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right of freedom of religion

Supreme Court of India

S.R. Bommai vs Union Of India on 11 March, 1994

Author: S Pandian

Bench: Pandian, S.R. (J), Ahmadi, A.M. (J) (J), Verma, J.S. (J) Sawant, P.B., Ramaswamy, K. & Agrawal, S.C. (J), Yogeshwar Dayal Reddy, B.P. (J)



The great statesman-philosopher Dr Radhakrishnan said "When India is said to be a secular State, it does not mean that we reject reality of an unseen spirit or the relevance of religion to life or that we exalt irreligion. It does not mean that secularism itself becomes a positive religion or that the State assumes divine prerogatives. Though faith in the Supreme is the basic principle of the Indian tradition, the Indian State will not identify itself with or be controlled by any particular religion. We hold that no one religion should be given preferential status, or unique distinction, that no one religion should be accorded special privileges in national life or international relations for that would be a violation of the basic principles of democracy and contrary to the best interests of religion and Government. This view of religious impartiality, of comprehension and forbearance, has a prophetic role to play within the national and international life. No group of citizens shall arrogate to itself rights and privileges which it denies to others. No person should suffer any form of disability or discrimination because of his religion but all alike should be free to share to the fullest degree in the common life. This is the basic principle involved in the separation of Church and State." (emphasis supplied) (Recovery of Faith, New York, Harper Brothers 1955, p. 202)


Notwithstanding the fact that the words 'Socialist' and 'Secular' were added in the Preamble of the Constitution in 1976 by the 42nd Amendment, the concept of Secularism was very much embedded in our constitutional philosophy. The term 'Secular' has advisedly not been defined presumably because it is a very elastic term not capable of a precise definition and perhaps best left undefined. By this amendment what was implicit was made explicit. The Preamble itself spoke of liberty of thought, expression, belief, faith and worship. While granting this liberty the Preamble promised equality of status and opportunity. It also spoke of promoting fraternity, thereby assuring the dignity of the individual and the unity and integrity of the nation. While granting to its citizens liberty of belief, faith and worship, the Constitution abhorred discrimination on grounds of religion, etc., but permitted special treatment for Scheduled Castes and Tribes, vide Articles 15 and 16. Article 25 next provided, subject to public order, morality and health, that all persons shall be entitled to freedom of conscience and the right to profess, practice and propagate religion. Article 26 grants to every religious denomination or any section thereof, the right to establish and maintain institutions for religious purposes and to manage its own affairs in matters of religion. These two articles clearly confer a right to freedom of religion. Article 27 provides that no person shall be compelled to pay any taxes, the proceeds whereof are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. This is an important article which prohibits the exercise of State's taxation power if tile proceeds thereof are intended to be appropriated in payment of expenses for the promotion and maintenance of any particular religion or religious denomination. That means that State's revenue cannot be utilised for the promotion and maintenance of any religion or religious group. Article 28 relates to attendance at religious instructions or religious worship in certain educational institutions. Then come Articles 29 and 30 which refer to the cultural and educational rights. Article 29 inter alia provides that no citizen will be denied admission to an educational institution maintained wholly or partly from State funds on grounds only of religion, etc. Article 30 permits all minorities, whether based on religion or language, to establish and administer educational institutions of their choice and further prohibits the State from discriminating against such institutions in the matter of granting and. These fundamental rights enshrined in Articles 15, 16, and 25 to 30 leave no manner of doubt that they form part of the basic structure of the Constitution.


As has been explained by Shri M.C. Setalvad (Patel Memorial Lectures-- 1965 on Secularism)-


"Secularism often denotes the way of life and conduct guided by materialistic considerations devoid of religion. The basis of this ideology is that material means alone can advance mankind and that religious beliefs retard the growth of the human beings ... this ideology is of recent growth and it is obvious that it is quite different from the concept of secular State in the West which took root many centuries ago. ...

A different view in relation to religion is the basis of 'secularism' understood in the sense of what may be called a 'secular attitude' towards life. Society generally or the individual constituting it tend progressively to isolate religion from the more significant areas of common life. Many of us, Hindus and Muslims and others, are in our way of life, and outlook on most matters largely governed by ideas and practices which are connected with or are rooted in our religion. The secular attitude would wean us away from this approach so that in our relations with our fellow beings or in dealings with other social groups, we have less and less regard for religion and religious practices and base our lives and actions more on worldly considerations, restricting religion and its influence to what has been called its 'proper' sphere, i.e., the advancement of the spiritual life and well- being of the individual. Secularism of this character is said to be essential to our progress as human beings and as a nation because it will enable us to shake off the narrow and restrictive outlook arising out of casteism, communalism and other like ideas which come in the way of our development. 'secularism' of the kinds we have adverted to above. ... No doubt, the two concepts are interdependent in the sense that it is difficult to conceive of a society or a group of individuals being induced to adopt a secular philosophy or a secular attitude without the aid of a secular State. A secular State is not easy to define. According to the liberal democratic tradition of the West, the secular State is not hostile to religion but holds itself neutral in matters of religion.......

Thereafter, referring to the Indian concept of secularism, the learned jurist stated as follows :

"... the secularist way of life was repeatedly preached by leaders of movement so that religious matters came to be regarded entirely as relating to the conscience of the individuals.......

