Constitutional Law Contitutional Law




“We, the citizens of India are under a constant obligation to practice this right in a civilized manner for having been provided with an open means to preach it.” “Right to freedom of religion is not only a right guaranteed by the constitution but also at the same time is a duty expected to be followed, for the betterment and overall growth of the society.”



India, most popularly acknowledged as the land of spiritual beliefs, philosophical thinking, culture, has also been the birthplace of quite a few numbers of religions out of which some of them exist in this era as well. ‘Religion’ is entirely a matter of choice, perception and belief. Paying heed to the Indian scenario we can say that, people in this country have a strong faith and dependence when it comes to their religion as they perceive that religion adds meaning and reason to their lives. When it comes to people who are extremely devoted to their religion, they leave no stone unturned in showing a substantial amount of fidelity towards their respective religion. 

Definitions of Religion by various authors: 
  1. George Bernard Shaw: “There is only one religion, though there are hundreds of versions of it.” 
  2. Sigmund Freud: “Religion is comparable to a childhood neurosis.” 
  3. Rudolph Otto: “Religion is that which grows out of, and gives expression to, the experience of the holy in its various aspects.” 

The Indian Constitution guarantees various fundamental rights to the citizens. One of the fundamental rights guaranteed by the constitution also includes the right to freedom of religion. India is a secular nation and therefore every citizen residing within the territory of India has the right to follow the religion he believes in. This right basically entitles every Indian citizen and gives him the liberty to preach practise and propagate the religion of his choice. This right gives leisure to sermonize about his religion , gives him the opportunity to spread it among everyone without any fear of governmental vengeance and also gives him the assurance to practice it in an amicable manner within the jurisdiction of the country. 

When we talk about India, we can say that it is the land of diversity be it in terms of race, religion, creed, community, caste etc. It is a country where millions of people belonging to different caste, sub-caste, race, dialects, and also those practising different religions have been residing since times immemorial. The differences when it comes to communities or religion or caste are not at all looked upon as a drawback or impediment when it comes to development but it is considered to be a crucial factor which serves as a helping hand in enriching the culture not only in the society but also in the nation as a whole. 

India is absolutely neutral, unbiased and impartial when it comes to exercising ones religious beliefs. The Constitution ensures that no citizen is deprived of this right to profess the religion of his choice peacefully within the Indian territory. The Constitution has high regard and gives utmost importance to the concept of Secularism. Secularism has great significance and also enjoys dignified recognition in the eyes of law. The 42nd amendment of the constitution inserted the word ‘secular’ in the preamble. 

Every person has the freedom to have faith in the religious beliefs of any particular cult or denomination. The allocation of this right according to the constitution is mainly to provide every person with an occasion to declare in open, freely and without any hesitation what he truly feels about his respective religion, his conceptions and ideologies relating to the religious practice he has indulged himself into. The right to profess a particular religion means enabling a person to communicate his thought process , mindset and viewpoints to some other people with an intention to spread his religion and make them well versed and clear in their head, in the society.

Though every person is entitled to the right to preach and expand the religion of own wish and desire but it is also to be taken into account that this right shouldn’t be taken for granted that is , the freedom allotted should not be abused . The person while exercising this right should ensure that he is not indulging in any sort of criminal or other anti- social activities. One needs to always bear in mind that, in the process of utilizing this freedom for one’s own personal good or benefit the societal peace is not at all hampered and no harm or any kind of pain is inflicted upon any member in the society . He needs to confirm that while exercising this right given to him by the constitution he does not hurt the religious sentiments of the other devotees.

Everyone has a different approach when it comes to practicing their religion but at the same time it is disallowed to practice it in a manner which will incite violence and encourage hatred among the masses. It is important for every citizen to respect the religion as well as the religious feelings of others prevailing in the society at large. The law does not permit any citizen to impose his religious views or opinions on other individuals. Every citizen is expected to preach his religion in a rational manner.

Immersing in immoral and illegal activities in the name of religion and disturbing the order and unity of the country is not permissible. No citizen would go scot-free if he is found guilty of committing any kind of evil or dishonest activities on the ground of following the norms and rituals of his religion. The law does not sanction any person to conduct his religious practices pertaining to his own whims and fancies and leading to create a situation of outrage, chaos and animosity. It is an undeniable fact that every individual has its own ways and means to practice his respective religion, but it shouldn’t proceed in a haphazard fashion.

