Freedom of religion, judicial interpretation of freedom under the constitution of India and in the United States constitution.

1. Introduction: India, is a land of multiple religions and sects for centuries and the diversity of faiths and sects in India is unparalleled in the world. India, for centuries, has abided by its commitment to accommodate and allow all the religions in her geography to flourish and prosper. It has dealt with situations, both cathartic ( involving strong emotions) )and affable (accommodating, gentle , sociable , friendly ) arising out of the presence of such diversity for centuries and has devised its own way of managing multiculturalism in India, which the western world is grappling with currently. This diversity is viewed by the majority of Indians, about 53% of the population, as an asset that benefits the nation rather than causing any harm. Although a wide population of religions may not know about each other’s beliefs and may not have a common ground, India has chosen a path of pluralism rather than being exclusivist. The Constitution of India strengthens this belief system of Indians and enables every community to practice the religion that they have subscribed to, without any disturbance. This adherence to pluralism and commitment to constitutional values has made India the only secular country in South Asia, whereas its neighbours like Pakistan, Bangladesh etc. directly or indirectly support a particular religion.

1. What is Religion?

If we consider God, an eternal ( without beginning or end)  question before mankind, then religion is its answer. Religion is trying to answer the timeless speculation of mankind regarding the functioning of the universe and the origins of the divine. Kant was of the opinion that the basic aim of the creation of nature by God was to turn man into a moral being, and so theology progresses, theology stating that a rational proof of God is not significant per se but society can only be morally superior with the presence of the divine. Hinduism views religion very differently, it may appear polytheistic from the surface and some may describe it as henotheistic ( word coined by max muller) which means without denying the existence of other gods worship a particular God, it believes divinity exists in everything and everyone, it’s all-pervasive and omnipresent. Therefore, it is obvious that if God is the great question and religion is answering it, there has to be a mechanism for this answer to be conveyed to those seeking answers to this question. The Britannica encyclopedia describes religion as, that which the human beings consider “holy, sacred, absolute, spiritual, divine, or worthy of especial reverence”, it is understood as a relation between man and the divine and the believers of respective religions join together “to perform devotional or contemplative practices” known as rituals. Religion essentially consists of two aspects, 1) its philosophy which is the moral, ethical or universal and metaphysical teaching of it and the other is 2) rituals or practices which prescribe the social structure and the ways of realising the true nature of the philosophy. But when philosophy and rituals contradict, it is philosophy that will take precedence and not otherwise, rituals can be put to test of the philosophy of the religion but the contrary would not make sense.

Concept of Secularism in India:

amendment of Preamble adding word secular : The 42nd Constitutional amendment in 1976 added the word ‘secular’ to the preamble of the Constitution. India being a secular state, is a no state religion which means that it follows no particular religion.

Even Prior to the 42nd Amendment, in the case of Indira Nehru Gandhi Vs. Raj Narain (1975) (SC) it was observed by the Supreme Court based on Provision Contained in the Constitution that Secularism is a basic feature of the Constitution. In Santosh Kumar case SC held preamble does not control the meaning of the Provision of Constitution. the words  used in preamble cannot override the clear and express Provisions of A- 25 to 30 or A-351

Later on in 1977 a committee was formed by the union govt to consider the Proposal to omit the word secular and Socialist from the Preamble but left untouched. 

meaning of word Secular: In the leading case of S R Bommai Vs. UOI  (SC) (1994) Justice B. P Jeevan Reddy observed that the expression Socialist and Secular are not capable of precise definition. This case was related to the dismissal of the BJP Government in 4 states in the wake of Ayodhya incident on 6th December 1992 and the court has validated the President rule imposition in these states. The Court also reiterated that Secularism is a basic feature of our Constitution and any State Government which acts against that ideal Can be dismissed. It was held that in the matter of state, religion has no place. Policies and religion Could not be mixed.

In Ahmedabad St. Xavier’s College v. State of Gujarat (1975)(SC), case SC held that Secularism neither means anti-god nor pro-god. It just ensures that no one is differentiated on the basis of his religion eliminating the concept of God in matters of state policy or State Subject. 

