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We Have The Freedom To Practice Our Religion, But It Is Not Absolute. Here’s How

Independence Of Practising Religion

The degree of independence to practice a religion cannot be scaled as such, but what our Constitution does provide is that we can practice any religion in any way or manner we want, till the time it does not disturb the social order either morally or politically, and does not hamper the smooth running of the society. This means that one does not commit any act of social misconduct that may lead to any threat to the ongoing peace, any immoral act or any other activity banned by the State. Practices like Sati, child marriages, dowry and various sacrificial offerings have been banned owing to the fact that it has been classed as immoral social practices.

Articles In The Constitution

  • Article 25: Freedom of conscience and free profession, practice and propagation of religion
  • Article 26: Freedom to manage religious affairs
  • Article 27: Freedom as to payment of taxes for promotion of any particular religion
  • Article 28: Freedom as to attendance at religious instruction or religious worship in certain education institutions

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

tree temple religion

What Are The Rights Given Under Article 25?

The said freedom to practice any religion of a person is enshrined under Part III of the Constitution in Article 25, which governs all persons residing in the country irrespective of their status of citizenship. Hence, no one can question the religious inclination of any person irrespective of whether he is a foreign national or a person residing in the territory of India.

Constitutional Safety

Religion has been dealt with very carefully by our Constitution-makers in order to avoid any clash between the State and its subjects. Hence, under Part III, which talks about the Fundamental Rights of a citizen, there are several provisions that provide for the safe and healthy accommodation of religious matters into society.

Absolute Right Or Not?

Article 25 gives to all persons the right to freely profess, practice and propagate religion. This right, however, is not absolute. The opening words of Article 25 (1) make this right subject to public order, morality and health. The same restriction also applies to the other provisions of Part III of the Constitution. This would mean that the right given to a person under 25 (1) can be curtailed or regulated if the exercise of that right violates other provisions of Part III of the Constitution or if the exercise is not in consonance with public order, morality and health, and cannot be violated by any person in exercise of his freedom of conscience or his freedom to profess his religion.

For example, a person cannot profess their religion in such a manner as to denigrate another religion or bring about dissatisfaction amongst people. One’s freedom to profess any religion is a fundamental right, but in cases where a particular community is given the minority status, the shield of freedom of religion cannot be used for the purpose of claiming minority status so as to avail the benefits of Articles 29 and 30 of the Constitution of India. The same principle was upheld in the case of State Of Rajasthan And Ors. v. Vijay Shanti Educational Trust.

What Are The Implications Of Article 25 And 26 Not Being Absolute?

  • The use of loudspeakers is not an integral part of religions, so the government can restrict the use of loudspeakers for Ajan and Bhajan Kirtans.
  • Followers of no religions have the right to stop the processions of other religions on the ground that it is a nuisance.
  • The State may abolish “cow slaughter” as the sacrifice of the cow on Bakrid is not an essential part of the Islamic religion.
  • Possessing Kirpanis an essential part of professing Sikhism and is a protected right of Sikhs.

Muslim Holi

Restrictions

Each time the State plans to introduce restrictions to curb religious dealings, it gets a wide array of reactions from society. A careful reading of Article 25(2)(a) indicates that it does not prevent the State from making any law in relation to the religious practice as such. The limited jurisdiction granted by Article 25(2) relates to the making of a law in relation to economic, financial, political or other secular activities associated with the religious practice. This means that the State can regulate affairs related to religion indirectly.

Meaning of Public Order, Morality And Health

This means that Article 25 and 26 are not absolute. No person can practice their religion in a away that affects public order, morality and health. For example, no one has the right to conduct human sacrifice. No one can perform worship on a busy highway or other public place that might disturb the community.

Is Our Right To Perform Rituals Protected?

Yes, it is protected. But the State, by law, may regulate any economic, financial, political or other activity that may not be a direct part of one’s religion. For example, the management of temples can be controlled by the State.

Does The Constitution Allow The Use Of Loudspeakers In Temples, Mosques etc.?

Using loudspeakers for causing disturbance is not guaranteed by the Constitution. The protagonists of this thought took the shelter of Article 19(1), the freedom of speech and right to expression. However, nobody can claim a fundamental right to create noise by amplifying the sound of their speech with the help of loudspeakers.

In this context, cracking of fireworks on Diwali and using loudspeakers for Ajan in the morning have also come under the Supreme Court’s scrutiny. The Court restricted the time of bursting firecrackers, as it does not violate the religious rights of any person as enshrined under Article 25 of the Constitution.

The festival of Diwali is mainly associated with the pooja performed on the auspicious day, and not with firecrackers. In no religious textbook is it written that Diwali has to be celebrated by bursting crackers. Diwali is considered a festival of lights, not of noises. In this context, the Government of India framed and published the Noise Pollution Control and Regulation Rules, 1999. This legislation was amended in 2002 and empowered State Governments to permit the use of loudspeaker or public address system during night hours (between 10 pm and 12 midnight) or during cultural or religious occasions for a limited period, not exceeding 15 days.

The Supreme Court in Church of God in India v. K.K.R. Majestic Colony Welfare Assn. (2000) held that the Court may issue directions in respect of controlling noise pollution even if such noise was a direct result of and was connected with religious activities. The mandate included the following lines:

“Undisputedly, no religion prescribes that prayers should be performed by disturbing the peace of others nor does it preach that they should be through voice amplifiers or beating of drums. In our view, in a civilized society in the name of religion, activities which disturb old or infirm persons, students or children having their sleep in the early hours or during daytime or other persons carrying on other activities cannot be permitted.”

What Legal Action Can Be Taken When Someone Restricts You From Practising Your Religion? How Can We Report And Which Court Shall Be Approached?

If your fundamental right to practice your religion has been restricted, you can approach the High Court under Article 226 of the Constitution. You also have the right to approach the Supreme Court under Article 32, but the Supreme Court has advised that you approach the High Court of your State before approaching the Supreme Court.

Apart from Constitutional safeguards, the Indian Penal Code has also provided safeguards that have been stated under Chapter 15 from Sections 295 to 298, classifying the following acts as offence:

  • Damaging or defiling of a place of worship or a sacred object with intent to insult the religion of a class or a person.
  • For disturbing any religious worship or ceremony.
  • For trespassing into any place of sepulture or place where funeral ceremonies are proceeding.
  • For utterances in the presence of another person with the intention of wounding the religious feelings of that person.
  • For insulting the religion of any class of citizens by spoken or written publication.

Even though it’s an important statutory provision, it comes with many conditions to prove. Terms such as malicious, deliberate intentions and state of mind become hard to prove in the Court. The last point dealing with the insult of any religion through published or spoken expression also poses a problem. It changes the material expression by using the term outraging instead of wounding of the feelings of any person.

Conclusion

In a present scenario, where India very closely observes the consequences of communal clash, the sense of respect and accommodation for other sects and communities must be inculcated in the masses. The ambit of control exercised by the government over religious activities must be checked. A sense of inclusiveness must be provided to people belonging to a minority community.

The idea of religion is very personal to individuals and should be left personal only rather than bringing this topic on stage and deriving political gains out of it. This right has already been protected by the Constitution of India and it is the duty of the Court to uphold and enforce these rights.

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