An individual is not answerable to State for the variety of his religious views. The right of worship was granted by God for man to worship as he pleased. Law cannot compel any individual to practice a particular form of worship. But undoubtedly the law has the right to cease the practice of any kind of malicious and corrupt religious activities being carried on, for the purpose of maintaining order and discipline in the country. When a person adopts an illegal way of practicing or promoting his religion, it sets a bad example for the existing masses as it conveys to them that everyone is entitled to exercise the freedom of religion allocated to them , in any manner even though it might be unlawful and unethical in the eyes of law.

Every religion has its own code of conduct, rituals, ceremonies modes of worship etc. But while following and obeying the same an individual should take into account that decency and morality is maintained. He needs to be aware that the religious activities he resorts to does not give rise to any kind of conflict and cause destruction of the property and life of the people in the society. Law will take the requisite steps and measures if at all any acts endangering the safety and unity of the country is projected in its eyes. 

Concept of freedom of religion 

Every citizen is entitled to this right and liberty to preach, practice and propagate the religion of his choice. An opportunity is also provided by this right to spread it among everyone without any fear of government intervention. But also, it is expected by the state to practice it amicably within the jurisdiction of the country. India is a land of diversity being in terms of race, religion, creed, caste and community. When it comes to exercising one’s religious beliefs, India is neutral, unbiased and impartial. It is ensured by our Indian Constitution that no citizen is deprived of his right to practice and profess his or her religion. 

Concept of Secularism under Indian Constitution 

The concept of ‘Secularism’ is omnipresent under Indian Constitution. By 42nd amendment, 1976 of the Indian Constitution, the term ‘Secular’ was inserted in our preamble. Regarding secularism, there were direct provisions but their languages were res ipsa loquitor. When comes to Secularism, our Constitution has high regard and utmost importance is given to this concept. Secularism is often seen as high regard and enjoys dignified recognition in the eyes of law. According to the Constitution, the allocation of this right is to provide an occasion to every person to declare in open and that too without any hesitation the religion he believes or he wants to profess. There are a plethora of judgments which specifically deals with secularism like in the case of S.R.Bommai and the case of Keshvananda Bharti v. Union of India, where it was held that secularism is the basic feature of the Indian Constitution and no provision of legislation can take away or abridge this right. 

Article 25 to Article 28 of the Indian Constitution guarantees the right to freedom of religion to all the citizens residing within the territorial boundaries of the country. 
  1. Freedom of conscience and free profession of religion.( Article 25) 
  2. Freedom to manage religious affairs (Article 26) 
  3. Freedom from payment of taxes for promotion of any particular religion( Article 27) 
  4. Freedom to attend religious instructions ( Article 28) 

Article 25 

Freedom of conscience and free profession, practice and propagation of religion 

  1. 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 regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; 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 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 26 

Freedom to manage religious affairs 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 (d) to administer such property in accordance with law. 

Article 27 

Freedom as to payment of taxes for promotion of any particular religion 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 religions denomination. 

Article 28 

Freedom as to attendance at religious instruction or religious worship in certain educational institutions 

  1. No religious instruction shall be provided in any educational institution wholly maintained out of State funds 
  2. Nothing in clause ( 1 ) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.
  3. No person attending any educational institution recognized by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto Cultural and Educational Rights. 

In Quareshi v The State, an interesting question arose, whether prohibiting cow- slaughter affected the religious right of the Muslims. It was argued on behalf of the petitioner that the sacrifice of a cow on the Bakri- Id day was a part of the Muslim religion and also approved by the Quran. However, the Supreme Court rejected this contention on the ground that satisfactory evidence to support it had not been produced. 

In L. T. Swumiar v Commr. H.R.F. Madras it has been held that even if a tax is imposed on persons belonging to a particular religion, in order to meet the expenses of that particular religion, such tax is void. 

Religious Conversion 

The Court agreed with the law laid down by J. Chagla , in Robasa Khanum vs. Khodabad Irani’s case , wherein the learned judge has held that the conduct of a spouse who converts to Islam has to be judged on the basis of the rules of justice equity and good conscience. 

