Articles 25 and 26

Explanation I adds: "The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion." Explanation II extends the reference to Hindus in clause (2)(b) to Sikhs, Jainas and Buddhists and their institutions.

Broken down.

1. Freedom of conscience is the inner freedom to hold a belief, or none, and nothing in clause (2) touches it.
2. To profess is to declare a belief openly, to practise is to perform the acts it requires, to propagate is to transmit it to others. Shirur Mutt is explicit that "it is the propagation of belief that is protected, no matter whether the propagation takes place in a church or monastery, or in a temple or parlour meeting". The holders are "all persons", not citizens, and "equally entitled", which carries the secular principle into the article itself.
3. Clause (2)(a) saves State regulation of the secular side, and Shirur Mutt confines it: what it contemplates "is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution", but "regulation of activities which are economic, commercial or political in their character though they are associated with religious practices".
4. Clause (2)(b) is the reform power, and the constitutional basis of temple entry legislation.

Article 26 in its own words

Article 26, headed Freedom to manage religious affairs, reads: "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."

Broken down.

1. The holder must be a denomination, or a section of one. Shirur Mutt takes the Oxford Dictionary meaning, "a collection of individuals classed together under the same name: a religious sect or body having a common faith and Organisation and designated by a distinctive name", and holds that the followers of Madhwacharya, and the Mutt among them, qualify.
2. Clause (b) and clause (d) are not equal, which is the most examinable point in the topic. The right to manage affairs in matters of religion "is a fundamental right which no legislature can take away"; the right to administer property is exercisable only "in accordance with law", so the legislature may regulate it.
3. Regulation is not confiscation. Ratilal draws the limit: "A law, which takes away the right of administration altogether from the religious denomination and vests it in any other or secular authority, would amount to violation of the right which is guaranteed by article 26(d)."
4. The line runs between matters of religion and administration of property, the subject of [Essential Religious Practices].

The structural difference

Set the opening words side by side.

The words in bold are the point. Article 25 is expressly subject to the other provisions of Part III, so where it collides with another fundamental right the other right prevails: a religious practice cannot be asserted to defeat article 17 on untouchability, or article 15(2) on access to places of public resort, or the equality guarantee. Article 26 carries no such subordination. That is the difference a strong answer draws, and the one weak answers miss by treating the two articles as a pair with one set of restrictions.

What "religion" means

Facts. The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 AIR 282, 1954 SCR 1005, decided 16 April 1954 by a Bench of seven. The Shirur Mutt is one of the eight Maths at Udipi founded by Madhwacharya. Its head, the Mathadhipati, obtained a writ of prohibition from the Madras High Court against proceedings to settle a scheme for the Math, and the Madras Hindu Religious and Charitable Endowments Act, 1951 was then challenged as a whole. That Act let the Commissioner vest an institution's administration in an executive officer, controlled the Mathadhipati's spending, and levied an annual contribution of up to five per cent of income.

Held. Sections 21, 30(2), 31, 55, 56 and 63 to 69 were ultra vires articles 19(1)(f), 25 and 26, and section 76(1) was void because the annual contribution was a tax and not a fee, and so beyond the State legislature's competence. On the guarantees themselves the Court laid down what is still the starting point. "Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic", Buddhism and Jainism being the examples given. A religion "may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress". And, decisively, "what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself".

Why it matters. Three things from this case are cited constantly. It refuses to define religion by belief in God. It puts the test of what is essential inside the religion rather than in the judge's view of it. And it separates article 26(b) from article 26(d), the doctrinal engine of every endowment case since. The Court also recorded that articles 25 and 26 are based for the most part on article 44(2) of the Constitution of Eire.

Where the State may regulate

Facts. Ratilal Panachand Gandhi v. The State of Bombay, 1954 AIR 388, 1954 SCR 1035, decided 18 March 1954 by a Bench of five. Two appeals were heard together: the manager of a Jain temple in Panchmahals, and the trustees of the Parsi Punchayet funds in Bombay. Both attacked the Bombay Public Trusts Act, 1950, which required registration of religious trusts, allowed the Charity Commissioner to be appointed a trustee, allowed trust funds to be applied to purposes the Commissioner or the court thought expedient, and levied a contribution under section 58.

