OBJECTIVE The agenda for this webinar is to gain an understanding on the balance fundamental rights. This webinar is the fifth of the Constitution Webinar Series. In this webinar, we will elaborately discuss the Freedom of Religion along with the mechanism for enforcing the Fundamental Rights visavis the Right to Constitutional Remedies.

1. Fundamental Rights
(Articles 25-32)
CA Divakar Vijayasarathy

2. Research Credits
Deepika S
CA Jugal Gala
2

3. Legends Used
Art. Article
Hon’ble Honourable
AIR All India Reporter
SC Supreme Court

4. Presentation Schema
4
Overview of Articles
Right to Freedom of
Religion – Article 25 & 26
Exemptions from Taxes –
Article 27 & 28
Cultural and Educational
Rights – Article 29 & 30
Saving of Laws – Article
31A, 31B & 31C
Right to Constitutional
Remedies – Article 32

5. Overview of Provisions
5
Constitutional Provision Art.
Freedom of conscience and free profession, practice and propagation of religion 25
Freedom to manage religious affairs 26
Freedom as to payment of taxes for promotion of any particular religion 27
Freedom as to attendance at religious instruction or religious worship in educational institutions 28
Protection of interests of minorities 29
Right of minorities to establish and administer educational institutions 30
Right to Property [now, omitted] 31
Saving of Laws providing for acquisition of estates, etc 31A
Validation of certain Acts and Regulations 31B
Saving of laws giving effect to certain directive principles 31C
Saving of laws in respect of anti-national activities [now, omitted] 31D
Remedies for enforcement of rights conferred by this Part 32
Constitutional validity of State laws not to be considered in proceedings under article 32[now, omitted] 32A

6. 6
Right to Freedom of
Religion
Articles 25-28

7. 7
“(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 & 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”

8. Meaning of Religion
Religion is certainly a matter of faith with individuals or communities and it is not
necessarily theistic ( belief in the existence of a god).
There are well known religions in India like Buddhism which do not believe in God or in
any intelligent First Cause(the belief that God has created the Universe)
Religion has its basis in a system of beliefs or doctrines which are regarded by those who
profess that religion as conducive to their spiritual well being, but it would not be
correct to say that religion is nothing else but a doctrine or belief.
A Religion may not only lay down a code of ethical rules for its followers to accept, but it
might prescribe rituals and observances, ceremonies and modes of worship which are
regarded as integral parts of religion, and these forms and observations might extend
even to matters of food and dress. 8
The Constitution does not define ”religion” anywhere, but the Hon’ble Supreme Court
gave a comprehensive definition of religion in Commissioner, Hindu Religious
Endowment v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 AIR 282 in the
following words:

9. Freedom of conscience and free profession,
practice and propagation of religion
▪ Articles 25 and 26 embody the principle of religious toleration that has been the
characteristic feature of Indian civilization from the start of history.
▪ They serve to emphasize the secular nature of Indian Democracy which the founding fathers
considered should be the very basis of the Constitution.
▪ While Article 25 of Indian Constitution guarantees rights to an individual, Article 26 guarantees
such rights to an organized body of individuals like the religious denominations or any section
of them.
▪ Both these articles protect matters of religious doctrine or belief as well as acts done in
pursuance of religion rituals, observances, ceremonies and modes of worship.
9
However, the rights under Art.25 and 26 are not absolute and is subject to public order,
morality and health and to the other provisions of Fundamental Rights.

10. Crux of Article 25
▪ Article 25 of Indian Constitution guarantees to every person, and not merely to the
citizens of India, the freedom of conscience and the right to freely profess, practice and
propagate religion.
▪ It empowers the State to make :
a) Laws regulating or restricting any economic, financial, political or secular activity which
may be associated with religious practice and
b) Laws providing for social welfare and social reform even though they might interfere with
religious practices.
10

11. Analysis of Article 26
▪ A religious denomination is a collection of individuals, classed together under the same
name having a common faith and organization and designated by a distinctive name.
▪ Article 26 provides that every Religious Denomination 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
11

12. 12
“No person shall be compelled to pay any taxes, the proceeds of which are specifically
appropriated in payment of expenses for the promotion or maintenance of any particular
religion or religions denomination”
Article 27 & 28
“(1)No religion 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
(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 Cultural and Educational Rights”.

