Definition
The fundamental rights under Articles 25-28 guaranteeing to all persons freedom of conscience and the right to freely profess, practise, and propagate religion, subject to public order, morality, and health.
Freedom of religion under Articles 25-28 has four distinct components: (a) Article 25 — right to profess, practise, and propagate religion (subject to public order, morality, health, and State's power to regulate non-religious activities of religious institutions and social reform); (b) Article 26 — right of religious denominations to manage their own affairs in matters of religion, maintain institutions, own and acquire property, and administer such property; (c) Article 27 — freedom from being compelled to pay taxes for promotion of any religion; (d) Article 28 — freedom from being required to take part in religious instruction in State-funded institutions.
Statutory Definition
Article 25(1), Constitution of India: '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.' Article 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.'
Etymology & Origin
From Latin 'libertas religionis' (freedom of religion, freedom to practice rites). The concept of religious freedom as a fundamental right emerged from the Wars of Religion in 16th-17th century Europe, finding expression in the Peace of Westphalia (1648), the French Declaration of the Rights of Man (1789), and the US First Amendment (1791).
Full Legal Analysis
Freedom of Religion: Personal Faith in a Secular State
India’s freedom of religion provisions are complex: they guarantee individual freedom of conscience and religious practice, protect religious denominations from State interference in truly religious matters, and at the same time empower the State to regulate non-religious activities of religious institutions and to reform discriminatory religious practices. The core tension: where does 'religious practice' end and 'social discrimination' begin? This question has generated some of India’s most contested constitutional litigation.
Essential Religious Practice Doctrine
The Supreme Court developed the 'essential religious practice' test to determine which practices are protected under Article 25. Only those practices that are 'essential to religion' — without which the religion itself would be fundamentally altered — are constitutionally protected. Practices that are 'merely associated with religion' but not essential to it may be regulated or prohibited by State law. This doctrine has been criticised as requiring courts to interpret theological questions they may be ill-equipped to decide.
Triple Talaq: Essential Practice?
In Shayara Bano v. Union of India (2017) 9 SCC 1, the Supreme Court (3:2 majority) declared the practice of triple talaq (instant divorce by pronouncing 'talaq' three times) unconstitutional. The majority held it was manifestly arbitrary (Articles 14 and 21), not an 'essential religious practice' under Article 25. This led to the Muslim Women (Protection of Rights on Marriage) Act, 2019 criminalising triple talaq. The case illustrates how the 'essential practice' doctrine allows courts to adjudicate on the content of religious law.
Sabarimala: Women's Entry into Temples
In the Sabarimala case (2018), the Supreme Court (4:1 majority) held that excluding women of menstruating age from the Sabarimala temple was not an 'essential religious practice' and violated Articles 14, 15, and 25. The lone dissent (Justice Indu Malhotra) held that courts should not interfere with religious practices unless they violate constitutional morality. The case generated a major national debate about the role of courts in regulating religious custom.
“Freedom of religion is the freedom to hold faith and practice it — but not the freedom to impose it on others, exclude others from public spaces, or use religion to discriminate. India’s Constitution guarantees the first; the essential practices doctrine limits the latter.”
This Term in Indian Statutes
Constitution of India, 1950
"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."
Freedom to profess, practice, propagate — subject to public order, morality, health, and State regulation
