Religious Taxation and Religious Instruction

Article 27, clause by clause

"any taxes". The word is technical. A tax is a compulsory exaction for public purposes with no service in return; a fee is a charge for a special service. A levy that is a fee is outside article 27 however religious its subject matter.

"specifically appropriated". The proceeds must be earmarked for the religious purpose. Money that goes into general revenue and is then spent on many things, one touching religion, is not caught.

"the promotion or maintenance of any particular religion". The object must be to foster or sustain a faith, and a levy paying for the administration of religious trusts is not one to promote religion. That is what Shirur Mutt decided about section 76(1) of the Madras Act: the contribution was a tax and still outside the latter part of article 27, its object being the proper administration of religious institutions wherever they exist. Shirur Mutt is worked in [Essential Religious Practices].

Tax against fee

Facts. Ratilal Panachand Gandhi v. The State of Bombay, 1954 AIR 388, 1954 SCR 1035, decided 18 March 1954. Trustees of Jain public trusts challenged the Bombay Public Trusts Act 1950: the provisions allowing the Charity Commissioner to be appointed trustee of a religious trust and to divert trust property to purposes he thought expedient, and section 58, which levied a contribution on the income of every public trust.

Held. Section 44 and clauses (3) to (6) of section 47 were unconstitutional so far as they allowed the Charity Commissioner to be appointed trustee of a religious trust; and section 55(3), with the corresponding part of section 56(1), was void, because diverting trust funds to purposes a court or Commissioner thinks expedient, while the founder's objects can still be carried out, is "an unwarrantable encroachment on the freedom of religious institutions in regard to the management of their religious affairs".

Held on section 58. Valid, because the contribution was a fee and not a tax. A tax is "a compulsory exaction of money by a public authority for public purposes, the payment of which is enforced by law", imposed "without reference to any special advantage to be conferred upon the payers", and its collections "are all merged in the general revenue". Fees "are payments primarily in the public interest, but for some special service rendered or some special work done for the benefit of those from whom the payments are demanded. Thus in fees there is always an element of quid pro quo which is absent in a tax." Two elements are essential: the levy must be in consideration of services, and the amount "must be ear-marked to meet the expenses of rendering these services and must not go to the general revenue". Section 58 satisfied both, the money going to the Public Trusts Administration Fund and being applied only to the expenses of administering the Act.

Why it matters. "Quid pro quo" means something given in return, and it is the whole of the distinction. It is the first thing to look for in an article 27 problem: find where the money goes. If it is earmarked for a fund paying for a service to the payers, it is a fee and article 27 says nothing.

Article 28 and its four institutions

The article does not print them as a list, so a good answer builds one from its text.

Notice the logic. The prohibition tracks the closeness of the State's connection with the institution. Total funding buys a total ban; recognition or partial aid buys only a right in the student not to be compelled. Clause (2) saves the case where the State has inherited a foundation whose own trust deed requires religious teaching: it may run it as the founder intended.

And notice what clause (3) protects. Not a right against the syllabus, but a right of the person attending not to be required to take part or to attend worship, and consent removes the objection. Compare [Article 30: To Establish and to Administer], where the right is the institution's.

What "religious instruction" means

Facts. Ms. Aruna Roy v. Union of India, AIR 2002 SC 3176, (2002) 7 SCC 368, decided 12 September 2002. A petition under article 32 challenged the National Curriculum Framework for School Education published by the NCERT: it had been framed without consulting the Central Advisory Board of Education, it was anti-secular, and its provision for value education and the study of religions offended articles 27 and 28.

Held. The petition was dismissed. The Central Advisory Board is not a statutory body and consultation with it was not a condition of validity. On article 28, "the entire emphasis of the Article is against imparting religious instruction or of performing religious worship. There is no prohibition for having study of religious philosophy and culture". Adopting the definition given in DAV College v. State of Punjab, "Religious instruction is that which is imparted for inculcating the tenets, the rituals, the observances, ceremonies and modes of worship of a particular sect or denomination", while academic study of the life, teaching or philosophy of a saint, in relation to its impact on Indian and world civilisations, is not. The Framework nowhere spoke of imparting religious instruction: it sought value based education and awareness that "the essence of every religion is common".

Why it matters. It supplies the definition, and the definition answers nearly every article 28 problem. The test is inculcation, not subject matter: teaching what a religion believes is study, teaching a child to believe it is instruction. DAV College is named without a citation: its own report has not been read, and the definition is given here on Aruna Roy's authority.

Instruction, propagation and conversion

Article 28 restrains the State; article 25 protects the individual's right to "propagate" religion. The two meet where teaching becomes recruitment.

