Articles 25 to 28 - Right to Freedom of Religion
- Legal Journey
- Oct 24
- 8 min read
Updated: Oct 26
Part 3 of the Constitution of India
Fundamental Rights
Articles 12 to 35
Articles 25 to 28
Right to Freedom of Religion
Table of Content 💻
- 42nd Constitutional Amendment, 1976 inter alia inserted the word “Secular” in the Preamble.
- This merely made it explicit which was already implicit in the Constitution.
- India is a Secular State, which means that in matters of religion it is neutral.
- Secularism is divided into two concepts, positive and negative.
- India Constitution embodies the Positive concept of Secularism.
- India does NOT have a religion of its own but it ensures that all religions are treated equally and with respect. (S.R.Bommai vs. UOI 1994,SC)
- The real meaning of secularism is Sarva Dharma Sambhav (Quote by Mahatma Gandhi) meaning equal treatment and respect for all religions.
S. R. Bommai V. Union of India (1994 SC)
- The court held that Secularism is a basic feature of the Constitution.
- The State treats equally all religions and religious denominations.
- Religion is a matter of individual faith and cannot be mixed with secular activities.
- Secular activities can be regulated by the State by enacting a law.
Article 25. Freedom of Conscience and free profession, practice and propagation of religion
Clause (1) guarantees to every person the freedom of conscience and the right to profess, practice and propagate religion.
- This right is NOT absolute.
- It is subject to :-
Public Order | Morality | Health | And to other provisions of this Part (Fundamental Rights) |
- Also, under Clause (2), the State is empowered to -
regulate or restrict any :-
Economic | Financial | Political | Other secular activity which may be associated with religious practice |
- The freedom to practice extends only to those activities which are the essence of religion.
- It does NOT cover secular activities which do NOT form the essence of religion.
- Hence, the State can regulate or restrict secular activities associated with religious practice.
- Each case must be adjudged by its own facts and circumstances.
To provide for :-
Social welfare and reform | Throwing open Hindu Religious institutions of a public character to all classes and Sections of Hindus |
- The State is empowered to make laws for social welfare and social reform.
- This Clause declares that where there is conflict between the need of social welfare and reform and religious practice, religion must yield.
- Social evils CANNOT be practised in the name of religion.
Q) What is Religion?
A) It is NOT defined in the Constitution.
- The Supreme Court has defined it broadly.
- Religion is essentially a matter of personal faith and belief.
Freedom of Conscience - It is an absolute inner freedom of a person to mould his own relation with God in whatever manner he likes.
- When this freedom becomes articulate and expressed in outward form it is “to profess and practice of Religion.
To Profess - means to declare freely and openly one’s faith and belief.
- It is the external manifestation.
To Practice - is to perform the prescribed religious duties, rites and rituals, and to exhibit his religious beliefs and ideas by such acts as prescribed by religious order in which he believes.
To Propagate - means to disseminate religious views, news, ideas, or philosophies etc.
- But, the term “Propagate” ONLY indicates persuasion and exposition without any element of coercion.
- The right to propagate one’s religion does not give a right to convert any person to one’s own religion.
- There is NO Fundamental Right to convert any person to one’s own religion.
Explanation I - The wearing and carrying of kirpans shall be deemed to be included in the profession of Sikh religion.
- This does NOT mean that he can keep any number of Kirpans.
- He is entitled to keep one sword.
- He cannot possess more than one Kirpan without license. (judicial interpretation)
Explanation II - Hindus include -
Sikh | Jaina | Buddhist |
For the purpose of Article 25(2)(b) |
Article 26. Freedom to manage religious affairs
- It guarantees following right to all religious denominations :-
To establish and maintain institution for religious and charitable purposes;
To manage its own affairs in matters of religion;
To own and acquire movable and immovable property; and
To administer such property in accordance with law.
These rights are also NOT absolute and are subject to :-
Public Order | Morality | Health |
Establish and Maintain - The words “establish and maintain” must be read together and therefore it is only those institutions which a religious denomination establishes which it can claim to maintain it.
Matters of Religion - The right to manage is confined to “matters of religion”.
- The term “matters of religion” includes religious practices, rites and ceremonies considered essential for practice of religion.
Own, Acquire and Administer Property - The right to own, acquire and administer property is NOT only subject to Article 25(2)(a) but is also subject to general property law.
Q) What is the difference between Article 25 and Article 26?
A) The right guaranteed by Article 25 is an individual right while right guaranteed by Article 26 is the right of an organised body like religious denomination or any section thereof.
- Additionally, while Article 25 is subject to other provisions of Part III, Article 26 is NOT subject to other provisions of Part III.
S. P. Mittal V. Union of India (1983 SC)
- The Supreme Court held that the words ‘religious denomination’ in Article 26 must take their colour from the word ‘religion’ and therefore it must also satisfy 3 conditions:-
- It must be a collection of individuals who have a system of beliefs which they regard as conducive to their spiritual well being, that is, a common faith.