Held. Section 44, so far as it allowed the Charity Commissioner to be appointed a trustee of a religious institution without reservation, was void, and so were clauses (3) to (6) of section 47 to the same extent. Section 55(3), and the corresponding words in section 56(1), which allowed trust property to be diverted to purposes thought expedient although the founder's objects could still be carried out, were void as "an unwarrantable encroachment on the freedom of religious institutions in regard to the management of their religious affairs". The contribution under section 58 was a fee and not a tax, so it was within the State's competence. On the reach of the guarantee: "Religious practices or performances of acts, in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines", and "No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate."

Why it matters. Ratilal supplies the practical limit that Shirur Mutt states in principle. A State may register religious trusts, audit them, levy a fee for the service and prevent waste. It may not substitute its own officer for the denomination as manager, nor decide that the denomination's money would be better spent elsewhere. One oddity is worth noticing rather than glossing over: this report is dated a month before Shirur Mutt, yet applies the reasoning in that appeal as already delivered, and neither report explains the sequence.

A worked example

A State passes an Act for the better administration of religious endowments. Section 3 requires every temple to register and file audited accounts. Section 8 lets the Commissioner appoint an executive officer to manage any temple above an income threshold, displacing the trustees. Section 12 lets him divert surplus income to a general fund promoting one faith. Section 15 forbids a particular annual ceremony as wasteful. A denomination challenges all four.

Step one, section 3. Valid. Registration and audit are administration of property, and article 26(d) grants the right "to administer such property in accordance with law". On Ratilal this supervision is exactly what the State may do.

Step two, section 8. Void. Displacing the denomination's own managers by a State officer takes the right of administration away altogether, which Ratilal holds violates article 26(d); Shirur Mutt struck down the equivalent Madras provisions.

Step three, section 12. Void twice over. It diverts the founder's endowment to purposes the Commissioner thinks better, which Ratilal condemned in section 55(3); and so far as the fund is fed by taxes it engages article 27, in [Religious Taxation and Religious Instruction].

Step four, section 15. The State must show the ceremony is not a matter of religion at all, or that it offends public order, morality or health. On Shirur Mutt it cannot succeed merely by showing the ceremony costs money or employs priests, and on Ratilal no outside authority may pronounce it inessential. Regulating the scale of the spending is different, and is permitted.

Step five, if the challenger were a single worshipper. Article 25, not article 26, with the extra hurdle that article 25 is subject to the other provisions of Part III.

What it does NOT mean

It does not mean article 26 is absolute. It is subject to public order, morality and health, and clause (d) admits regulation by law. What it escapes is the rest of Part III.

It does not mean the State may never touch a religious practice. Article 25(2)(b) is a standing power to legislate for social welfare and reform, and is how temple entry was achieved.

It does not mean a court asks whether a practice is sensible. Shirur Mutt sends the enquiry into the doctrines of the religion, and Ratilal forbids an outside authority from ruling a practice inessential. The drift away from both is the subject of [Essential Religious Practices].

Quick revision

• Article 25(1): all persons; freedom of conscience and the right to profess, practise and propagate; subject to public order, morality, health and the other provisions of Part III.
• Article 25(2): saves State power over secular activity associated with religious practice, and for social welfare and reform including temple entry. Explanation I covers kirpans.
• Article 26: a denomination or section thereof; four rights in clauses (a) to (d); subject to public order, morality and health only.
• The structural difference: article 25 yields to the other fundamental rights, article 26 does not.
• Shirur Mutt (1954, seven judges): religion is not necessarily theistic; it covers rituals, observances, even food and dress; the essential part comes from the doctrines of the religion itself; article 26(b) cannot be taken away, article 26(d) may be regulated.
• Ratilal (1954, five judges): a law vesting administration in a secular authority instead of the denomination violates article 26(d); no outside authority may say a practice is not essential; a contribution for services rendered is a fee, not a tax.

Test yourself

1. Quote the opening words of articles 25 and 26, state the difference in what each is subject to, and say what follows.

2. What is a religious denomination, and what did the Math have to show?

3. Distinguish article 26(b) from article 26(d), with an example of a law valid under one and void under the other.

4. How far does article 25(2)(a) let the State regulate a religious practice, on Shirur Mutt?

5. A statute lets a Commissioner spend temple funds on a hospital although the founder's objects can still be met. Is it valid? Give the authority.