Facts. Rev. Stainislaus v. State of Madhya Pradesh, AIR 1977 SC 908, (1977) 1 SCC 677, decided 17 January 1977. The Madhya Pradesh Dharma Swatantraya Adhiniyam 1968 and the Orissa Freedom of Religion Act 1967 prohibited conversion by force, fraud or allurement and made it punishable. The Madhya Pradesh High Court upheld its Act; the Orissa High Court struck its own down, holding conversion part of the Christian religion and a law on religion a matter for Parliament.

Held. Both Acts were valid. The word "propagate" in article 25 means "to transmit or spread from person to person or from place to place", and the article "does not grant right to convert other person to one's own religion but to transmit or spread one's religion by an exposition of its tenets". The guarantee covers all religions equally, so "What is freedom for one is freedom for the other in equal measure and there can, therefore, be no such thing as a fundamental right to convert any person to one's own religion." Both statutes provided for the maintenance of public order, since forcible conversion would create disorder, and so fell within Entry 1 of List II and not Entry 97 of List I.

Why it matters. It is the leading case on the boundary of article 25 and is overstated in both directions. It does not hold conversion unlawful, and it does not say a person may not change his own religion. It holds that there is no fundamental right to convert another, and that a State may punish conversion procured by force, fraud or allurement as a public order measure.

A worked example

The State of X levies a cess of one rupee on every temple entry ticket, the proceeds going into the Consolidated Fund. It also runs two schools: School A funded entirely by the State, School B a private school receiving a State grant of forty per cent of its costs. Both hold a morning prayer to a named deity, which every pupil must attend.

Step one, tax or fee? On Ratilal, look for quid pro quo and earmarking. There is no service to ticket buyers and the money is merged in the Consolidated Fund. It is a tax.

Step two, does article 27 strike it down? Only if the proceeds are "specifically appropriated" for "the promotion or maintenance of any particular religion". They are not appropriated at all. So article 27 is not offended, however unattractive the levy. Had the statute directed the proceeds to the temples of one denomination, it would be.

Step three, School A. Wholly maintained out of State funds, so article 28(1) applies and the prohibition is absolute. Conducting a prayer to a named deity inculcates a mode of worship, which is religious instruction on the Aruna Roy definition. Consent is irrelevant: clause (1) is a rule about provision, not compulsion.

Step four, School B. It receives aid, so clause (3) applies and clause (1) does not. The prayer may be conducted. What may not be done is to require a pupil to take part without the consent of the pupil, or of a minor's guardian. The compulsion is void, not the prayer.

Step five, the point that carries the mark. The same prayer is unlawful in one school and lawful in the other, and the variable is the source of the money.

What it does NOT mean

Article 27 does not forbid a State to spend money on religious matters. It forbids compelling a person to pay a tax whose proceeds are specifically appropriated to promote a particular religion.

Article 28 does not forbid teaching about religion. It forbids religious instruction, which Aruna Roy defines as teaching that inculcates the tenets, rituals and worship of a sect.

Article 28(3) is not a right to have a prayer stopped. It is a right not to be compelled to attend it.

Quick revision

• Article 27: no person compelled to pay taxes whose proceeds are specifically appropriated for the promotion or maintenance of any particular religion. Three limbs, each narrowing.
• A fee is outside article 27. Ratilal: a tax is a common burden merged in general revenue; a fee has quid pro quo and is earmarked to the cost of the service.
• Shirur Mutt: a levy for administering religious trusts is a tax, but not one for the promotion of a religion, so article 27 is not offended.
• Article 28 distinguishes four institutions: wholly State-funded (instruction forbidden, 28(1)); State-administered but founded under an endowment or trust requiring instruction (28(2), exempt from clause (1)); State-recognised and State-aided (28(3), instruction permitted, attendance only with consent).
• Aruna Roy: religious instruction is "that which is imparted for inculcating the tenets, the rituals, the observances, ceremonies and modes of worship of a particular sect or denomination". Study of religious philosophy is not.
• Stainislaus: "propagate" means to transmit or spread by an exposition of tenets. There is no fundamental right to convert another, and anti-conversion laws are public order laws under Entry 1 of List II.

Test yourself

1. Set out the three limbs of article 27 and say which of them decides most cases.

2. State the test for distinguishing a tax from a fee, and apply it to the levy in Ratilal.

3. Tabulate the four institutions article 28 distinguishes, with the clause and consequence for each.

4. What is "religious instruction", and what falls outside it?

5. What exactly did Stainislaus decide about the word "propagate", and what did it not decide?

6. A State-aided school holds a compulsory daily prayer. What is unlawful?