- It must have a common organisation.
- It must be designated by a distinctive name.
Gulam Kadar Ahmadbhai Menon V. Surat Municipal Corporation (1998)
- The Gujarat High Court held that the right to religion guaranteed under Article 25 and 26 does NOT prohibit the State from acquiring any place of worship for public purpose.
- While offering of prayer or worship is a religious practice, its offering at every location is NOT an essential or integral part of such religious practice.
- Unless, the place has a particular significance for that religion so as to form an essential or integral part thereof.
Church of God (Full Gospel) in India V. K. K. R. M. C. Welfare Association (2000 SC)
- The Supreme Court held that NO person can be allowed to create noise pollution or disturb the peace of others while exercising freedom.
- Religious prayers through loudspeakers are NOT an essential element of any religion.
Article 27. Freedom as to payment of taxes for promotion of any particular religion
- The State shall NOT compel any person to pay any taxes which shall be used to promote or maintain any particular religion or religious denomination.
- This Article emphasises the Secular character of the State.
- The public money collected by way of tax cannot be spent by the State for the promotion of any particular religion.
Particular Religion - The prohibition is against giving aid to any particular religion.
- This means that if State aid is extended to all religious institutions along with Secular ones alike without any discrimination, Article 27 will NOT be applicable.
Tax - This Article prohibits levying of tax and NOT of fee.
RatiLal V. State of Bombay (1954 SC)
- The Supreme Court held that Tax is in the nature of a compulsory exaction of money by a public authority for public purposes.
- Tax is a common burden and the only return which the tax-prayer gets is a participation in the common benefits of the State.
- Fees are payments primarily in public interest but for some special service rendered or some special work done for the benefit of those from whom the payments are demanded.
- All that is necessary is that there should be a ‘reasonable relationship’ between the levy of the fee and the services rendered.
Article 28. Freedom as to attendance at religious instruction or religious worship in certain educational institutions.
Clause (1) - NO religious instruction shall be provided in any educational institution wholly maintained out of State funds.
Clause (2) - It states that Clause (1) does NOT apply to educational institutions which are maintained from State funds but established under any trust or endowment which requires that religious instruction shall be conveyed in such institutions.
Clause (3) - NO person who is attending an institution recognised by the State OR that is receiving aid from State funds shall be requested to indulge in any religious instruction that may be imported in any such institution.
- Also, he shall NOT be forced or persuaded to attend any religious workshop that may be conducted in any such institution or in a place attached to or close to such an institution.
- Clause (3) supplements Article 30(1).
- Article 28 mentions 4 types of educational institutions:-
1. Institutions wholly maintained by the State. | NO religious instruction can be imparted. |
2. Institutions recognised by the State. | Religious instructions may be imparted ONLY with the consent of the |
3. Institutions that are receiving aid out of the State fund. | Individuals/Guardians. |
4. Institutions that are administered by the State but are established under any trust or endowment. | No restriction on religious instructions. |
Aruna Roy V. Union of India (2002 SC)
- The validity of National Curriculum Framework for School Education, 2000 which provided for education for value development based upon all religions and also a comparative study of philosophy of all religion was challenged on the ground that it was violative of Article 28.
- The Court held that the National Framework for School Education is neither violative of Article 28 nor it is against the concept of Secularism.
- The entire emphasis of Article 28 is against imparting religious instructions or of performing religious worship.
- It does NOT prohibit study of religion’s philosophy and culture particularly for having value based social life in a society degenerating for power, post or property.
- In a society where there are no moral values, there would neither be social order nor secularism.
D. A. V. College, Bhatinda V. State of Punjab (1971 SC)
- The Court held that an academic study of the life and teaching of Guru Nanak did NOT amount to religious instructions or promotion of any particular religion and, therefore, was constitutionally valid.
Frequently Asked Questions
Q) Does the right to propagate religion include the right to convert others?
A) No. The right to propagate allows persuasion and expression of beliefs, but does not include the right to convert others forcibly.
Q) Can the State regulate religious activities?
A) Yes. The State can regulate secular, economic, political, or social activities associated with religion to ensure public welfare and reform.
Q) Does Article 27 apply to all kinds of payments made to the State?
A) No, it applies ONLY to taxes, not to fees charged for specific services or benefits.
Q) Can a student be forced to attend religious worship or instruction in a State-aided school?
A) No. Attendance at such instruction or worship is completely voluntary and CANNOT be imposed on any student.
Q) What happens if a religious practice conflicts with public welfare?
A) When social welfare and reform conflict with religion, religion must yield to public welfare and constitutional morality.
India’s strength lies in its unity amidst diversity. Let’s protect that by understanding our constitutional freedoms better.
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