"The coming of the partition emphasised the great importance of secularism. Notwithstanding the partition, a large Muslim minority consisting of a tenth of the population continued to be the citizens of independent India. There are other important minority groups of citizens. In the circumstances, a secular Constitution for independent India under which all religions could enjoy equal freedom and all citizens equal right and which could weld together into one nation, the different religious communities, become inevitable."

Thereafter, the learned jurist has gone on to point out that our Constitution undoubtedly lacks a complete separation between the church and the State as in the United States and at the same time we have no established church as in Great Britain or some other countries. In our country, all religions are placed on the basis of equality and it would, therefore, seem that it is erroneous to describe our country as a secular State. He quoted Dr Radhakrishnan who said that "the religious impartiality of the Indian State is not to be confused with secularism or atheism". He also pointed out that the proceedings of the Constituent Assembly show that "two attempts made to introduce the word 'secular' in the Constitution had failed. ..." At the same time, he asserted that....... nevertheless, it could not be said that the Indian State did not possess some important characteristics of a Secular State" and has pointed out some of the provisions of the Constitution to which we have already made a reference above. He has then stated that the ideal of a Secular State in the sense of a State which treats all religions alike and displays benevolence towards them is in a way more suited to the Indian environment and climate than that of a truly Secular State by which he meant a State which creates complete separation between religion and the State. Justice Chinnappa Reddy, delivering his Ambedkar Memorial Lecture on 'Indian Constitution and Secularism' has observed that :


"Indian constitutional secularism is not supportive of religion at all but has adopted what may be termed as permissive attitude towards religion out of respect for individual conscience and dignity. There, even while recognising the right to profess and practise religion, etc., it has excluded all secular activities from the purview of religion and also of practices which are repugnant to public order, morality and health and are abhorrent to human rights and dignity, as embodied in the other fundamental rights guaranteed by the Constitution."

One thing which prominently emerges from the above discussion on secularism under our Constitution is that whatever the attitude of the State towards the religions, religious sects and denominations, religion cannot be mixed with any secular activity of the State. In fact, the encroachment of religion into secular activities is strictly prohibited. This is evident from the provisions of the Constitution to which we have made reference above. The State's tolerance of religion or religions does not make it either a religious or a theocratic State. When the State allows citizens to practise and profess their religions, it does not either explicitly or implicitly allow them to introduce religion into non-religious and secular activities of the State. The freedom and tolerance of religion is only to the extent of permitting pursuit of spiritual life which is different from the secular life


Secularism is a part of the basic structure of the Constitution. The acts of a State Government which are calculated to subvert or sabotage secularism as enshrined in our Constitution, can lawfully be deemed to give rise to a situation in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution.



DEMOCRACY AND SECULARISM


Democracy stands for freedom of conscience and belief, tolerance and mutual respect. India being a plural society with multi-religious faiths, diverse creeds, castes and cultures, secularism is the bastion to build fraternity and amity with dignity of person as its constitutional policy. It allows diverse faiths to flourish and make it a norm for tolerance and mutual respect between various sections of the people and to integrate them with dignity and fulfilment of cravings for self-realisation of religious belief with larger national loyalty and progress. Rule of law has been chosen as an instrument for social adjustment in the event of clash of interests. In a free society, law interacts between competing claims in a continuing process to establish order with stability. Law should not only reflect social and religious resilience but has also to provide a lead by holding forth the norms for continuity for its orderly march towards an ideal egalitarian social order envisioned in the preamble of the Constitution. The culture of the law, in the Indian Democratic Republic should be on secular lines. A balance, therefore, has to be struck to ensure an atmosphere of full faith and confidence. Charles Broadlaugh in seventeenth century for the first time used secularism as antagonistic to religious dogma as ethical and moral binding force. This Western thought, in course of time gained humanistic acceptance. The word secularism defined in Oxford Dictionary means that "morality should be based solely in regard to the well-being of the mankind in the present life to the exclusion of all considerations drawn from the belief in God or a future study". In Encyclopaedia Britannica secularism is defined as "branch of totalitarian ethics, it is for the physical, moral and social improvement of mankind which neither affirms nor denies theistic problems of religion". Prof. Goethinysem of the Berlin University writing on secularism in the Encyclopaedia of the Social Sciences (1939 Edn.) defined it as "the attempt to establish autonomous sphere of knowledge purged of supernatural, fideistic presuppositions". He described it, in its philosophical aspect, "as a revolt against theological and eventually against metaphysical absolutes and universals". He pointed out that "the same trend may be charted out in the attitudes towards social and political institutions", so that men in general broke away from their dependence upon the Church which was regarded as the guardian of an eternal welfare which included that in this world as well as that in the next, and, therefore, was considered entitled to primacy or supremacy over transient secular authorities. He indicated how this movement expanded in the second half of the eighteenth century, into a secularised universalism, described as "Enlightenment", which conceived of man on earth as the source of all really significant and verifiable knowledge and light. It was increasingly realised that man depended for his welfare in this world upon his own scientific knowledge and wisdom and their applications and upon a socioeconomic system of which, willy-nilly, he found himself a part. He had, therefore, argued that the man has to take the responsibility for and bear the consequence of his own follies and inequities and not look upon them as a part of some inscrutable design of external powers or beings controlling his destiny. G.L. Holyoake, an associate of Charles Broadlaugh in his Principles of Secularism in 1859 advocated for secularism which received approval and acceptance by celebrated political philosopher J.S. Mill. Jeremy Bentham's The 'Theory of Legislation formulated in the eighteenth century stands on moral-based politics and defined law from the point of view of human welfare sought through democratic liberal channels and intended to attain "the greatest happiness of the greatest number", a maxim dear to democratic utilitarian political philosophers.