The western idea of “Secularism” was obtrude (means intruded) on Indians by the colonial masters and upon independence the Indians rejected it, and a customized version of it was introduced, suitable to the peculiar socio-cultural and political situations of India, but this “desi” version is also open multiple interpretations. India has always been the land which welcomed all faiths and religions from all corners of the world, and the people having diverse faiths also found India to be a conducive place to live freely and remain undisturbed. Gradually, these faiths started influencing each other and also the polity of the country, and rightly so, because when one is surrounded by superior philosophies continuously it is somewhat strenuous to not be theist( those who believe in god), and slowly the philosophical characteristic of India developed into a theist State and not otherwise. The Constituent Assembly was divided over the amendment, whether to begin the Constitution with “In the name of God”, many arguments were made for and against pertaining to the relation of the State with religion, but finally the amendment was declined but the assembly did not agree over the term secular either. The assembly was unanimous on the point that independent India should be secular as secularism is essential for democracy to prosper in India, but what kind of secularism India should adopt was a conundrum( confusing and difficult Problem/ Question to answer ).The word “Secular” was added to the Constitution vide the 42nd Constitution Amendment after the historic virtues of tolerance and harmony were rejuvenated by the efforts of various laws and judicial interpretations.

Secularism in India v/s US: India follows the concept of ‘neutrality’ and ‘positive role’ towards religion. The State can introduce religious reforms, protect minorities and formulate policies on religious matters. For example, laws to remove Sati Pratha, Triple Talaq, marriage law etc, whereas the US follows the principle of ‘non-interference’ in the matters of religion. The USA State cannot take any action in religious matters.

This concept of Secularism in India is not similar to the Doctrine of Secularism in America, USA tries to establish a rigid distinction between the State and the religion. India adopts an affirmative side of secularism, wherein it is neutral in terms of religion, and is in consonance with its ancient legacy of accommodating all faiths and abandoning none. According to Donald E. Smith, the Indian way of secularism refers to the non-religious functioning of the State, it has a non-communal and non-sectarian connotation and not a strict schism between state and religion. India may not be a completely theist state but it is definitely not an atheist (unbeliever of God ) state. India has its own way of dealing with multiculturalism and relies more on customization and adjustment with all beliefs than stubbornly rejecting them.

1. Constitutional framework of Freedom of Religion

As stated earlier, if God is the question and religion is attempting to answer it, then this answer has to be conveyed to everyone who may be seeking an answer to that question. The Indian Constitution, therefore, provides a mechanism to discover and spread one’s beliefs. Indian Constitution believes that every citizen in India has a basic level of conscience and allows him to discover the full potential of this conscience and establish his relationship with God or his divine and therefore guarantees certain fundamental rights with certain restrictions, these freedoms are covered under Article 25, 26, 27, 28.

Article 25(1) gives the people the freedom to practice, profess and propagate one’s religion subject to public order, morality and health and other provisions of the Part III of the constitution. 

Practice means to Perform the prescribed  religions duties, rites and rituals.

profess means to declare freely and openly one’s own faith and belief 

Propagate means to spread and Publicize religious views , Philosophy of religion for the education of others. i.e to communicate belief to others.

Propagation Vs forcible conversion : there is a thin line difference in propagation and Compulsion. Sometimes this thin line is crossed and persuasion takes the form of compulsion, in Rev, Stanislaus v State of M.P. (1977) (SC) The Supreme Court held that the “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. “Any attempt made to forcibly convert any person will flame communal tensions that would incontrovertibly harm public order and is a violation of the restriction of the Article.  In this case the validity of MP and Orissa Act to prohibit forcible conversion of any person was challenged on the ground that they violate the right to Propagate one’s religion. These Acts were Passed after a commission headed by Justice K.C Niyogi found that Christian missionaries were indulging in conversion by force and fraud. Stanislaus, a Christian missionary challenged the validity of these Acts and Submitted that these Acts infringed his right under A-25 & 26. The Supreme court rejected his plea.

