Construction, ruling that different provisions of the Constitution cannot be read in a way that completely destroys or nullifies each other. The Court must interpret them together so that both can exist. The Bench concluded that Article 25(2)(b) is a broad, overriding social mandate that acts as a valid limitation on the denominational rights protected under Article 26(b).
3. S.P. Mittal v. Union of India (1982) – In this case, the Court upheld the State’s temporary takeover of the management of Auroville, ruling that the teachings and philosophy of Sri Aurobindo do not constitute a “religion” and Auroville is not a “religious denomination” under Articles 25 and 26. The Supreme Court extensively re-evaluated the classic legal definitions of religion first outlined in the Shirur Mutt Case (1954), and ruled that to qualify as a distinct religion or a religious denomination, a movement must satisfy three strict, cumulative criteria:
   1. It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being.
   2. It must have a common organization or institutional hierarchy.
   3. It must be designated by a distinct name.

Thus, in a large sense, ‘Hinduism’, ‘Muslims’, ‘Christians’ are such denominations. In limited sense, the various philosophers governing the Hindп society such as Advaitas, Saivites, etc. are also denominations. Among Mohammedans, Hanafi, Shia or Chisti sects are separate denominations. Also, maths or the spiritual fraternity (a section of denomination) represented by it comes within this article

4. Indian Young Lawyers Association v. State of Kerala (Sabarimala Case) (2018) – In this case, the Supreme Court ruled that the devotees of Lord Ayyappa do not form a separate religious denomination. The Court observed that Ayyappans do not have a separate system of unique beliefs distinct from Hinduism; they do not have a separate institutional hierarchy; and they are simply ordinary Hindu worshippers. Because they are not an independent sect or denomination, the temple management could not invoke Article 26 to block individual citizens from exercising their rights. The court also ruled that Article 26 cannot be read in a vacuum; it is strictly subordinate to “Constitutional Morality.” The Court held that:

• The phrase “morality” used as a restriction in Article 26 does not mean majoritarian social custom or subjective traditional values.
• It strictly means constitutional morality, which is built on the pillars of individual dignity, liberty, and absolute gender equality.
• A custom that uses biological factors like menstruation to stigmatize and exclude women directly violates individual dignity under Article 21 and cannot be protected as a management right under Article 26.

Article 27 (Freedom as to Payment of Taxes for Promotion of any Particular Religion)

Art. 27 states,

“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.”

The object is to protect the secular characteristics of the Constitution which prohibits the promotion or maintenance of any particular religion by the State or at State’s expenses. Therefore, if such a tax is imposed, no person can be compelled to pay it. However, if the state wishes, it can spend this money on the maintenance and promotion of all religions, without any discrimination.

Art. 27 not only prohibit the imposition of a tax but it also prohibits the utilization of public funds for the promotion of a particular religion or denomination. However, reconstruction of the religious places damaged during communal riots at the cost of the Government had been held to be valid. Similarly, the acquisition of land for construction of public temple had been upheld as not violative of Art. 27.

A religious institution performs two types of activities: secular activities and religious activities. If a religious institution charges us a fee for its secular activities, there should be no problem with that. This is because the purpose of such fee is to control secular administration of religious institutions and not to promote or maintain religion.

Important Case Laws

1. The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Tirtha Swamiyar of Shri Shirur Mutt (1954) – In this case, the Court ruled that India’s constitutional secularism prohibits the state from using public funds raised from taxpayers to favour, promote, or maintain any specific religion or religious denomination. The Court held that the state cannot compel any citizen or institution to pay a “tax” if the collected money is specifically earmarked to pay for the promotion, maintenance, or administrative upkeep of a particular faith. The Court distinguished between a tax and a fee:

• A tax is a compulsory financial extraction made by a public authority for general public purposes. Crucially, a tax is merged into the Consolidated Fund of the State and is spent on general governance without providing any specific, direct service (quid pro quo) to the individual taxpayer.
• A fee is a payment taken by the state for a specific, specialized service rendered directly to the payer. The collected money must be kept separate from general revenues and must be used to cover the exact cost of performing that specific service for the benefit of the payers.

2. Sri Jagannath v. State of Orissa (1954) – In this case, the Court clarified that Article 27 strictly prohibits a “tax” where public money is extracted into the general state fund to promote or maintain a particular religion. Conversely, a fee is fully permissible if it is collected for a specific service rendered (quid pro quo).
3. Nasima Khatun v. State of West Bengal (1981) – In this case, the Court held that providing secular modern education to impoverished children does not favour or promote a religious dogma, and thus, does not attract Art. 27.
4. Prafull Goradia v. Union of India (2011) – In this case, the Court upheld the validity of government-funded religious subsidies, ruling that spending general tax revenues on a specific religious pilgrimage does not violate Article 27 unless a substantial portion of the state's total tax collection is allocated to that single religion.

Article 28 (Freedom as to Attendance at Religious Instruction or Religious Worship in Certain Educational Institutions)

Basically, this Article discusses whether religious talks be held in education institutions; to what extent such talks can be held.

Art. 28 categorise educational institutions into four types: -

1. Wholly owned by the State – Religious instructions are completely prohibited.
2. Administered by the State but established under any trust or endowment – Religious instructions are permitted.
3. Recognised by the State – Religious instructions are permitted on a voluntary basis.
4. Receiving Aid from the State – Religious instructions are permitted on a voluntary basis. If such person is a minor, his guardian’s consent is required for participation.

Important Case Laws

1. St. Xavier College v. State of Gujarat (1974) – In this case, the Supreme Court held that if such a person is minor, consent of his guardian would be required for requiring him to attend the religious instructions.
2. D.A.V. College, Jalandhar v. State of Punjab (1971) – In this case, it was held that a provision for an academic study of the life and teachings or the philosophy and culture of any great saint of India (Guru Nanak, in the present case) in relation to, or their impact on the Indian and world civilization could not be taken as providing for religious instructions relating to a particular religion. Thus, the Guru Nanak University Act, 1969, which provided for the establishment of Guru Nanak University at Amritsar with a view to make provision for the study and research on the life and teachings of Guru Nanak, did not imply that religious instructions would be imparted therein.
3. Aruna Roy v. Union of India (2002) – In this case, the Supreme Court clarified that while Article 28 prohibits “religious instruction” in state-funded schools, it does not bar the academic study of religious philosophy and culture. The court upheld that teaching shared ethical values across religions constitutes “positive secularism” rather than a violation of the Constitution.