177. Secularism became the means and consciously pursued for full practical necessities of human life to liberate the human spirit from bondage, ignorance, superstition which have held back humanity. The goal of every civilised democratic society is the maximisation of human welfare and happiness which would be best served by a happy Organisation.


178. Freedom of faith and religion is an integral part of social structure. Such freedom is not a bounty of the State but constitutes the very foundation on which the State is erected. Human liberty sometimes means to satisfy the human needs in one's own way. Freedom of religion is imparted in every free society because it is a part of the general structure of the liberty in such a society and secondly because restrictions imposed by one religion would be an obstacle for others. In the past religious beliefs have become battlegrounds for power and root cause for suppression of liberty. Religion has often provided a pretext to have control over vast majority of the members of the society. Democratic society realises folly of the vigour of religious practices in society. Strong religious consciousness not only narrows the vision but hampers rule of law. The Founding Fathers of the Constitution, therefore, gave unto themselves "we people of India", the Fundamental Rights and Directive Principles of State Policy to establish an egalitarian social order for all sections of the society in the supreme law of the land itself. Though the concept of "secularism" was not expressly engrafted while making the Constitution, its sweep, operation and visibility are apparent from fundamental rights and directive principles and their related provisions. It was made explicit by amending the preamble of the Constitution 42nd Amendment Act. The concept of secularism of which religious freedom is the foremost appears to visualise not only of the subject of God but also an understanding between man and man. Secularism in the Constitution is not anti-God and it is sometimes believed to be a stay in a free society. Matters which are purely religious are left personal to the individual and the secular part is taken charge by the State on grounds of public interest, order and general welfare. The State guarantee individual and corporate religious freedom and dealt with an individual as citizen irrespective of his faith and religious belief and does not promote any particular religion nor prefers one against another. The concept of the secular State is, therefore, essential for successful working of the democratic form of Government. There can be no democracy if anti-secular forces are allowed to work dividing followers of different religious faith flying at each other's throats. The secular Government should negate the attempt and bring order in the society. Religion in the positive sense, is an active instrument to allow the citizen full development of his person, not merely in the physical and material but in the non-material and non-secular life.


179. Prof. Goethinysem in his article referred to hereinbefore outlined the process of secularism of life and thoughts by which religious sectarianism comes into contact in daily social and economic spheres of life and he summarises with "the ideal of human and social happiness through secularisation of life all the groups of people in the country striving by most enlightened methods to establish the maximum of social justice and welfare in the world". According to Pt. Jawaharlal Nehru democracy necessarily implies rigorous self-discipline without which democracy cannot succeed. Swami Vivekananda explaining the Vedantic ideas of God and religion in comparison with western thoughts stated that the religious attitude is always to seek the dignity inside his ownself as a natural characteristic of Hindu religion and religious attitude is always presented by making the subject close his eyes looking inward. Dr Thouless in his Introduction to the Psychology of Religion after analysing diverse elements and definitions of religion defined religion as "a felt practical relationship with what is believed in a superhuman being or beings". The process of secularisation of life and thought consistently increasing the withdrawal and separation of religion properly so-called from other spheres of life and thought which are governed by independent from above rules and standards. According to Sir James Freezer in his Golden Bough religion consists largely of not only of methodological and rituals dominated by all aspects of his life, social, economic, political, legal, cultural, ethical or moral, but also technological. The interaction of religion and secular factors in ultimate analysis is to expose the abuses of religion and of belief in God by purely partisan, narrow or for selfish purpose to serve the economic or political interests of a particular class or group or a country. The progress of human history is replete with full misuse of religious notions in that behalf. But the scientific and analytical spirit characterises secularism as saviour of the people from the dangers of supposed fusion of religion with political and economic activities and inspire the people. The secularism, therefore, represents faiths born out of the exercise of rational faculties. It enables people to see the imperative requirements for human progress in all aspects and cultural and social advancement and indeed for human survival itself. It also not only improves the material conditions of human life, but also liberates the human spirit from bondage of ignorance, superstition, irrationality, injustice, fraud, hypocrisy and oppressive exploitations. In other words, though the whole course of human history discloses an increasing liberation of mankind, accomplished thought, all is covered by the term secularism. Trevor Ling's writings on Buddhism spoke of it as a secular religion, which teaches eight-fold path of his mastery and virtuous conduct of ceaseless, self-critical endeavour for right belief, right aspiration, right speech, right conduct, right modes of livelihood, right efforts, right-mindedness and right scripture. Buddhism rationalises the religion and civilisation to liberate individual from blindfold adherence to religious belief to rationalisation, in the language of Trevor Ling "flat alluvial expansion of secularism". Dr Ambedkar believed that Buddhism is the religion best suited to the Indian soil. Mahatma Gandhi, Father of the Nation, spoke for the need of religion thus:


,,The need of the mankind is not one of religion, but mutual respect and tolerance of the devotees of different religions. We want to reach not a data level, but unity in diversity. The soul of all religions is one, but it is encased in the multitude of forms. The latter will persist to the end of the time."