Note: Stanislaus= Patron of Poland means someone who achieves glory or fame. 

Note: Section 3 of the Madhya Pradesh Freedom Act 2021 prohibits conversion or an attempt to convert from one religion to another religion through misrepresentation, use of threat or force, fraud, undue influence, coercion, allurement, or marriage. Earlier there was Madhya Pradesh Dharma Swatantrya Adhiniyam [Madhya Pradesh Freedom of Religion Act], 1968.

Restrictions on freedom of Religions

In the name of religion no act can be done against Public order, morality and Public health or against other fundamental rights in Part III. Therefore religious freedom of Practice, Profess and Propagate is not absolute but subject to the aforesaid restrictions of Public order, health, morality and other fundamental rights. For example in the name of religion  untouchability, human trafficking, etc. can’t be tolerated.

Gulam Abbas Vs. State of UP (1981)(SC)

Muslim have no right to stop the Procession of a community on the ground that music being played operates as a nuisance or offends against their Sentiments.

Gulam Abbas Vs. state of UP /(1984) (SC) 

Direction given by supreme Court for Shifting a property connected with religion to avoid clashes between the religions communities or sects does not affect religious rights, being in the interest of Public order.

State empower to restrict or regulate Secular activity: 25(2) (a) empowers the State to regulate or restrict those activities of any religious practice which are economic, political, financial in nature or any other activity which is secular and 

For example, the Government has made Provisions in the income tax, GST, custom or other laws to regulate religious institutions.

Empower State for formulation of Social welfare reform Policy and opening of Public religious Place of Hindus for all Section of Hindus: A – 25(2) (b) allows the State for the formulation of social welfare and reform and opening up of religious places of public type for all sections of Hindus.

Here the state can bring reform by law to eradicate those social practices and dogmas (Propaganda) which are a hurdle in country development. Such law does not affect the essential rites of religion. such laws are to remove evil from the Society which are in the name of religion. Examples may be removing the sati system, bigamy, Polygamy, system of devadasis, untouchability, entry in temples for everyone irrespective of caste, social inequality etc.

Sabarimala Temple case 4:1

The Supreme Court of India passed a landmark judgment on 28 September, 2018 in which it allowed the entry of women inside the Sabarimala Temple. This was seen in the case of Indian Young Lawyers Association vs The State Of Kerala ((2019) 11 SCC 1; 2018 (8) SCJ 609) which was presided over by CJI Dipak Mishra, Justice Rohinton Nariman, Justice DY Chandrachud, Justice Indu Malhotra, Justice A M Khanwilkar.

FACTS OF THE CASE:

The Sabarimala Temple, considered Lord Ayyappa’s residence, is located in the Periyar Tiger Reserve in the Pathanamthitta District of Kerala’s Western Ghat mountain ranges. The temple is well-known for its unusual religious practices—devotees perform a 41-day penance, foregoing worldly pleasures, before visiting the shrine. Devotees regard Lord Ayyappa as a celibate(unmarried)  divinity. To protect chastity, women in their menstruating years’ (between the ages of 10 and 50) were traditionally barred from attending the temple.

Women’s exclusion was first challenged in the Kerala High Court. In S. Mahendran v The Secretary, Travancore, the Kerala High Court ruled in 1991 that the exclusion was constitutional and reasonable because it was a long-standing habit. The practice did not infringe on the rights of female devotees to equality and freedom of religion.

The Indian Young Lawyers Association petitioned the Supreme Court in 2006, contesting the Sabarimala Temple’s prohibition on women entering the temple grounds. According to the Association, the custom violates the Right to Equality under Article 14 since it is “derogatory to the dignity of women.” According to Article 25, “all persons are equally entitled to freedom of conscience and the right freely to profess, practice, and promote religion.” The exclusion of female worshippers is a violation of such rights.