It was further observed that , looked from another angle , the second marriage of an apostate – husband would be in violation of the rules of natural justice . Assuming that a Hindu husband has a right to embrace Islam as his religion , he has no right under the Act, to marry again without getting his marriage under the Act dissolved. The second marriage after conversion to Islam , would, thus , be in violation of the rules of natural justice and as such would be void. The Court remarked that all the ingredients of Section 494 IPC were satisfied in this case, and therefore the offence of bigamy had been committed. 

The Court was of the opinion that many Hindus have changed their religion and have become converts to Islam only for the purposes of escaping the consequences of bigamy. Since monogamy is the law of the Hindus whereas the Muslim law permits as many as four wives , errant Hindu husbands embrace Islam to circumvent the provisions of the Hindu law and to escape from penal consequences. A marriage solemnized under a particular statute and according to one personal law cannot be dissolved according to another personal law , simply because one of the parties has changed his or her religion. 

In Sarla Mudgal V. Union of India, the questions which had come up for consideration of the Supreme Court , where four petitions were filed under Art 32 of the Constitution Of India were: 1. Whether a Hindu husband who has been married under the provisions of the Hindu Marriage Act, by embracing Islam is in a position to solemnize a second marriage? 

  1. Whether such a marriage without even having the first marriage dissolved, can be said to be a valid marriage under law, when the first wife continues to be a Hindu? 
  2. Whether the husband can be charged with the offence of bigamy under Section 494 of the Indian Penal Code? 

Section 494 IPC 

Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 

After hearing the arguments the Court observed that, under the traditional Hindu Law the doctrine of indissolubility of marriage gave absolutely no recognition to the fact that conversion would have the effect of dissolving a Hindu marriage. Conversion to any other religion by either one or both the spouses is not at all a ground to have the marriage dissolved. 

The Court took into account that the Hindu Marriage Act envisages only monogamy and clearly states that a person married under the act in no way can escape the provisions by merely changing the religion. Such a person is held guilty of having committed the offence of bigamy if he marries again during the lifetime of his spouse, and it matters not what religion he professes at the time of the second marriage. 

“The Constitution provides for Freedom of Religion, Not Freedom From Religion.” 

Section 17 in The Hindu Marriage Act, 1955 

Punishment of bigamy : Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code (45 of 1860), shall apply accordingly. 


Religion occupies a vital place in the human lives. Granting religious freedom permits different beliefs, opinions, deductions that people have in accordance to their own religion, to bloom as well as develop in the society . It plays an integral part in influencing the minds and convictions of the people. It also plays an indispensable role especially in the Indian society in governing the conduct as well as the behavior of the people. Indians are extremely possessive when it comes to their religion and they become alert as soon as any person tries to hinder it or creates an obstacle in their journey of religious worship. 

But also at the same time while discharging this fundamental right given to us, it is essential to take under advisement that it should not interfere with the peace and harmony of the society . It is important to take into consideration the repercussions that will take place if this right is taken for granted .To avoid any kind of future jeopardy or conjecture among our fellow mates it is pivotal to maintain some decorum while exercising this right, to understand the underlying importance and the reason for the allocation of this right, which is mainly to maintain the unity and togetherness in the country and avoid any kind of hassle on the ground of religion between our own brothers and sisters. At times citizens showing an extreme level of concern towards their religion in the due course of professing it ,end up in making the people around feel offended, which in turn might aggravate or provoke them to take steps which may also result in breach of public peace and lead to consequences creating enmity among everyone in the society.

It is undoubtedly a fundamental right which the constitution guarantees for the smooth working and progress of the country, so that all the citizens have the liberty to practice the theories and tenets they believe in , and is also a right which they at any cost cannot be deprived of, but it is at the same time necessary to ensure that we act in a feasible and to be precise humane manner. Law gives all the Indian citizens the sanction to practice this right in order to strengthen the harmony and oneness in the country, but at the same time the state has the right to interfere when the abuse or any kind of wrong usage of this right is projected in front of its eyes. 

“We, the citizens of India are under a constant obligation to practice this right in a civilized manner for having been provided with an open means to preach it.” “Right to freedom of religion is not only a right guaranteed by the constitution , but also at the same time is a duty expected to be followed, for the betterment and overall growth of the society.”

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