180. Dr S. Radhakrishnan, the philosopher, former President of India, in his Discovery of Faith stated that the religious impartiality of the Indian State is not to be confused with the secularism or atheism. Secularism as defined here is in accordance with the enormous religious traditions of India. It is for living in harmony with each other. This fellowship is based on the principle of diversity in unity which alone has all qualities of creativeness. In his foreword to Dr Abid Hussain's The National Culture of India, Dr S. Radhakrishnan remarked that secularism does not mean licence or a thrust of material comfort. It lays thrust on universality of the supreme fellow which may be attained by variety of ways. Indian concept of secularism means "the equal status to all religions". He said that "no one religion should be given preferential status or unique distinction and that no one religion should be accorded special privileges in national life". That would be violative of basic principles of democracy. No group of citizens can so arrogate to itself the right and privilege which it denies to others. No person shall suffer any form of disability or discrimination because of his religion, but also alike should be free to share to the fullest degree in the common life. This is the basic principle in separation of religion and the State. Granville Austin in his The Indian Constitution : Cornerstone of a Nation stated that the Constitution makers intended to secure secular and socialist goals envisaged in the preamble of the Constitution. In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra 33 this Court held that : (SCR p. 297: SCC p. 32, para 44) "The Secular State rising above all differences of religion, attempts to secure the good of all its citizens irrespective of their religious beliefs and practices. It is neutral or impartial in extending its benefits to citizens of all castes and creeds.


Maitland had pointed out that such a state has to ensure, through its laws, that the existence or exercise of a political or civil right or the right or capacity to occupy any office or position under it or to perform any public duty connected with it does not depend upon the profession or practice of any particular religion."


It was further pointed ou: "Our Constitution and the laws framed thereunder leave citizens free to work out happy and harmonious relationships between their religions and the quite separable secular fields of law and politics. But, they do not permit an unjustifiable invasion of what belongs to one sphere by what appertains really to another. It is for courts to determine, in a case of dispute, whether any sphere was or was not properly interfered with, in accordance with the Constitution, even by a purported law." Thereby this Court did not accept the wall of separation between law and the religion with a wider camouflage to impress control of what may be described exploitative parading under the garb of religion. Throughout ages endless stream of humans of diverse creeds, cultures and races have come to India from outside regions and climes and contributed to the rich cultural diversity. Hindu religion developed resilience to accommodate and imbibe with tolerance the cultural richness with religious assimilation and became a land of religious tolerance.


181. Swami Vivekanada stated that right of religious system and ideals is the same morality; one thing is only preached: Myself, say "Om"; another one says "Johova", another "Allah- ho-Mohammad", another cries "Jesus". Gandhiji recognised that all religions are imperfect and because they are imperfect they require perfecting themselves rather than conducting individually. He stated:


"The separate religions Hinduism, Islam, Christianity, Buddhism are different rights converging on the same point even as the tree has the single trunk but many branches and leaves so there is one perfect religion but it becomes many as it passes through the human medium. The Allah of Muslims is the same as the God of Christians and Ishwara of Hindus."

182. Making of a nation State involves increasing secularisation of society and culture. Secularism operates as a bridge to cross over from tradition to modernity. The Indian State opted this path for universal tolerance due to its historical and cultural background and multi-religious faiths. Secularism in the Indian context bears positive and affirmative emphasis. Religions with secular craving for spiritual tolerance have flourished more and survived for longer period in the human history than those who claimed to live in a non-existent world of their own. Positive secularism, therefore, separates the religious faith personal to man and limited to material, temporal aspects of human life. Positive secularism believes in the basic values of freedom, equality and fellowship. It does not believe in hark back either into country's history or seeking shelter in its spiritual or cultural identity dehors the man's need for his full development. It moves mainly around the State and its institution and, therefore, is political in nature. At the same time religion does not include other socioeconomic or cultural social structure. The State is enjoined to counteract the evils of social forces, maintaining internal peace and to defend the nation from external aggression. Welfare State under the Constitution is enjoined to provide means for well-being of its citizens; essential services and amenities to all its people. Morality under positive secularism is a pervasive force in favour of human freedom or secular living. Prof. Holyoake, as stated earlier, who is the father of modern secularism stated that "morality should be based on regard for well-being of the mankind in the person, to the exclusion of all considerations drawn from the belief in God or a future State". Morality to him was a system of human duty commencing from man and not from God as in the case of religion. He distinguished his secularism from Christianity, the living interest of the world that is prospects of another life. Positive secularism gives birth to biological and social nature of the man as a source of morality. True religion must develop into a dynamic force for integration without which the continued existence of human race itself would become uncertain and unreal. Secularism teaches spirit of tolerance, catholicity of outlook, respect for each other's faith and willingness to abide by rules of self-discipline. This has to be for both as an individual and as a member of the group. Religion and secularism operate at different planes. Religion is a matter of personal belief and mode of worship and prayer, personal to the individual while secularism operates, as stated earlier, on the temporal aspect of the State activity in dealing with the people professing different religious faiths. The more devoted a person in his religious belief, the greater should be his sense of heart, spirit of tolerance, adherence of secular path. Secularism, therefore, is not antithesis of religious devoutness. Swami Vivekananda, and Mahatma Gandhi, though greatest Hindus, their teachings and examples of lives give us the message of the blend of religion and the secularism for the good of all the men. True religion does not teach to hate those professing other faiths. Bigotry is not religion, nor can narrow-minded favouritism be taken to be an index of one's loyalty to his religion. Secularism does not contemplate closing each other's voices to the sufferings of the people of other community nor it postulates keeping mum when his or other community make legitimate demands. If any group of people are subjected to hardship or sufferings, secularism always requires that one should never remain insensitive and aloof to the feelings and sufferings of the victims. At moments of testing times people rose above religion and protected the victims. This cultural heritage in India shaped that people of all religious faiths, living in different parts of the country are to tolerate each other's religious faith or beliefs and each religion made its contribution to enrich the composite Indian culture as a happy blend or synthesis. Our religious tolerance received reflections in our constitutional creed.