The Supreme court considered the situation and formulated the following issues:

• Is it a violation of the Right to Equality, the Right against Discrimination, and the Abolition of Untouchability to restrict menstruation women from entering the Sabarimala Temple?
• Are Lord Ayyappa’s worshippers a separate religious group, with the authority to regulate their own affairs in religious matters?
• Is the exclusion of woman an “essential religious practice” under Article 25?
• Does Rule 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules allow a “religious denomination” to exclude women between the ages of 10 and 50 from entering?
• Do the Public Worship Rules, which enable the custom, contradict the parent legislation, which forbids discriminating practices?

The majority concluded that the barring of women from Sabarimala violated the fundamental rights of women aged 10 to 50. They further claimed that devotees of Lord Ayyappa did not form a new religious denomination. The custom, according to Justices Misra, Khanwilkar, and Chandrachud was not an essential religious practice. While the majority of the judges did not expressly indicate if the tradition violated the right to equality under Article 14, they did state that the practice was discriminatory under Article 15. According to Justice Chandrachud, the protection against untouchability in A-17 is broad and includes any type of social exclusion based on ideals of ‘purity.’ Furthermore, Rule 3(b) of the Public Worship Rules, permitted the practice of prohibiting women as unconstitutional. In the Judgment matrix, SCO breaks down each judge’s decision on key questions in the case.

The court ruled by a 4:1 majority that the practice infringed the fundamental rights to equality, liberty, and religious freedom, as well as Articles 14, 15, 19(1), 21, and 25. (1). Rule 3(b) of the Kerala Hindu Places of Public Worship Act was declared invalid. Rule 3(b) permitted Hindu denominations to bar women from public places of worship provided the ban was based on custom. The Supreme Court has permitted women of all ages to enter the Sabarimala Temple, ruling that “devotion cannot be subjected to gender discrimination.”

In her dissent, Justice Indu Malhotra stated, “It is not for the courts to determine which of these religious practices are to be set down, unless they are harmful, repressive (means oppressive) , or a social ill, like Sati.”

Surjeet Singh Chhabra Vs. UOI (1997) (SC) in this case Petitioner being a sikh was alleged to be illegally importing the gold in form of Kara, a symbol of religious wear by sikh community. It was held that gold Can’t be exempted from confiscation under the FERA and custom Act. Provision of A-25 is Subject to the regulation of the state .

1. H- Quareshi Vs. State of Bihar (1985) (SC) it was held that sacrifice of cow on Bakrid day was not an essential part of Mohammedan religion and hence Could be Prohibited by the state under A 25 (2)(a) .

State Of W.B vs Ashutosh Lahiri on 16 November, 1994: Repelling this contention the Constitution Bench held that even though Article 25(1) granted to all persons the freedom to profess, practice and propagate religion, as slaughter of cows on Bakrid was not an essential religious practice for Muslims, total ban on cow’s slaughter on all days including Bakrid day would not be violative of Article 25(1). 

Das C.J. referred to the historical background regarding cow slaughtering from the times of Mughal emperors. Mughal Emperor Babur saw the wisdom of prohibiting the slaughter of cows as and by way of religious sacrifice and directed his son Humayun to follow this. Similarly, Emperors Akbar, Jehangir and Ahmad Shah, it is said, prohibited cow slaughter. In the light of this historical background it was held that total ban on cow slaughter did not offend Article 25(1) of the Constitution.

In view of this settled legal position it becomes obvious that if there is no fundamental right of a Muslim to insist on slaughter of healthy cow on Bakra-EId day, it cannot be a valid ground for exemption by the State under Section 12 which would in turn enable slaughtering of such cows on Bakra-EId. 