13. Exemption from taxes and Prohibition of
religious preaching in state educational
institutions
▪ Article 27 provides that no person shall be compelled to pay taxes or expenses on
promotion or maintenance of any particular religion. This is in consonance with the
concept of secularism, which means equal respect for all religions.
▪ Article 28 strictly restricts any kind of instructions or religious preaching in any educational
institutions wholly maintained by state funds
13

14. Judicial Precedents
▪ In Shri Jagannath Temple, Puri Management Committee Vs Chintamani Khuntia, AIR 1984
SC 51, the court held that although the state cannot interfere with the freedom of person
to profess, practice and propagate his religion, however, the State can control the secular
matters with all activities, in or connected with the temple.
▪ In another case of Moulana Mufti Syed Md. Murur Rehman Baskati Vs. State of W.B., AIR
1999 Cal 15 (DB), the question of using microphones and loudspeakers arose. When the
authorities put on restriction on the use of microphones and loudspeakers at the time of
Azan(prayers) at various mosques in Calcutta, the Imams of the mosques filed a writ
petition challenging the same as violative of Article 25 of the Constitution. It was held that
prohibition of use of loudspeakers during Azan is not violative of Article 25 of the
Constitution in light of “public order”.
14

15. Indian Young Lawyers’ Association v. State
of Kerala , (2019) 11 SCC 1
Sabarimala Temple Entry for Women
▪ Sabarimala Temple is a temple at Sabarimala in Pathanamthitta District, Kerala.
▪ In the past, women devotees of menstruating age were not permitted to worship here,
this ban being said to be out of respect to the celibate nature of the deity in this temple.
▪ In September 2018, the Hon’ble Supreme Court ruled that all pilgrims regardless of
gender, including women in the menstruating age group, should be allowed entrance to
Sabarimala.
▪ The Constitution bench of the Hon’ble Supreme Court held that the exception to entry of
women because of biological differences violates the Constitution - that the ban violates
the right to equality under Article 14.
▪ It was further held that the practice violated the fundamental right to freedom of religion
of female worshippers guaranteed under Article 25(1).
▪ [A review petition has been filed against this order and the same is pending before the
Hon’ble Supreme Court] 15

16. 16
Cultural and Educational
Rights
(Articles 29 and 30)

17. ▪ The Right of citizens to conserve its language, script or culture [Art.29(1)]
▪ Article 29(1) extends to all the citizens irrespective of the fact whether they are in majority
or minority, the only condition being that such section must have a distinct language,
script or culture of its own.
▪ It is an absolute right for the minorities to preserve its language and culture through
educational institutions and cannot be subject to reasonable restrictions in the interest of
the general public.
▪ A citizen would not be denied admission into state maintained and state-aided institution
on the ground only of religion, race, caste, or language [Art.29(2)]
▪ Article 29(2) is an individual right given to citizen and not to any community. The present
clause gives right to an aggrieved person, who has been denied admission on the ground
of his religion. 17
Right guaranteed under Article 29
“Any section of the citizens residing in the territory of India or any part thereof having a
distinct language, script or culture of its own shall have the right to conserve the same”
”No citizen shall be denied admission into any educational institution maintained by the
State or receiving aid out of State funds on grounds only of religion, race, caste,
language or any of them”

18. ▪ The Right of all the religious or linguistic minorities to establish and administer educational
institutions of their own choice [Art.30(1)]
▪ The Right of an educational institution not to be discriminated in the matter of State aid
on the ground that it is under the management of a minority [Art.30(2)]
18
Essence of the Right guaranteed under
Article 30
“All minorities, whether based on religion or language, shall have the right to establish
and administer educational institutions of their choice.”
“The state shall not, in granting aid to educational institutions, discriminate against
any educational institution on the ground that it is under the management of a
minority, whether based on religion or language.”

19. Judicial Precedents
▪ In St. Xavier’s College v. The State of Gujarat, 1974 AIR 1389, the court held that the right
to administer is the right to ‘conduct’ and ‘manage’ the affairs of the institution and
elaborated on the meaning of the word “administer”.
▪ The word “administer” under article 30(1) of the Constitution means the right to manage
and conduct the affairs of the institution.
▪ It is open to a university to impose reasonable conditions upon a minority institution for
maintaining the requisite educational standard and efficiency like-
a) Qualifications of teachers to be appointed in the institution;
b) Conditions of service - For example, the age of superannuation of teachers;
c) Qualifications for entry of students;
d) Courses of study (subject to special subjects which the institution may seek to teach)
e) Hygiene and physical training of students.
19

20. 20
Illustration Whether it is guaranteed under Article 30?
A minority religious community wants to start an
educational institution to provide higher
secondary education. Whether they can do so?
Yes, it is the right of the community to start any
institution under Article 30.
Illustration

21. 21
SAVING OF LAWS
Article 31A, 31B & 31C

22. Article 31A
22
“( 1 ) Notwithstanding anything contained in Article 13, no law providing for
(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or
modification of any such rights, or
(b) the taking over of the management of any property by the State for a limited period
either in the public interest or in order to secure the proper management of the property, or
(c) the amalgamation of two or more corporations either in the public interest or in order to
secure the proper management of any of the corporations, or
(d) the extinguishment or modification of any rights of managing agents, secretaries and
treasurers, managing directors, directors or managers of corporations, or of any voting rights
of shareholders thereof.”