The preamble of the Constitution inter alia assures to every citizen liberty of thought, expression, belief, faith and worship. Article 5 guarantees by birth citizenship to every Indian. No one bargained to be born in a particular religion, caste or region. Birth is a biological act of parents. Article 14 guarantees equality before the law or equal protection of laws. Discrimination on grounds of religion was prohibited by Article 15. Article 16 mandates equal opportunity to all citizens in matters relating to employment or appointment to any office or post under the State and prohibits discrimination on grounds only of inter alia religion. Article 25 while reassuring to all persons freedom of conscience and the right to freely profess, practice and propagate his religion, it does not affect the operation of any existing law or preventing the State from making any law regulating or restricting any social, financial, political or other secular activity which may be associated with the religious practice. It is subject to providing a social welfare and reform or throwing open all Hindu religious institutions of public character to all classes of citizens and sections of Hindus. Article 26 equally guarantees freedom to manage religious affairs, equally subject to public order, morality and health. Article 27 reinforces the secular character of Indian democracy enjoining the State from compelling any person or making him liable to pay any tax, the proceeds of which are specifically prohibited to be appropriated from the consolidated fund for the promotion or maintaining of any particular religion or religious denomination. Taxes going into consolidated funds should be used generally for the purpose of ensuring the secular purposes of which only some are mentioned in Articles 25 and 26 like regulating social welfare, etc. Article 28(1) maintains that no religious instruction shall be imparted in any educational institutions wholly maintained out of the State funds or receiving aid from the State. Equally no person attending any educational institution recognised by the State or receiving aid from the State funds should be compelled 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 in the case of a minor person his guardian has given his consent thereto. By Article 30(2) the State is enjoined not to discriminate, in giving aid to an educational institution, on the ground that it is a minority institution whether based on religion or language. It would thus be clear that Constitution made demarcation between religious part personal to the individual and secular part thereof. The State does not extend patronage to any particular religion, State is neither pro particular religion nor anti particular religion. It stands aloof, in other words maintains neutrality in matters of religion and provides equal protection to all religions subject to regulation and actively acts on secular part.


In Ratilal Panachand Gandhi v. State of Bombay this Court defined religion that it is not necessarily atheistic and, in fact, there are well-known religions in India like Buddhism and Jainism which do not believe in the existence of God or caste. A religion undoubtedly has different connotations which are regarded by those who profess that religion to be conducive to their spiritual well-being but it would not be correct to say or seems to have been suggested by the one of the learned Brothers therein that matters of religion are nothing but matters of religious faith and religious belief. The religion is not merely only a doctrine or belief as it finds expression in acts as well. In Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar known as Shirur Mutt case this Court interpreted religion in a restricted sense confining to personal beliefs and attended ceremonies or rituals. The restrictions contemplated in Part III of the Constitution are not the control of personal religious practices as such by the State but to regulate their activities which are secular in character though. associated with religions, like management of property attached to religious institutions or endowments on secular activity which are amenable to such regulation. Matters such as offering food to the diety, etc. are essentially religious and the State does not regulate the same, leaving them to the individuals for their regulation. The caste system though formed the kernel of Hinduism, and as a matter of practice, for millenniums 1/4th of the Indian population Scheduled Castes and Scheduled Tribes were prohibited entry into religious institutions like temples, maths, etc. on grounds of untouchability; Article 17 outlawed it and declared such practice an offence. Articles 25 and 26 have thrown open all public places and all places of public worship to Hindu religious denominations or sects for worship, offering prayers or performing any religious service in the places of public worship and no discrimination should be meted out on grounds of caste or sect or religious denomination. In Kesavananda Bharati case and Indira Nehru Gandhi v. Raj Narain this Court held that secularism is a basic feature of the Constitution. It is true that Schedule III of the Constitution provided the form of oath being taken in the name of God. This is not in recognition that he has his religion or religious belief in God of a particular religion but he should be bound by the oath to administer and to abide by the Constitution and laws as a moral being, in accordance with their mandate and the individual will ensure that he will not transgress the oath taken by him. It is significant to note that the Oaths Act, 1873 was repealed by Oaths Act, 1966 and was made consistent with the constitutional scheme of secularism in particular, Sections 7 to 11.