1. Ismail Faruqui Vs.  UOI (1995) ( SC) Ayodhya land acquisition challenged

Section 7 of the acquisition of Certain areas of Ayodhya Act containing a mandate to maintain Status quo at the disputed site Ram Janan Bhumi Babri Masjid was challenged . The court held that the right to practice, Profess & Propagate religion does not necessarily include the right to acquire or own or possess Property. Places of religious worship can be acquired by state, such acquisition does not violate A-25/ 26 . This right does not extend to the right of worship at any and every place of worship. Protection under this right is to religious practice which forms an essential and integral part of religion.

commissioner of Police Calcutta Vs. Acharya Jagdishwaranand  (2004) (SC)  Arand Marg case Here Supreme Court held that Tandava dance in a procession by Anand Margis carrying Lethal weapons and human Skull was not essential religious rites and hence order Prohibiting such procession under Section 144 of C R. PC  in the interests of Public order and morality was not violative of right underA-25/26. Even accepting Tandava dance prescribed as an essential religious rite for Anand Margi to follow, it does not necessarily imply that they have to Perform in a Public place.

What are essential religious rites ?

it is important to understand essential Religious rites which are only Protected under A-25. The court in this case held that those rites which can’t be subtracted or added, are of Permanent nature and so essential that can’t be changed, these are Core beliefs upon which religion is founded. essential practices are fundamental to follow religious belief . it is the Practice upon which superstructure of religion is built, without which religion will be no religion. In this case it was held that Anand Marg Came into existence in 1955 and between 1955 to 1966 there was no Tandava dance,  such dance was introduced only in 1966, therefore not essential rites to the religion. 

Freedom to establish religious institutions : Article 26 states that every religious denomination or sect shall be granted the right

1. to establish and maintain institutions for religious and charitable purposes,  A-26(a)
2. to manage its own affairs in matters of religion, A-26(b)
3. to own and acquire property both movable and immovable and A-26(c)
4. to administer such Property in accordance with law A-26(d)

subject to public order, morality and health.

A-25 Vs. A-26

while A-26 provides freedom to the individual whereas A-26 provides right to a religious denomination ( community) i.e. right to an organized body or institution. 

The individual is absolutely free to find his own conscience and practice it freely. This freedom of practice involves adhering to all kinds of rituals and practices which go along the belief and religion, when the individual makes the declaration of his conscience, it takes the countenance of professing his belief and when this declaration becomes invitation to others to join this belief by persuasion and awareness it takes the shape of propagation. 

Education of Religion in Educational institute:

Aruna Roy VS UOI  (2002) (SC) 

Issue: The petitioners argue that the National Curriculum Framework for School Education 2000 (NCFSE) cannot be administered without clearance from the Central Advisory Board of Education (CABE). They say that CABE, which was created in 1935, has historically been consulted prior to the development of new policies regarding education, and that its approval is required for such policies to be legitimate. The respondents, on the other hand, maintain that there is no legal requirement for CABE to be involved in the NCFSE approval process. They argue that CABE’s alleged failure to reconstitute properly since 1994 makes its support useless for implementing the NCFSE.

Issue: religious instruction in school 

Another significant factor that merits urgent attention now is religion. Although it is not the only source of essential values, but it certainly is a major source of value generation. What is required today is not religious education but education about religions, their basics, the values inherent therein and also a comparative study of the philosophy of all religions. These need to be inculcated at appropriate stages in education right from the primary years. Students have to be given the awareness that the essence of every religion is common, only the practices differ. The students should also be led to believe that differences of opinion in certain areas are also to be respected. The Chavan Committee (1999) strongly urges education about religions as an instrument of social cohesion and social and religious harmony. The UNESCO Department for Intercultural Dialogue and Pluralism for a Culture of Peace pleads for “Spiritual Convergence” and proposes to promote dialogue among the different religious and spiritual traditions in a world where intra and inter-religious conflicts have become the order of the day (January 2000). It observes “that it is from early childhood that children should be introduced to the discovery of “otherness”, and to the values of tolerance, respect, and confidence in the “other” that will bring about a change of behaviour and attitudes towards others. The introduction of specific teaching of intercultural and interreligious dialogue, through the adequate pedagogical tools, is conceived as a means to foster reciprocal knowledge of shared values contained in the message issued by religious and spiritual traditions, which can be considered as a common spiritual and cultural heritage”.

