Articles 25 to 28, and Freedom of Religion

Article 28: (1) no religious instruction shall be provided in any educational institution wholly maintained out of State funds; (2) that does not apply to an institution administered by the State but established under an endowment or trust requiring religious instruction; and (3) no person attending a State-recognised or State-aided institution shall be required to take part in religious instruction or worship without their consent, or that of their guardian if a minor.

Article 28 draws a three-way line between institutions wholly State-funded, State-recognised or aided, and those under a religious endowment, and the obligation differs in each.

Why these articles come before articles 29 and 30

Because a religious minority's first need is to exist as a religious community, and that is what articles 25 and 26 secure. Articles 29 and 30 then secure its culture, language and educational institutions, which are the second-order protections.

And because the limits are set here. Article 25(1) is subject to the other provisions of Part III, and article 25(2) expressly permits social reform. Those two limits govern the whole religious freedom scheme, and any argument that articles 29 and 30 protect a discriminatory practice runs into them.

The tension this paper has to notice

A religious minority is a disadvantaged group, and within it there are further disadvantaged groups, most obviously women and children. The two claims can conflict, and the constitutional text does not resolve the conflict in one direction.

On one side, article 25(1)'s subordination to the rest of Part III, and article 25(2)(b)'s permission for social welfare and reform.

On the other, article 26(b)'s guarantee of the management of a denomination's own affairs in matters of religion, and article 30(1)'s guarantee of minority educational institutions, which article 15(5) expressly does not override.

A candidate who states the conflict rather than pretending it is settled is giving the better answer, and [Intersectionality, and a Person in Two Groups] takes it further.

Worked example

Her Q4, on minorities, and any question touching religion and a group.

Give article 25(1) with its three points: all persons, subject to the rest of Part III, and propagate.

Give article 25(2)(b) and both Explanations, because the throwing open of institutions and the inclusion of Sikhs, Jains and Buddhists are both frequently asked.

Give article 26 as the collective right, and note the confinement to matters of religion.

Give articles 27 and 28 briefly, and draw article 28's three-way line.

Close on the internal conflict between a minority's claim and the claims of disadvantaged groups within it.

What it does NOT mean

It does not mean religious practice is immune from regulation. Article 25(2)(a) permits regulation of the secular activity associated with it.

It does not mean article 25 protects any practice claimed as religious. It is subject to public order, morality and health and to the rest of Part III.

And it does not mean article 28 forbids all religious instruction. It forbids it in wholly State-funded institutions and makes it voluntary elsewhere.

Quick revision

• 25(1): all persons equally entitled to freedom of conscience and to profess, practise and propagate religion, subject to public order, morality and health and to the other provisions of Part III.
• 25(2)(b) permits laws for social welfare and reform and for the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus, with Explanations covering kirpans and extending Hindu to the Sikh, Jaina and Buddhist religions.
• Article 26: a religious denomination may establish and maintain institutions, manage its own affairs in matters of religion, own and acquire property and administer it in accordance with law. Collective where article 25 is individual, and confined to matters of religion.
• Article 27: no compulsory tax appropriated for the promotion of a particular religion. Article 28: no religious instruction in a wholly State-funded institution; an exception for an endowment or trust; and consent required in a State-recognised or aided institution.
• These come before articles 29 and 30 because a religious minority must first exist as a community; and the limits are set here, in 25(1)'s subordination and 25(2)(b)'s reform clause.
• The internal conflict: a minority is a disadvantaged group, and it contains disadvantaged groups. The text does not resolve it in one direction.

Test yourself

1. What does article 25 guarantee, and what does its second clause permit? Article 25(1) provides that, subject to public order, morality and health and to the other provisions of Part III, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. Three features matter. The right is given to all persons rather than to citizens, so it covers a foreigner and a stateless person. It is expressly subject to the other provisions of Part III, which means it yields to articles 14, 15 and 17, and that subordination is the textual answer to any argument that a discriminatory practice is protected because it is religious. And it includes the right to propagate, which was contested in the Constituent Assembly and distinguishes the Indian text from many comparable guarantees.

Article 25(2) permits two categories of law notwithstanding the guarantee. Clause (a) preserves any law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice, which is the line between the religious and the secular aspects of an institution. Clause (b) preserves any law 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, and this is the provision this paper needs, because it places temple entry and social reform inside the constitutional text so that such a law does not have to be justified against the guarantee at all. Two Explanations extend it: the wearing and carrying of kirpans is deemed included in the profession of the Sikh religion, and the reference to Hindus includes persons professing the Sikh, Jaina or Buddhist religion, with Hindu religious institutions construed accordingly.

2. What do articles 26, 27 and 28 add? Article 26 provides that, subject to public order, morality and health, every religious denomination or any section of it shall have the right to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire movable and immovable property, and to administer such property in accordance with law. Two distinctions are worth holding: article 25 is an individual right and article 26 a collective one belonging to a denomination, and article 26(b) is confined to matters of religion, so the management of the secular aspects of a religious institution remains regulable, which is the same line article 25(2)(a) draws from the other side.

Article 27 provides that 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 religious denomination. Article 28 draws a three-way line: no religious instruction may be provided in an educational institution wholly maintained out of State funds; that prohibition does not apply to an institution administered by the State but established under an endowment or trust requiring religious instruction to be imparted; and no person attending a State-recognised or State-aided institution may be required to take part in religious instruction or worship without their consent, or that of their guardian if they are a minor.

3. Why do these articles come before articles 29 and 30, and what tension do they create? Because a religious minority's first need is to exist as a religious community, and that is what articles 25 and 26 secure; articles 29 and 30 then secure its culture, its language and its educational institutions, which are second-order protections that presuppose the first. And because the limits of the whole religious freedom scheme are set here rather than there: article 25(1) is subject to the other provisions of Part III, and article 25(2)(b) expressly permits laws for social welfare and reform, so any argument that articles 29 or 30 protect a discriminatory practice runs into limits already imposed at the start of the group.

The tension this paper must notice is internal. A religious minority is itself a disadvantaged group, and within it there are further disadvantaged groups, most obviously women and children. The two claims can and do conflict. On one side stand article 25(1)'s subordination to the rest of Part III and article 25(2)(b)'s permission for social welfare and reform, which are the textual footing for reforming a practice from outside. On the other stand article 26(b)'s guarantee that a denomination may manage its own affairs in matters of religion, and article 30(1)'s guarantee of minority educational institutions, which article 15(5) expressly declines to override. The constitutional text does not resolve the conflict in one direction, and a candidate who states the conflict accurately gives a better answer than one who pretends it is settled.