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The Framers of our Constitution incorporated the Freedom of religion which is the hallmark of Secularism in Arts.25 to 28. They were inspired by the U.S. Constitution, where according to Jefferson there is a wall of separation between the Church and the State. (First Amendment to U.S. Constitution).

In our constitution, 42nd Amendment added "secular" to the preamble. Secular is opposed to "religious state (Theocratic State) " and "Irreligious state ". The State should be neutral, and, treat all religions equally. Religious practises, worshipping of God etc. are left to the dictates of every individual conscience.

The State should not interfere. lt should not aid one religion or prefer one religion over another. It should not collect any religious taxes. This is the essence of the separation of the church from the State.

Freedom of Conscience: Art. 25.

All persons are equally entitled to the freedom of conscience and the right to freely profess, practise and propagate religion,

(a) This is subject to public order, morality health and other provisions of part III.

(b) State may by law regulate or restrict any economic, financial, political or other secular activity of the religion.

(c) State may provide for

(1) Social Welfare and reform or

(2) Throwing open Public Hindu religious institutions to all classes of Hindus. (Hindu includes a Sikh, Jain Buddhist. A Sikh may wear a Kirpan).

In the "Anand Marg" case, a ban imposed under Sn. 144 Cr.P.C. on Tandava dance with daggers, Trishul, skulls etc. in public places was held valid on grounds of public order.

Freedom of Religious Institutions: Art. 26.

Every religious denomination has the right:

(a) To establish and maintain religious and charitable institutions.

(b) To manage its religious affairs.

(c) To own and acquire property, and

(d) To administer such property.

These two Articles deal with the basic essentials of our Secularism. Art. 25 refers to persons whereas Art. 26 guarantees freedom to Religious Institutions. These are subject to certain restrictions. The limit and scope of these have been discussed by the Supreme Court in a number of cases :

Commissioner ofH.R. Endowments V. Laxmindra Thirtha Swamiar (Sirur Mutt Case) :

The Madras Hindu Religious and Charitable Endowment Act had provided for provisions to deprive the mahant of his right to administer the enabled the Commissioner to enter the premises and also the sanctum sanctorum of the temple.The Supreme Court struck down these declared that 'A religion is not only a code of ethical rules, but it contains rituals, ceremonies, modes of worship and also observances regarding dress, food etc. There is internal autonomy and no outside authority has jurisdiction to interfere.'

In Venkataramana Devaru V.State of Mysore,

the Madras Temple Entry Authorisation Act provided for the entry of Harijans to any Hindu temple. This was challenged by the trustees of the temple belonging to Gowda Saraswaths. They claimed under Art. 26 (1), that they had the rights to manage the affairs of the temple and hence, they could bar the entry of any person. Held, Art. 25(2), to throw open Hindu temples to all Hindus prevailed over Art. 26(1). The law was held valid. In the Saifuddin V State of Bombay,the right of a religious head to excommunicate a member from the community was held valid.

In Ratilal V. State of Bombay,

the Charity Commissioner was authorised to deviate the funds of public trust for purposes other than what the donors had indicated. Held, this violated Art.26. State ofRajastan V. Sajjanlal. The temple of Lord Jagannath at Puri is a denominational temple. If a law provided for a non-member of the denomination to be a member or chairman of the Managing Committee, then it would be violative of Arts. 25 and 26. As the Rajasthan Public Trust Act did not have such an effect, it was held valid.

In "National Anthem" case

our Supreme Court held that "religious objectors" (Jehovah) could not be compelled to salute the national flag. Three children, who stood up respectfully, but refused to sing the national anthem were expelled from school. The court followed the American Supreme Court (Barnette's Case), and held that standing respectfully but not singing the national anthem, was not violative of any law. The expulsion order was quashed. In Archaka's Case, the Supreme Court held that the office of Archaka is secular, and, hence a Hindu, who is qualified in Agamas etc. as required by the Hindu Temple, should not be denied of his opportunity in an appointment on grounds of caste.

Freedom from religious taxes :

Art. 27 declares that no person should be compelled to pay any taxes or tolls to promote or maintain any particular religion or its denomination.

In Sri Jagannath V. State of Orissa,

the Supreme Court held valid a fee levied by the Orissa H.R.E. Act, as there was no favour to any particular religion or religious denomination. In Swamiar's Case, the Supreme Court held, a fee of 5% of the total income of the religious institution per annum was a 'tax' and hence the Madras Legislature was incompetent. The levy was held ultra vires.

Art. 28 states that religious instructions shall not be provided in Educational Institutions wholly maintained out of State Funds. a State may administer an Educational institution created under a trust or endowment which requires imparting of religious instruction. In-State recognised or aided public educational institutions if there is any religious instruction or worship, compulsory attendance of any person is barred. But, voluntary attendance is not barred. Similarly a minor may attend if his guardian has given consent.


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