Education about religions must be handled with extreme care. All steps must be taken in advance to ensure that no personal prejudice or narrow minded perceptions are allowed to distort the real purpose of this venture and no rituals, dogmas and superstitions are propagated in the name of education about religions. All religions therefore have to be treated with equal respect (Sarva Dharma Sambhav) and that there has to be no discrimination on the ground of any religion (Panthnirapekshata).”

A value based education to school children based on the basis of all religion was challenged as Anti Secular but court held that Study of religion in school education is not against the Secular Philosophy of the Constitution. Justice Dharmadhikari Said secularism has a positive meaning that is developing the understanding and respect towards different religions i.e. religious Pluralism. The essence of secularism is non-discrimination by state based on religious differences . Secularism Can be practiced by adopting Complete neutral approach towards different religion and positive approach by making one section of religious people to understand and respect the faith and belief of Other religion. 

Appointment of Archakas or Pujari or priests  whether a secular function or religious function?

seshammal Vs. State of TN (1972) (SC) 

Amendments were made in Tamil Nadu Hindu Religious and charitable Endowments (Amendment) Act 1970 where under heirs alone succession to the office of Archakas was taken away. It was held that Archakas are just servants or employees because they are in receipt of emoluments or perquisites . As a Servant he is subject to discipline and control of trustees, Accordingly appointment of Archakas is a secular act and therefore outside the A-26. 

Bhuri Nath Vs State of J&K (1997) CSC)

The validity of the J&K Mata Vaishno Devi Act 1988 having provision for abolishing the hereditary Post of the priest and making Provision for appointment of Priest by state for better management of Temple and its endowments was challenged by the petitioner on the ground of A-25/26. further the government can abolish his ( Priest) customary share in offering of the deity. It was held that services of priests is a Secular activity and that may be regulated by the State under A-25 (2). Courts have to distinguish between religious service and the person who performs the service. Performance of rituals is religious but securing Services of a priest who perform rituals is not a religious but secular

Sri Adi vishweshwara of kashi vishwanath temple  Vs. State of UP (1997) (SC)

U.P Kashi Vishwanath Temple Act 1983  which divested the Pandas of their right to manage the temple and receive offering was challenged as violative of right under A-21,25 & 26. But SC has upheld the validity of the Provisions of the Act. SC observed that 

1. Religious freedom under A-25 & 26 is intended to be a guide to community life and ordain every religion to act according to its cultural and Social demand to establish an egalitarian social order. A -25& 26 therefore strike a balance between rigidity of right to religious belief & faith and their intrinsic restriction in matters of religion, religious practice.
2. The traditional religious model is different from the constitutional religious model. The legitimacy of true categories is required to be adjudged Strictly Within the parameters right of an individual and legitimacy of the state for Social Progress, well beings and reforms, Social intensification and national unity.
3. Law is a tool of social engineering and an instrument of social changes evolved by a gradual and Continuous process. All Secular activities which may be associated with religion but not essential Part of it may be  amenable to state regulation but what constitutes the essential part of a religion may be ascertained primarily from the doctrine that religion itself according to its tenants, historical background and change in evolved Process, etc. 
4. The concept of essentiality is not  in itself a determinative factor, it must be decided whether Practice or matters are considered integral by the community itself. 
5. Right to manage a Temple or endowment is not an integral part of religion or religious practice therefore Such activities are Secular activity and the State could regulate them by appropriate legislation as per A-25(2) . Right to get offering is not a vested right of Pandas but a right Coupled with duty to render Service which could be regulated by state by law as a secular function.
6. Protection under A-25&26 is not limited to matters of belief but extended to add one in furtherance of religion and therefore contain guarantee for rituals, Ceremonies, observations, made of worship which is an integral part of religion but every human activity is not protected under the constitution in the grabs of religion.  Among Hindus, human action from birth to date are regarded as religious in character in one facet or other. A-25&26 must be viewed with pragmatism. 

shri Jagananath Temple Puri Mangt. Committee Vs. Chinsamani Khuntia (1997) (SC ) Right of Serak to get share of the offering as recognised in the record of rights for or connected with seva Puja of a temple is not a religious right. sevaks are Servants of temple and duties they Perform including Sweeping and collecting offerings after sera Puja are Secular activities even if associated with religious practice. State can regulate Secular activities. The court has allowed Small percentage of the money given in offering to the sevak by way of their remuneration.