23. Scope of Article 31A
▪ By the 1st Constitutional Amendment of 1951, the Parliament added Article 31A to the
Indian Constitution.
▪ According to this, the Government can acquire the property of the people and by doing so,
the fundamental rights mentioned in Article 14(Right to Equality) and 19(Freedom of
Speech, Trade, etc.) of Indian Constitution shall not be violated.
▪ In other words, Article 31A of Indian Constitution was immune to Article 14 and 19 of
Indian Constitution that provide for right to equality and the right to freedom respectively.
▪ The rationale for this Amendment is as follows:
1. It helped in the abolition of the Zamindari system as the Government took the land from the
Zamindars and used it for public welfare by either redistribution or agriculture.
2. The government took control of different private companies in order to use them for
enhanced growth. However, this could be done for a fixed amount of time after which, the
control had to be returned.
3. The government took control of the production and distribution of various other resources
like oil.
23

24. Article 31B
24
“Without prejudice to the generality of the provisions contained in Article 31A,
none of the Acts and Regulations specified in the Ninth Schedule nor any of the
provisions thereof shall be deemed to be void, or ever to have become void, on
the ground that such Act, Regulation or provision is inconsistent with, or takes
away or abridges any of the rights conferred by, any provisions of this Part,
and notwithstanding any judgment, decree or order of any court or tribunal to
the contrary, each of the said Acts and Regulations shall, subject to the power
of any competent Legislature to repeal or amend it, continue in force”

25. Scope of Article 31B
▪ This article is the result of the 1st Amendment Act of 1951.
▪ It is in reference with the acts and laws mentioned in the IX Schedule of the Indian
Constitution which contains a list of acts and laws (over 100 acts) which cannot be
challenged in the court of law. In other words, any such acts mentioned in this schedule
are out of the Judicial review.
▪ Article 31B of the Indian Constitution states that the provisions mentioned in Article 31A
are immune from Indian judiciary and cannot be nulled on the basis that they might
violate the fundamental rights mentioned in Arts. 14, 19 of Indian Constitution.
▪ This provision challenged in the Waman Rao v. Union of India, (1981) 2 SCC 362.
▪ It was held that acts and laws mentioned in the IX schedule till date, shall not be
changed or challenged, but any attempt to amend or add more acts to that schedule,
will suffer close inspection and examination by the judiciary system. This was done to
protect the ‘Basic structure’ of the Indian Constitution.
25

26. 26
Few of the Acts contained in IX Schedule
The Bihar Land Reforms Act, 1950
The Madras Land Reforms (Fixation of Ceiling on Land) Act, 1961
The Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973
The Kerala Land Reforms (Amendment) Act, 1969
The Monopolies and Restrictive Trade Practices Act, 1969
The Orissa Land Reforms (Amendment) Act, 1970
The Kerala Agricultural Workers Act, 1974
The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Third Amendment Act, 1972

27. Article 31C
27
“Notwithstanding anything contained in Article 13, no law giving effect to the
policy of the State towards securing all or any of the principles laid down in Part IV
shall be deemed to be void on the ground that it is inconsistent with, or takes
away or abridges any of the rights conferred by Article 14 or Article 19
and
no law containing a declaration that it is for giving effect to such policy shall be
called in question in any court on the ground that it does not give effect to such
policy”

28. Scope of Article 31C
▪ Article 31C of Indian Constitution was included through the 25th amendment act of 1971
through which the government tried to give priority to few of the Directive Principles of
State Policy over the Fundamental Rights. Article 31C of Indian Constitution aims for two
main objectives –
Any law made in pursuance of Article 39B and Article 39C [part of Directive Principles of
State Policy] of Indian Constitution will avoid the scrutiny of courts even if it violates
Article 14 and Article 19 of the Indian Constitution.
Courts will not have the jurisdiction to decide whether the law enabled really gives effect
to the principles mentioned in Article 39C and 39B of Indian Constitution.
▪ Article 39B of Indian Constitution reads –
▪ Article 39C of Indian Constitution reads –
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that the ownership and control of the material resources of the community are so
distributed as best to subserve the common good;
that the operation of the economic system does not result in the concentration of wealth
and means of production to the common detriment;

29. 29
Right to Constitutional
Remedies (Article 32)

30. Article 32
30
“(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement of
any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause (
1 ) and ( 2 ), Parliament may by law empower any other court to exercise within
the local limits of its jurisdiction all or any of the powers exercisable by the
Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution”

31. Analysis of Article 32
▪ Besides making provisions for various types of Fundamental Rights, the Constitution of
India has additionally provided for an effective machinery for the protection and
enforcement of these rights.
▪ Article 32 states that a person can move to Supreme Court if he/she wants to get their
fundamental rights protected.
▪ Even the right to protect the Fundamental Rights of the citizens has itself been made a
Fundamental Right which is named as Right to Constitutional Remedies.
▪ Article 32 guarantees this right to move the Supreme Court by appropriate proceedings for
the enforcement of Fundamental Rights contained in part III of the Constitution.
▪ Thus, the Indian Constitution has made the judiciary the guardian of the Fundamental
Rights of the people.
▪ The Hon’ble Apex court is given the authority to issue directions or orders for the
execution of any of the rights bestowed by the Constitution.
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32. Thank You!
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