Equally admission into an educational institution has been made a fundamental right to every person and he shall not be discriminated on grounds only of religion or caste. The education also should be imparted in the institutions maintained out of the State fund or receiving aid only on secular lines. The State, therefore, has a missionary role to reform the Hindu society, Hindu social order and dilute the beliefs of caste hierarchy. Even in matters of entry into religious institutions or places of public resort prohibition of entry only on grounds of caste or religion is outlawed.


Dr S. Radhakrishnan, stated that: "Religion can be identified with emotion, sentiments, intensity, cultural, profession, conscious belief of faith." According to Gandhiji : "By religion I do not mean formal religion or customary religion but that religion which underlies all religions." Religion to him was spiritual commitment just total but intentionally personal. In other words, it is for only development of the man for the absolution of his consciousness (sic conscience) in certain direction which he considered to be good. Therefore, religion is one of belief personal to the individual which binds him to his conscience and the moral and basic principles regulating the life of a man had constituted the religion, as understood in our Constitution.


Freedom of conscience allows a person to believe in particular religious tenets of his choice. It is quite distinct from the freedom to perform external acts in pursuance of faith. Freedom of conscience means that a person cannot be made answerable for rights of religion. Undoubtedly, it means that no man possesses a right to dictate to another what religion he believes in; what philosophy he holds, what shall be his politics or what views he shall accept, etc. Article 25(1) protects freedom of conscience and religion of members of only of an organised system of belief and faith irrespective of particular affiliations and does not march out of concern itself as a part of the right to freedom of conscience and dignity of person and such beliefs and practices which are reasonable. The Constitution, therefore, protects only the essential and integral practices of the religion. The religious practice is subject to the control of public order, morality and health which includes economic, financial or other secular activities. Could the religious practice exercise control over members to vote or not to vote, to ignore the National Flag, National Anthem, national institutions? Freedom of conscience under Article 25 whether guarantees people of different religious faiths the right to religious procession to antagonise the people of different religious faiths or right to public worship? It is a fact of social and religious history in India that religious processions are known to ignite serious communal riots, disturb peace, tranquillity and public order. The right to free profession of religion and exercising right to organise religious congregations does not carry with it the right to make inflammatory speeches, nor be a licence to spread violence, nor speak religious intolerance as an aspect of religious faiths. They are subject to the State control. In order to secure constitutional protection, the religious practices should not only be an essential part but should also be an integral part of proponent's religion but subject to State's control. Otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be quoted as religious forms and make a claim for being treated as religious practices. Law as a social engineer provides the means as well as lays down the rules for social control and resolution of conflicts of all kinds in a human society. But the motive force for social, economic and cultural transformation comes from individuals who comprise the society. They are the movers in the mould of the law as the principal instrument of an orderly transient to a new socioeconomic order or social integration and fraternity among the people. The Constitution has chosen secularism as its vehicle to establish an egalitarian social order. I am respectfully in agreement with our Brethren Sawant and Jeevan Reddy, JJ. in this respect. Secularism, therefore, is part of the fundamental law and basic structure of the Indian political system to secure to all its people socioeconomic needs essential for man's excellence and of (sic his) moral wellbeing, fulfilment of material and prosperity and political justice.


SEPARATION OF POLITICS AND RELIGION


Black's Law Dictionary (6th Edn.) page 1158 defined 'political' as pertaining or relating to the policy or the administration of Government, State or national; pertaining to, or incidental to, the exercise of the functions vested in those charged with the conduct of Government; relating to the management of affairs of State as political theories; of or pertaining to exercise of rights and privileges or the influence by which individuals of a State seek to determine or control its public policy; having to do with organization or action of individuals, parties, or interests that seek to control appointment or action of those who manage affairs of a State. Political party was defined as an association of individuals whose primary parliamentary purposes are to promote or accomplish elections or appointments to public offices, positions or jobs. A political party, association or Organisation which makes contributions for the purpose of influencing or attempting to influence the electoral process of any individual or political party whose name is presented for election to any State or local elective public office, whether or not such individual is elected. Politics in positively secular State is to get over their religion, in other words, in politics a political party should neither invoke religion nor be dependent on it for support or sustenance. Constitution ensures to the individual to protect religion, right to belief or propagate teachings conducive for secular living, later to be controlled by the State for betterment of human life and progress. Positive secularism concerns with such aspects of human life. The political conduct in his "Political Thought by Dr Ambedkar" compiled by R.K. Ksheersagar, Intellectual Public House, 1992 Edn. at page 155, stated that:


"In India the majority is not a political majority. The majority is born but not made, that is the difference between a communal majority and a political majority. A political majority is not purely a majority, it is the majority which is always made, unmade and remade. A communal majority is unalterable majority in its ethics, its attitudes. Whether the Hindu communal majority was prepared to accept the views of the minorities, whether it was prepared to conceive the constitutional safeguards to the minorities." The problems according to Dr Ambedkar should be solved by adopting right principles which should be evolved and applied equally without fear or favour. According to him the majority community should accept a relative majority and it should claim absolute majority. Communal majority is not a political majority and in politics the principle of one vote one value should be adopted irrespective of related considerations. According to Abul Kalam Azad: "India is a democracy secular where every citizen whether he is Hindu, Muslim or Sikh has equal rights and privileges. Rise of fundamentalism and communalisation in national or regional politics are anti-secular and tend to encourage separatist and divisive forces laying the seeds to disintegrate the parliamentary democratic system. The political parties or candidates should be stopped from running after vote banks and judicial process must promote the citizens' active participation by interpretation of the Constitution and the laws in proper perspective in order to maintain the democratic process on an even keel."

