The Fundamental Right guaranteed by Art. 25 give the assurance of religious freedom, it provides:
“25(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law-
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.”
Article 25 is an article of faith in the Constitution, incorporated in recognition of the principle that the real test of a true democracy is the ability of even an insignificant minority to find its identity under the country’s Constitution. This has to be borne in mind in interpreting Art. 25[1].
Restriction
However, we also see that the right to freedom of conscience and freely to profess, practise and propagate religion guaranteed by Art. 25 is subject to
(1) public order, morality and health;
(2) other provisions of Part III of the Constitution;
(3) any law
- regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; or
- providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Analysis
Thus while on the one hand, Art. 25(1) itself expressly subjects the right guaranteed by it to public order, morality and health and to the other provisions of Part III, on the other hand, the State is also given the liberty to make a law to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practise and to provide for social welfare and reform, even if such regulation, restriction or provision affects the right guaranteed by Art. 25(1).
Therefore, whenever the Fundamental Right to freedom of conscience and to profess, practise and propagate religion is invoked, the act complained of as offending the Fundamental Right must be examined to discover
- whether such act is to protect public order, morality and health,
- whether it is to give effect to the other provisions of Part III of the Constitution or
- whether it is authorised by a law made to regulate or restrict any economic, financial, political or secular activity which may be associated with religious practice or to provide for social welfare and reform.
The duty of the court to protect the religious rights
We may refer here to the observations of Latham, CJ. in Adelaide Company of Jehovah’s Witnesses v. The Commonwealth[2], a decision of the Australian High Court quoted by Mukherje, J. in the Shrirur Mutt case[3].
Latham, CJ. had said:
“The Constitution protects religion within a community organized under a Constitution, so that the continuance of such protection necessarily assumes the continuance of the community so organized. This view makes it possible to reconcile religious freedom with ordered government. It does not mean that the mere fact that the Commonwealth Parliament passes a law in the belief that it will promote the peace, order and good government of Australia precludes any consideration by a court of the question whether or not such a law infringes religious freedom.
The final determination of that question by Parliament would remove all reality from the Constitutional guarantee. That guarantee is intended to limit the sphere of action of the legislature. The interpretation and application of the guarantee cannot, under our Constitution, be left to Parliament, If the – guarantee is to have any real significance it must be left to the courts of justice to determine its meaning and to give effect to it by declaring the invalidity of laws which infringes it and by declining to enforce them.
The courts will therefore have the responsibility of determining whether a particular law can fairly be regarded, as a law to protect the existence of the community, or whether, on the other hand, it is a law “for prohibiting the free exercise of any religion.” The word “for” shows that the purpose of the legislation in question may properly be taken into account in determining whether or not it is a law of the prohibited character.”
[1] Bijoe Emmanuel vs State of Kerala; 1987 AIR 748, 1986 SCR (3) 518
[2] 67 CLR 116
[3] [1954] SCR 1005