The chapter on Fundamental Rights encompasses the rights to
(i) Equality (Articles 14 to 18);
(ii) Freedom (Articles 19 to 24);
(iii) Freedom of religion (Articles 25 to 28);
(iv) Cultural and educational rights (Articles 29 and 30); and
(v) Constitutional remedies (Article 32).
Article 25
Article 25 provides thus:
“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.
Exlanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.”
Clause (1), Article 25
In clause (1), Article 25 protects the equal entitlement of all persons to a freedom of conscience and to freely profess, protect and propagate religion. By conferring this right on all persons, the Constitution emphasises the universal nature of the right. By all persons, the Constitution means exactly what it says: every individual in society without distinction of any kind whatsoever is entitled to the right. By speaking of an equal entitlement, the Constitution places every individual on an even platform. Having guaranteed equality before the law and the equal protection of laws in Article 14, the draftspersons specifically continued the theme of an equal entitlement as an intrinsic element of the freedom of conscience and of the right to profess, practice and propagate religion.
There are three defining features of clause (1) of Article 25:
Firstly, the entitlement of all persons without exception, secondly, the recognition of an equal entitlement; and thirdly, the recognition both of the freedom of conscience and the right freely to profess, practice and propagate religion.
The right under Article 25(1) is evidently an individual right for, it is in the individual that a conscience inheres. Moreover, it is the individual who professes, practices and propagates religion. Freedom of religion in Article 25(1) is a right which the Constitution recognises as dwelling in each individual or natural person. Yet, the right to the freedom of religion is not absolute. For the Constitution has expressly made it subject to public order, morality and health on one hand and to the other provisions of Part III, on the other.
The subjection of the individual right to the freedom of religion to the other provisions of the Part is a nuanced departure from the position occupied by the other rights to freedom recognised in Articles 14, 15, 19 and 21. While guaranteeing equality and the equal protection of laws in Article 14 and its emanation, in Article 15, which prohibits discrimination on grounds of religion, race, caste, sex or place of birth, the Constitution does not condition these basic norms of equality to the other provisions of Part III. Similar is the case with the freedoms guaranteed by Article 19(1) or the right to life under Article 21.
The subjection of the individual right to the freedom of religion under Article 25(1) to the other provisions of Part III was not a matter without substantive content. Evidently, in the constitutional order of priorities, the individual right to the freedom of religion was not intended to prevail over but was subject to the overriding constitutional postulates of equality, liberty and personal freedoms recognised in the other provisions of Part III.
Clause (2) of Article 25
Clause (2) of Article 25 protects laws which existed at the adoption of the Constitution and the power of the state to enact laws in future, dealing with two categories. The first of those categories consists of laws regulating or restricting economic, financial, political or other secular activities which may be associated with religious practices. Thus, in sub-clause (a) of Article 25 (2), the Constitution has segregated matters of religious practice from secular activities, including those of an economic, financial or political nature.
The expression “other secular activity” which follows upon the expression “economic, financial, political” indicates that matters of a secular nature may be regulated or restricted by law. The fact that these secular activities are associated with or, in other words, carried out in conjunction with religious practice, would not put them beyond the pale of legislative regulation.
The second category consists of laws providing for (i) social welfare and reform; or (ii) throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. The expression “social welfare and reform” is not confined to matters only of the Hindu religion. However, in matters of temple entry, the Constitution recognised the disabilities which Hindu religion had imposed over the centuries which restricted the rights of access to dalits and to various groups within Hindu society.
The effect of clause (2) of Article 25 is to protect the ability of the state to enact laws, and to save existing laws on matters governed by sub-clauses (a) and (b). Clause (2) of Article 25 is clarificatory of the regulatory power of the state over matters of public order, morality and health which already stand recognised in clause (1). Clause 1 makes the right conferred subject to public order, morality and health. Clause 2 does not circumscribe the ambit of the ‘subject to public order, morality or health’ stipulation in clause 1. What clause 2 indicates is that the authority of the state to enact laws on the categories is not trammelled by Article 25.
Article 26
Article 26, as its marginal note indicates, deals with the “freedom to manage religious affairs”:
“26. Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.”
Article 26 confers rights on religious denominations and their sections. The Article covers four distinct facets:
(i) establishment and maintenance of institutions for purposes of a religious and charitable nature;
(ii) managing the affairs of the denomination in matters of religion;
(iii) ownership and acquisition of immovable property; and
(iv) administration of the property in accordance with law.
Article 26, as in the case of Article 25(1), is prefaced by a “subject to public order, morality and health” stipulation. Article 26(1) does not embody the additional stipulation found in Article 25(1) viz; “and to the other provisions of this Part.” Public order, morality and health are grounds which the Constitution contemplates as the basis of restricting both the individual right to freedom of religion in Article 25(1) and the right of religious denominations under Article 26. The vexed issue is about the content of morality in Articles 25 and 26. What meaning should be ascribed to the content of the expression ‘morality’ is a matter of constitutional moment.
In the case of the individual right as well as the right of religious denominations, morality has an overarching position similar to public order and health because the rights recognised by both the Articles are subject to those stipulations. Article 25(2) contemplates that the Article will neither affect the operation of existing law or prevent the state from enacting a law for the purposes stipulated in sub-clauses (a) and (b).