In Ratilal Panachand Gandhi v State of Bombay, the court stated, “the appointment of the Charity Commissioner as a trustee of any public trust by the court without any reservation in regard to religious institutions like temples and Maths is unconstitutional and must be held to be void “, it is the absolute right of the religious sect to utilize its funds for its religious purposes and this decision cannot be made by any commissioner or court, though in line with the objectives of the trust of the sect, it shall be a transgression.

Essential Practice test : The Essential Practice test is devised by the Supreme Court to determine which religious practices are essential or fundamental to a particular religion and which are just superstitions. However, this is a debatable test and there are severe questions about its relevance in a secular state owing to its arbitrary application, nevertheless, the Supreme Court has assumed the role of final arbiter of the issue of the essentiality of a practice in religion. In the Shirur Mutt case, the Supreme Court held that “a religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress”, indirectly abandoning the assertive approach as used in America, where the believer has to assert his belief in religious practices.

Shayara Bano Vs. Union of India (2017) (SC) The Supreme court held in Shayara Bano case that instantaneous triple talaq (talaq e biddat) or unilateral divorce is not an essential practice of Islam and proclaimed it unconstitutional. Not only that, the supreme court also held that such Practice is in defiance of the Principle of equality, international human rights law. Till new law comes into force, Muslim Husbands Should be injuncted from  pronouncing talaq e biddat i.e Pronouncements of word Talaq three times at the Same time. majority Judges held that Such Practice is unconstitutional, the court majority opinion was that Muslim Personal law ( Shariat) Application Act 1937 so far seek to recognise and enforce triple Talaq is within the meaning of the expression ‘law in force’ in A-13 . After going through Hanafi Jurisprudence, the court noticed that very Jurisprudence castigates Triple Talaq as being Sinful. in triple Talaq no attempt to reconcile between wife and husband to save marital tie and therefore this is arbitrary action and unilateral action of Muslim husband capriciously (Sudden behaviour / fickle) and whimsically (unusual and not serious)

In S Azeez Basha v Union of India, (1967) (SC) the words established and maintained were read together, so Muslim minority did not establish Aligarh Muslim University, it was established by a statute of the Parliament, known as Aligarh Muslim university Act 1920 and therefore AMU does not qualify for minority Status as it was not established by the Muslim community and therefore the minority is not justified in demanding to maintain it. As per A-30 All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

It is the fundamental right of the management to manage affairs of the religious institution with regards to matters of religion but the right to administration by the religious denomination of such property shall be strictly in accordance with law. The State cannot completely takeover the management of any denomination, it can only regulate it with appropriate laws but it is the denomination who has to dispense the management of the property according to laws made by the state.

Article 27 provides for non-payment of taxes, the proceeds of which shall be specifically used for promotion or maintenance of any religion or religious denomination.

This article highlights the secular foundation of the Constitution, it would be improper to spend public funds for the furtherance and promotion of beliefs of a particular religion. But there is a distinction between taxes and fees, a tax collected is spent by the State for the general administration and there is no special service extended to the payer, it is not the case with fees, fees are imposed for any special service done in return of the payment and so, there is an element of quid pro quo, which is absent in taxes. For fees to differ from taxes “there must be co-relation between the levy imposed and the expenses incurred by the State for the purpose of rendering such services”, the collections of the fees have to be kept separate and not to be mixed with the general revenue.

A – 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. Exception to A-28(1) 

(3) No person attending any educational institution recognised 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. taking parts is optional.

