Articles 25 to 28 Right to Freedom of Religion

India's constitutional secularism does not mean hostility toward religion or a rigid wall separating state and religion in the American sense; it means the state maintains principled equidistance from all religions, neither favouring nor persecuting any, while retaining specific authority to regulate secular dimensions of religious practice. Articles 25 to 28 structure this distinctive Indian model.

Legal Framework

Article 25: Freedom of Conscience and Religious Practice

This provision protects both freedom of conscience (an entirely internal, personal freedom of belief) and the right to freely profess, practise, and propagate religion (external manifestation of that belief), subject to the state's power to restrict this right on grounds of public order, morality, and health.

Article 25(2)'s specific carve-outs are particularly significant: the state retains power to regulate "secular activities associated with religious practice" (such as economic, financial, political, or other secular activities that may be associated with religious practice but are not themselves essentially religious), to legislate for social welfare and reform (even where this touches upon religious practice), and specifically to throw open Hindu religious institutions of a public character to all classes and sections of Hindus (addressing the historical exclusion of certain groups from temple access). Why these specific carve-outs were considered necessary within a religious freedom guarantee: The framers were acutely conscious that certain practices carried out under the banner of "religion" (such as caste-based exclusion from temples, or various social practices with religious justification but genuinely secular or socially harmful character) required continued legislative reform capability; without these express carve-outs, an unduly broad reading of religious freedom might have been used to resist necessary social reform legislation, undermining the equality and dignity principles the Constitution elsewhere protects.

The Essential Religious Practices Test

Since Article 25 protects religious "practice," but the state retains power to regulate "secular" activities associated with religion, courts needed a method for distinguishing genuinely essential, constitutionally protected religious practices from secular or non-essential accretions subject to ordinary state regulation.

Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar (1954): The Supreme Court articulated the "essential religious practices" test, holding that what constitutes an essential part of a religion is primarily to be ascertained with reference to the doctrines of that particular religion itself, and that practices genuinely essential and integral to a religion receive constitutional protection under Article 25, whereas practices that are merely secular, social, or non-essential accretions, even if associated with religious observance, receive lesser protection and remain subject to ordinary state regulation.

Why courts adopted this specific test, rather than deferring entirely to whatever any religious group itself characterises as "religious" and therefore protected: Without some judicially manageable distinction, virtually any practice could potentially claim protection merely by being associated with religious observance in some manner, potentially insulating harmful or purely secular practices from otherwise legitimate state regulation and reform; the essential practices test attempts to draw this line by asking whether the specific practice is genuinely, doctrinally integral to the religion's core tenets, rather than a merely incidental or optional accretion.

Why this test has generated significant, ongoing controversy: Determining what is "essential" to a religion inevitably requires courts, secular institutions, to engage in some degree of theological or doctrinal interpretation, a role many consider uncomfortable or inappropriate for a secular judiciary, and different courts have sometimes reached varying conclusions when applying this test to specific contested practices.

Sabarimala Temple case, Indian Young Lawyers Association v State of Kerala (2018): The Supreme Court, applying (and extensively debating) the essential religious practices framework, held that the exclusion of women of a specific age group from the Sabarimala temple was not an essential religious practice, and that this exclusion violated the constitutional rights of women devotees, this ruling itself becoming the subject of significant subsequent debate and a pending larger bench reconsideration on certain related questions, illustrating the test's continuing contested application in practice.

Article 26: Rights of Religious Denominations

Distinct from Article 25's individual right, Article 26 protects a religious denomination's collective right to manage its own religious affairs, establish and maintain institutions for religious and charitable purposes, and own and administer property, again subject to public order, morality, and health.

Why a separate provision was needed for religious denominations as distinct collective entities, beyond the individual right under Article 25: Religious practice is frequently organised and exercised collectively through denominational institutions (specific religious communities, sects, or organised religious bodies), and protecting only the individual's personal right to practise religion would leave unprotected the institutional and organisational dimension through which much religious practice actually occurs; Article 26 specifically addresses this collective, institutional dimension.

Articles 27 and 28: Specific Financial and Educational Provisions

Article 27 prevents compelling any person to pay a tax specifically earmarked for promoting a particular religion, reflecting the principle that the state should not use its general taxing power to favour or fund any specific religion over others. Article 28 prohibits religious instruction in educational institutions wholly maintained out of state funds, while permitting it in institutions merely recognised or aided by the state (subject to specific consent conditions), reflecting a calibrated approach distinguishing wholly state-funded institutions (where religious neutrality is considered particularly important) from institutions with some independent or denominational character receiving lesser state support.