For a political party or an Organisation that seeks to influence the electorates to promote or accomplishing success at an election for governance of parliamentary form of Government, the principles are those embedded in the Directive Principles of the Constitution vis-a-vis the Fundamental Rights and the Fundamental Duties in Part IV A and should abide by the Constitution and promote tolerance, harmony and the spirit of commonness amongst all the people of India transcending religious, linguistic, regional or sectional diversities and to preserve the rich heritage of our composite culture, to develop humanism, spirit of reformation and to abstain from violence. Therefore, the manifesto of a political party should be consistent with these fundamental and basic features of the Constitution, secularism, socioeconomic and political justice, fraternity, unity and national integrity.

Under Section 29-A of the Representation of the People Act, 1951 for short 'R.P. Act' registration of a political party, or a group of individual an application to the Election Commission constituted under Article 324 for its registration as political party with a copy of the memorandum or rules or regulations of the association of the body signed by its Chief Executive Officer. The application shall contain a specific provision that the association or the body shall bear true faith and allegiance to the Constitution of India as by law established and its members shall be bound by socialism, secularism and democracy and would uphold the sovereignty and integrity of India. It is, therefore, a mandatory duty of every political party, body of individuals or association and its members to abide by the Constitution and the laws; they should uphold secularism, socialism and democracy, uphold sovereignty and integrity of the nation. Section 123(3) prohibits use of religion or caste in politics and declares that the promotion or attempt to promote violence and hatred between different classes of citizens of India on grounds of religion and caste for the furtherance of the prospects at the election of the candidate or for affecting the election of any candidate was declared to be a corrupt practice. As per sub-section (3-A) of Section 123 the promotion of, or attempt to promote feeling of enmity or hatred between different classes of Indian citizens on grounds of religion, etc. by a candidate, his election agent or any person with his consent to further the election prospects of that candidate or for prejudicially affecting the election of any candidate was declared as corrupt practice. A political party, therefore, should not ignore the fundamental features of the Constitution and the laws. Even its manifesto with all sophistication or felicity of its language, a political party cannot escape constitutional mandate and negates the abiding faith and solemn responsibility and duty undertaken to uphold the Constitution and laws after it was registered under Section 29-A. Equally it/they should not sabotage the same basic features of the Constitution either influencing the electoral process or working the Constitution or the law. The political party or the political executive securing the governance of the State by securing majority in the legislature through the battle of ballot throughout its tenure by its actions and programmes, it is required to abide by the Constitution and the laws in letter and spirit.


Article 25 inhibits the Government to patronise a particular religion as State religion overtly or covertly. Political party is, therefore, positively enjoined to maintain neutrality in religious beliefs and prohibit practices derogatory to the Constitution and the laws. Introduction of religion into politics is not merely in negation of the constitutional mandates but also a positive violation of the constitutional obligation, duty, responsibility and positive prescription of prohibition specifically enjoined by the Constitution and the R.P. Act. A political party that seeks to secure power through a religious policy or caste orientation policy disintegrates the people on grounds of religion and caste. It divides the people and disrupts the social structure on grounds of religion and caste which is obnoxious and anathema to the constitutional culture and basic features. Appeal on grounds of religion offends secular democracy.


An appeal to the electorates on the grounds of religion offends secular democracy. In S. Veerabadran Chettiar v. E. V. Ramaswami Naicker38 (SCR at pp. 1217 & 1218), this Court held that the courts would be cognizant to the susceptibilities of class of persons to which the appeal to religious susceptibility is made and it is a corrupt practice. Interpreting Section 123(3-A) this Court held that:


"The section has been intended to respect the religious susceptibilities of persons of different religious persuasions or creeds ... very circumspect in such matters and to pay due regard to feelings and religious emotions of different classes of persons with different beliefs irrespective of the consideration whether or not they share those beliefs, or whether they are rational or otherwise......

192. This Court in Shubnath Deogram v. Ramnarain Prasad39 held that (SCR p. 959) "[I]t would appear that the pleasure of the deities is indicated through the cock taking the food that is given to it and that the deities only thereafter accept the sacrifice of the cock. Therefore, when the leaflet stated that food should be given to the cock in the shape of votes what was meant was that the deities would be pleased if votes were cast in the box with the cock symbol."


193. In Z.B. Bukhari v. Brijmohan33 this Court held thus : "Our Constitution-makers certainly intended to set up a Secular Democratic Republic the binding spirit of which is summed up by the objectives set forth in the preamble to the Constitution. No democratic political and social order, in which the conditions of freedom and their progressive expansion for all make some regulation of all activities imperative, could endure without an agreement on the basic essentials which could unite and hold citizens together despite all the differences of religion, race, caste, community, culture, creed and language. Our political history made it particularly necessary that these differences, which can generate powerful emotions, depriving people of their powers of rational thought and action, should not be permitted to be exploited lest the imperative conditions for the preservation of democratic freedoms are disturbed. "