State funded Educational institution Can’t distribute religious instruction :Article 28(1) denotes that those educational institutions which are wholly run out of State funds cannot distribute any religious instruction , but educational institutions which are established under any endowment or trust and is just administered by the State and require religious instructions to be imparted can do so,

No compulsion to take Part in religions instruction : 28 (3) states that in educational institutions recognised or receiving funds from the State, no person is required to take part in any religious instructions in such institutions or is required to attend any worship in the institution or any premises attached to it unless he voluntarily chooses to so or in case of a minor, consent of the guardian is available.

In Re Aruna Roy, the Supreme Court upheld the Constitutional validity of the National Curriculum Framework for School Education, 2000 which endeavored to inculcate values for the development of students from all religions and also included a comparative study of the teachings and philosophy of various religions. The Court observed that moral values are essential for social order and secularism and enriching students with knowledge of various religions would strengthen their value system in a society that is degrading for power, post and property. Therefore, the framework does not violate Article 28, it does not restrict the learning of diverse cultures and philosophies.

1. A.V. college Jalandhar Vs. state of punjab (1971) (SC)  Provision for academic Study of the life and teachings or philosophy and Culture of any great saint of india ( Guru Nanak in the present case ) in relation to or their impact on the indian and world Civilization could not be taken as providing for religious instruction relating to Particular religion. Thus Gurunanak university at Amritsar with a view to make provision for the study and research on the life and teaching of Gurunanak, did not imply that religious instructions would be imparted therein. 

BIJOE Emmanuel Vs state of Kerala (1986)(SC) 3 SCC 615 National Anthem case

children of christian community expelled from school for refusing to Sing the National Anthem.

Hon’ble Kerala HC has that it was their fundamental duty to sing the national Anthem, their conduct not showing unqualified respect to the national anthem would endanger the security of the nation and that will develop a tendency among Citizens to ignore the mandates of constitution. HC upheld the action of school and observed that if religious Practice runs counter to Public order, Morality, health or Policy of Govt. to uphold the Sovereignty, integrity and unity of nation then Said religious practice must  give way for the benefits of people and the nation as a whole.

SC on appeal however reversed the HC decision and held that there is no legal obligation for citizens to sing the national Anthem. freedom to speech and expression under A-19 (1) (a) also include freedom of Silence.

Court held that they stand up while anthem was being Sung, children have shown Proper respect to national anthem and had thus not been violated the fundamental duty under A-51A where duty is to abide by constitution, respect its ideals and institutions, the national flag and anthem by Standing up when anthem being sung. They have not committed offences under the Prevention of Insults to National Honour Act 1971 because they did not cause any disturbance to the assembly in singing the anthem.

supreme court relied heavily on the decision of Australian and American Supreme court in minersville School V.  Gobities and West virginia Board of Education Vs. Barnette. 

SC judgment was Criticized by various Jurists because of taking care about individual rights more than national interest. Religion Should not be given preference over the national interests. As observed in Donald Vs Board of Education, Hamilton, “a command to join flag salute or singing of national Anthem would be a Command not to Join in any enforced religious exercise but to Pay respect to a nation and Country which stands for religious freedom.”

Held : The apex court decided in favour of those students against school anthontins on the ground of violating A-19 (1)(a) freedom of speech expression and A-25. 

1. Conclusion

India has been inherently secular and still tries to follow the footsteps of its ancient past to maintain cultural and religious freedom and the western principle of secularism is of no actual relevance to India, but the presence of the word “Secular” is a great ideal to be included, it underlines the commitment of Indians to diversity. The criticism of the Essential Practice test may have some substance but given the vast diversity in India in terms of religion, it is necessary for the courts to adjudicate matters of controversy as they may turn into greater disasters if just left to the people to decide. However, this test should be applied only when there is grave apprehension of violation of the restrictions prescribed and not deal with minute dictations of relevance of practices of particular religions. The courts have upheld vehemently the autonomy of the religious institutions in their establishment and management and even the state has not dived too much into micromanaging the religious practices but may have some interest in the commercial side of it for varied reasons. The boundaries established by the State, Judiciary and the people at large and the sense of camaraderie makes India, a unique and successful example of “unity in diversity” and nourish democracy in difficult circumstances too.