S R Bommai v Union of India (1994): Though primarily concerned with a different constitutional question (the scope of Presidential power to dissolve state governments), this case importantly reaffirmed secularism as a basic structure feature of the Constitution, reinforcing the foundational significance of the principles Articles 25 to 28 collectively establish.

Illustrations

1. Essential religious practice, protected: A specific ritual central to a religion's core theological doctrine and consistently recognised as integral to that faith's practice would likely be protected under Article 25 as an essential religious practice, subject only to the public order, morality, and health limitations.

2. Secular accretion, subject to regulation: A specific administrative or financial practice associated with managing a religious institution's property, while connected to religious context, is characterised as a secular activity, and the state retains power to regulate this specific administrative or financial dimension under Article 25(2)'s express carve-out, without this regulation infringing the essential religious practice itself.

3. Article 26 applied, denominational institutional autonomy: A specific religious denomination establishes and manages its own religious educational institution, exercising its collective right under Article 26 to establish and maintain institutions for religious purposes, subject still to the overarching public order, morality, and health limitations, and to any applicable secular regulatory requirements distinct from the institution's specifically religious character.

Recall Check

1. Why does India's constitutional secularism differ from a strict separation model, and what does "principled equidistance" mean in this context?
2. Why did courts develop the "essential religious practices" test, and what specific difficulty does this test create for a secular judiciary?
3. Why does Article 26 protect religious denominations as collective entities, distinct from Article 25's individual right?

Key Cases

Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar (1954) Commissioner-HRE-Madras-v-Sri-Lakshmindra-Thirtha-Swamiar-1954 Issue: How to distinguish essential religious practices, protected under Article 25, from secular activities subject to state regulation. Rule: What constitutes an essential religious practice is ascertained primarily with reference to the doctrines of the religion itself; secular or non-essential accretions receive lesser protection. Held: The Supreme Court established this foundational test, subsequently applied and debated across numerous later religious freedom cases.

Indian Young Lawyers Association v. State of Kerala (Sabarimala Temple Case) (2018) Indian-Young-Lawyers-Association-v-State-of-Kerala-2018 Issue: Whether the exclusion of women of a specific age group from a temple constituted an essential religious practice protected under Article 25 and 26. Rule: Applying the essential religious practices test, such exclusion was found not to be essential, and its continuation violated the constitutional rights of the excluded women devotees. Held: The Supreme Court ruled against the exclusion, though this remains subject to significant ongoing debate and further judicial reconsideration on related questions.

Distinctions

Flashcards

Q: What does Article 25(2) specifically permit the state to do, despite the general guarantee of religious freedom? A: Regulate secular activities associated with religious practice, legislate for social welfare and reform, and open Hindu religious institutions to all classes and sections of Hindus.

Q: What test did Commissioner, HRE Madras v Sri Lakshmindra Thirtha Swamiar establish for distinguishing protected religious practices? A: The "essential religious practices" test, ascertained with reference to the specific religion's own doctrines.

Q: What collective right does Article 26 protect, distinct from Article 25's individual right? A: The right of religious denominations to manage their own religious affairs, establish institutions, and own and administer property.

Q: What does Article 27 prevent? A: Compelling any person to pay a tax specifically appropriated for promoting a particular religion.

Q: What does Article 28 prohibit, and where does this prohibition specifically apply? A: Religious instruction in educational institutions wholly maintained out of State funds.

Exam Scenario

A religious institution claims that a specific practice, involving exclusion of a particular group from a core religious ceremony, is an essential part of its religious doctrine, while opponents argue this exclusion is a purely social, non-essential practice that should be subject to state regulation and reform under Article 25(2). Advise on the analytical framework a court would apply to resolve this dispute.

Approach: Apply the essential religious practices test from Commissioner, HRE Madras v Sri Lakshmindra Thirtha Swamiar, directing the court to examine whether this specific exclusionary practice is genuinely integral to the religion's core doctrinal tenets, examined primarily with reference to the religion's own authoritative texts, traditions, and doctrines, rather than simply accepting the institution's own characterisation at face value. Reference the Sabarimala Temple case as an illustrative example of this same analytical approach being applied to a genuinely contested practice, where the Court ultimately found the specific exclusion not to be essential, subjecting it to constitutional scrutiny and ultimately invalidation. Advise that the outcome will turn on this specific, fact-intensive doctrinal inquiry into whether the practice is genuinely essential or a secular/social accretion, a determination inherently requiring the court to engage with the religion's own theological content, the specific difficulty this test is well known to create for a secular judiciary.

See Also

• Articles 29 and 30 Cultural and Educational Rights : the related but distinct protections for cultural and educational rights of minorities, operating alongside the religious freedom framework addressed here.