In another case S. Harcharan Singh v. S. Sajjan Singh this Court fully discussed the question of what constitutes an appeal on grounds of religion falling within the scope of Section 123(3) and Section 123(3-A) of the R.P. Act, when there is an appeal on the ground of religion. Section 123(3) of R.P. Act should not be permitted to be circumvented to resort to technical arguments as to interpretation of the section as our Constitution is one of secular democracy. In S. Veerabadran Chettiar case this Court held thus: (SCR pp. 1217-18) "In our opinion, placing such restricted interpretation on the words of such general import, is against all established canons of construction. Any object however trivial or destitute of real value in itself, if regarded as sacred by any class of persons would come within the meaning of the penal section. Nor is it absolutely necessary that the object, in order to be held sacred, should have been actually worshipped. An object may be held sacred by a class of persons without being worshipped by them. It is clear, therefore, that the courts below were rather cynical in so lightly brushing aside the religious susceptibilities of that class of persons to which the complainant claims to belong. The section has been intended to respect the religious susceptibilities of persons of different religious persuasions or creeds. Courts have got to be very circumspect in such matters, and to pay due regard to the feelings and religious emotions of different classes of persons with different beliefs, irrespective of the consideration whether or not they share those beliefs, or whether they are rational or otherwise, in the opinion of the court."


In Mullapudi Venkata Krishna Rao v. Vedula Suryanarayana this Court held thus : "There is no doubt in our mind that the offending poster is a religious symbol. The depiction of anyone, be it N.T. Rama Rao or any other person, in the attire of Lord Krishna blowing a 'shanku' and quoting the words from the Bhagavad Gita addressed by Lord Krishna to Arjuna that his incarnation would be born upon the earth in age after age to restore dharma is not only to a Hindu by religion but to every Indian symbolic of the Hindu religion. The use by a candidate of such a symbol coupled with the printing upon it of words derogatory of a rival political party must lead to the conclusion that the religious symbol was used with a view to prejudicially affect the election of the candidate of the rival political party."


The contention of Shri Ram Jethmalani that the interpretation and applicability of sub-sections (3) and (3- A) of Section 123 of R.P. Act would be confined to only cases in which individual candidate offends religion of rival candidate in the election contest and the ratio therein cannot be extended when a political party has espoused as part of its manifesto a religious cause, is totally untenable. This Court laid the law though in the context of the contesting candidates, that interpretation lends no licence to a political party to influence the electoral prospects on grounds of religion. In a secular democracy, like ours, mingling of religion with politics is unconstitutional, in other words a flagrant breach of constitutional features of secular democracy. It is, therefore, imperative that the religion and caste should not be introduced into politics by any political party, association or an individual and it is imperative to prevent religious and caste pollution of politics. Every political party, association of persons or individuals contesting election should abide by the constitutional ideals, the Constitution and the laws thereof. I also agree with my learned Brethren Sawant and Jeevan Reddy, JJ., in this behalf.


Rise of fundamentalism and communalisation of politics are anti-secularism. They encourage separatist and divisive forces and become breeding grounds for national disintegration and fail the parliamentary democratic system and the Constitution. Judicial process must promote citizens' active participation in electoral process uninfluenced by any corrupt practice to exercise their free and fair franchise. Correct interpretation in proper perspective would be in the defence of the democracy and to maintain the democratic process on an even keel even in the face of possible friction, it is but the duty of the court to interpret the Constitution to bring the political parties within the purview of constitutional parameters for accountability and to abide by the Constitution, the laws for their strict adherence.



Supreme Court of India

Sri Sri Sri Lakshamana ... vs State Of Andhra Pradesh & Anr on 24 January, 1996

Article 25, assist language amplifies, assures to every person subject to public order, health and morality, freedom not only to entertain his religious beliefs, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outwardly act as he thinks proper and to propagate or disseminate his ideas for the edification of others. Mahant as head of the spiritual fraternity and by virtue of his office has to perform the duties of a religious teacher. The deep layers of religion used in Articles 25 and 26 and its manifest efficacy in social well-being and integration in the onward march of civilisation from tribal society to modern life would appropriately be dealt with in the connected cases relating to Archakas. Suffice it to state that it is the duty of Mahant to practise and propagate the religious tenets of which he is an adherent and if any provision of law prevents him from propagating his doctrine that would certainly affect the religious freedom guaranteed under Article 25. Math or a specific endowment per se cannot practise or propagate religion. It can be done only by individual persons. Whether those persons propagate their personal views or the tenets for which the institution was started, is immaterial for the purposes of Article 25. Only propagation of beliefs is protected, it does not matter whether the propagation takes place in a temple or any other meeting.



Supreme Court of India

Rev. Stainislaus vs State Of Madhya Pradesh & Ors on 17 January, 1977

Equivalent citations: 1977 AIR 908, 1977 SCR (2) 611

Author: A Ray

Bench: Ray, A.N. (Cj), Beg, M. Hameedullah, Sarkaria, Ranjit Singh, Shingal, P.N., Singh, Jaswant

We have no doubt that it is in this sense. that the word 'propagate' has been used in Article 25 (1), for what the Article grants is not the right to convert another person to one's own religion, but to transmit or spread one's religion by an exposition of its tenets. It has to be remembered that Article 25 (1) guarantees "freedom of conscience" to every citizen, and not merely to the follow- ers of one particular religion, and that, in turn, postu- lates that there is no fundamental right to convert another person to one's own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguish