The Right to Religious Freedom

I. Introduction

Context: The Republic of India, characterized by its profound religious and cultural pluralism, constitutionally guarantees the right to freedom of religion as a cornerstone of its democratic framework.¹ This commitment is deeply embedded within the nation’s identity and legal structure, reflecting a long history of co-existence among diverse faiths.¹ Central to this guarantee is India’s unique interpretation of secularism. Unlike the strict separation model often seen in Western polities, Indian secularism embodies the principle of Sarva Dharma Sama Bhava – equal respect for all religions.⁶ The state is expected to maintain neutrality and not establish any religion as the state religion, while simultaneously ensuring that all religious groups have the space to flourish.¹ This principle was explicitly incorporated into the Preamble through the 42nd Amendment in 1976, declaring India a “Secular” state, although the Supreme Court has affirmed that this secular character was implicit in the Constitution from its inception, particularly within the framework of religious freedom rights.¹
Scope: The primary constitutional safeguards for religious freedom are enshrined in Articles 25, 26, 27, and 28, located in Part III (Fundamental Rights) of the Constitution.¹ These articles collectively delineate the scope of individual and collective religious liberty, the state’s relationship with religious institutions, and the limitations imposed on these freedoms.
Report Objectives: This report undertakes an exhaustive legal analysis of Articles 25 through 28 of the Indian Constitution. It aims to dissect the textual provisions, examine their scope as interpreted by the judiciary, and explore the evolution of critical legal doctrines, such as the Essential Religious Practices (ERP) test. Furthermore, the report will analyze major issues and conflicts arising from the application of these articles, including tensions with other fundamental rights (like equality and dignity), the contentious debate surrounding anti-conversion laws versus the freedom of propagation, the implications of a potential Uniform Civil Code (UCC), and contemporary judicial trends evidenced in recent controversies. Finally, it will synthesize the current legal position and contemplate the future prospects of religious freedom jurisprudence in India.
Methodology: The analysis presented herein relies fundamentally on the text of the Indian Constitution, landmark judgments rendered by the Supreme Court of India and High Courts, authoritative legal commentaries, relevant legislative enactments, and Law Commission reports. The objective is to provide a comprehensive and nuanced understanding grounded in authoritative legal sources.

II. Article 25: Individual Freedom of Conscience and Religion

A. Textual Analysis and Scope:
Article 25(1) forms the bedrock of individual religious freedom in India. It states: “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”.6 This guarantee extends to “all persons,” signifying its availability to both citizens and non-citizens residing within India, although certain aspects like the right to reside might be limited for non-citizens.14 However, the right is explicitly not absolute; it is subject to carve-outs concerning public order, morality, health, and, significantly, other fundamental rights enshrined in Part III of the Constitution.6 The article protects both the internal dimension of belief – “freedom of conscience” – and its external manifestations – the right to “profess, practise and propagate” religion.14 The inclusion of “equally entitled” underscores the principle of non-discrimination among individuals in the enjoyment of this right.22
B. Judicial Interpretation of Key Terms:
The judiciary has played a crucial role in defining the contours of the freedoms guaranteed under Article 25(1).

‘Conscience’: This term signifies more than just religious belief; it represents an absolute inner freedom.²² It is the liberty of thought and belief, allowing an individual to mould their own relationship with the divine or to hold no religious belief at all (atheism).¹⁴ The Supreme Court has recognized it as the freedom to entertain beliefs conducive to one’s spiritual well-being.¹⁹ Recent interpretations suggest ‘conscience’ can be viewed as a standalone right, distinct from religious freedom, protecting an individual’s core moral standards and innermost beliefs, whether theistic or not.²⁹ This right extends to acting upon these beliefs.²⁹ However, the purely internal and individualistic nature of conscience presents challenges in judicial review, particularly regarding proof of such beliefs when they are invoked.²⁹
‘Profess’: This refers to the right to declare or affirm one’s religious beliefs and faith openly and freely.¹³ It encompasses overt acts that signify religious identity, such as teaching religious precepts or wearing religious symbols.¹⁹ Explanation I to Article 25 explicitly clarifies that the wearing and carrying of kirpans is included in the profession of the Sikh religion.⁶
‘Practice’: This denotes the performance of acts, rituals, ceremonies, and observances that are integral components of a religion.¹³ It extends beyond mere doctrine to the practical application of faith in daily life, which may include specific modes of worship, dietary rules, and even dress codes.¹³ The courts have recognized that “religion” under the Constitution is not confined to belief but includes these outward acts done in pursuance of religion.²¹
‘Propagate’: This term grants the right to disseminate, spread, transmit, or communicate one’s religious beliefs to others, including the exposition of its tenets.¹⁴ However, the Supreme Court, in the landmark case of Rev Stanislaus vs State of Madhya Pradesh (1977), decisively ruled that the right to propagate does not include a fundamental right to convert another person to one’s own religion.¹⁹ The Court held that propagation pertains to the exposition of tenets, while conversion, particularly if induced by force, fraud, or allurement, would impinge upon the ‘freedom of conscience’ guaranteed to all persons, including the potential convert.³² This interpretation provides the constitutional basis for state anti-conversion laws.³³
C. Restrictions on Freedom under Article 25(1):
The rights under Article 25(1) are subject to significant limitations:

Public Order, Morality, Health: These are explicit grounds upon which the state can restrict religious freedom.⁶ For instance, religious processions might be regulated to maintain public order ¹⁹; practices deemed socially abhorrent like sati or the devadasi system can be prohibited on grounds of morality ¹⁹; and rituals involving self-harm or public health risks can be restricted.¹⁹
Other Provisions of this Part (Fundamental Rights): Crucially, Article 25(1) is also “subject to the other provisions of this Part”.¹³ This clause establishes a direct link and potential hierarchy between religious freedom and other fundamental rights, such as the right to equality (Articles 14 and 15), the right against untouchability (Article 17), and the right to life and dignity (Article 21). This subjection forms the constitutional basis for judicial intervention in religious practices that conflict with these fundamental rights, most prominently seen in cases concerning gender justice, like the Sabarimala temple entry case ³⁶ and the Shayara Bano triple talaq case.³⁸
D. State’s Regulatory Powers under Article 25(2):
Clause (2) of Article 25 carves out specific areas where the state retains the power to legislate, notwithstanding the guarantee of religious freedom:

Article 25(2)(a): Regulation of Secular Activities: This clause empowers the state to regulate or restrict any “economic, financial, political or other secular activity which may be associated with religious practice”.⁶ The Shirur Mutt judgment clarified that this allows regulation of the administration of property of religious institutions, which is considered a secular aspect, but does not permit interference with the core religious practices themselves.⁴² This distinction is pivotal but often contested in practice.
Article 25(2)(b): Social Welfare and Reform: This clause permits the state to ena classes and sections of Hindus”.⁶ Explanation II clarifies that “Hindus” here includes persons professing the Sikh, Jaina, or Buddhist religions, and “Hindu religious institutions” are construed accordingly.⁶ This provision has been instrumental in challenging caste-based discrimination in temple entry and other social reform measures within Hinduism.⁴⁵
E. The Essential Religious Practices (ERP) Doctrine:
Perhaps the most significant and debated judicial innovation in relation to Article 25 (and Article 26) is the Essential Religious Practices (ERP) doctrine.

Origin and Rationale: The doctrine’s genesis is traced to the 1954 Shirur Mutt case ¹⁶, potentially influenced by Dr. B.R. Ambedkar’s views in the Constituent Assembly distinguishing essentially religious matters from secular ones connected to religion.⁵⁰ The rationale was to create a framework for courts to determine which aspects of religion warrant constitutional protection under Articles 25 and 26. The idea was to protect the ‘core’ or ‘integral’ parts of a religion while allowing the state to regulate peripheral, secular, or superstitious practices that might be claimed as religious.¹⁶
Evolution and Application: The application of the ERP test has evolved considerably through subsequent jurisprudence:

Shirur Mutt (1954) initially suggested that essentiality should primarily be ascertained by reference to the doctrines of the religion itself.⁴³
Durgah Committee, Ajmer v. Syed Hussain Ali (1961) refined this, stating that protection is confined to practices regarded by the religion as essential and integral, explicitly excluding superstitious beliefs and unessential accretions, thereby asserting a greater judicial role in this determination.¹⁶
Sardar Syedna Taher Saifuddin Saheb v. State of Bombay (1962) upheld the practice of excommunication within the Dawoodi Bohra community as essential, emphasizing reliance on religious texts and tenets, and cautioning the legislature against reforming a religion out of existence.⁴⁰
Acharya Jagadisharananda Avadhuta (2004) introduced the “fundamental alteration” test: a practice is essential only if its absence would fundamentally alter the nature of the religion.¹⁸ This test was used to declare the Tandava dance non-essential for the Ananda Marga faith.
Shayara Bano v. Union of India (2017) marked a significant turn. The majority declared instant Triple Talaq unconstitutional, finding it non-essential to Islam not only based on textual analysis (arguing it was against Quranic tenets) but also by stating that practices merely permitted or not prohibited by a religion cannot be deemed essential.¹⁶ This judgment strongly linked the ERP test to fundamental rights, particularly gender equality.
Indian Young Lawyers Association v. State of Kerala (Sabarimala) (2018) saw the majority (4:1) deem the exclusion of women aged 10-50 from the temple non-essential, emphasizing constitutional morality and equality rights.⁸ The dissent, however, found the practice essential based on the specific character of the deity and the denominational rights under Article 26.³⁶
The Karnataka Hijab Case (2022) further complicated the ERP discourse. The Karnataka High Court found wearing the hijab non-essential to Islam.¹⁸ The Supreme Court delivered a split verdict.¹⁸ Justice Dhulia questioned the very applicability and relevance of the ERP test when an individual asserts their Article 25(1) right against state action, suggesting a focus on the sincerity of belief and whether the practice harms others.⁶⁵ Justice Gupta, conversely, upheld the ban emphasizing uniformity and secularism in educational institutions.¹⁸ The matter has been referred to a larger bench.⁷³
Critique and Challenges: The ERP doctrine is heavily criticized.¹⁶ Critics argue it empowers secular courts to act as theological arbiters, deciding the core tenets of faiths – a role they may be ill-equipped for and which potentially violates the separation of state and religion.¹⁶ The application has been inconsistent, leading to unpredictable outcomes.⁵⁴ It is accused of undermining the autonomy of religious groups to define their own practices ⁵⁰, potentially homogenizing diverse internal traditions ¹⁶, and freezing evolving practices in time.⁵⁴ Furthermore, it can allow courts to avoid the difficult task of directly balancing competing fundamental rights by simply declaring a practice non-essential, thus removing it from constitutional protection at the threshold.²⁸ The doctrine’s future hangs in the balance, pending review by a nine-judge Supreme Court bench constituted following the Sabarimala review petitions.²⁸

The trajectory of the ERP test reveals a significant evolution in judicial thinking. Initially conceived in Shirur Mutt as a way to identify the core of religion, with deference to the religion’s own doctrines ⁴², the test has increasingly become a tool for the judiciary to scrutinize and validate religious practices against constitutional norms. Cases like Durgah Committee introduced the power to exclude superstitious or secular practices.¹⁶ Later judgments, particularly Shayara Bano ²³ and the Sabarimala majority ³⁶, demonstrate a willingness to use constitutional principles like equality and non-arbitrariness as lenses through which to assess essentiality, moving beyond purely textual or doctrinal analysis of the religion itself. This shift signifies the judiciary assuming a more active role as an arbiter of the constitutional validity of religious practices, not merely an interpreter of religious doctrine. This development, while potentially furthering social reform, raises profound questions about judicial competence in theological matters and the appropriate balance between religious autonomy and constitutional oversight.¹⁶

The interpretation of the right to ‘propagate’ religion under Article 25 ⁶ has been definitively shaped by the Rev Stanislaus judgment.³² By distinguishing propagation (exposition of tenets) from a right to convert, the Court provided the constitutional underpinning for state-level anti-conversion laws aimed at preventing conversion through force, fraud, or allurement.³² These laws typically require notification or permission for conversion and penalize prohibited methods.²⁴ However, the practical application of this distinction is fraught with difficulty. Critics argue that the laws often employ vague terms like ‘allurement’ ⁷⁷, which can be interpreted broadly to encompass acts of charity or social service.⁷⁹ There are concerns that these laws are disproportionately used against religious minorities ⁷⁸, hindering legitimate missionary activities protected under ‘propagation’, and potentially infringing upon the individual’s right to privacy and freedom of conscience in choosing or changing their faith.²⁴ This ongoing conflict highlights the delicate balance between protecting the freedom of conscience of potential converts and safeguarding the right to propagate one’s religion, a balance often influenced by prevailing political and social dynamics.²⁴ Future legal challenges may necessitate a more precise definition of prohibited means, particularly ‘allurement’, and stronger procedural safeguards to prevent misuse.

The explicit clause in Article 25(1) making individual religious freedom “subject to the other provisions of this Part” ¹³ provides a clear textual basis for resolving conflicts between religious freedom and other fundamental rights, such as equality (Art 14/15) or dignity (Art 21). Cases like Sabarimala ³⁶ and Shayara Bano ³⁸ exemplify such direct conflicts. However, the judiciary has often preferred to first apply the ERP test as a threshold inquiry.²⁸ If a practice is deemed non-essential, the Article 25 claim is dismissed, thereby avoiding the need for a direct and potentially more complex balancing exercise between the competing fundamental rights.²⁸ This approach has drawn criticism for potentially weakening religious freedom claims prematurely and for sidestepping the crucial task of directly weighing and reconciling conflicting constitutional values.²⁸ The outcome of the pending Sabarimala review ²⁸ could potentially clarify whether the ERP test should remain the primary filter in such conflicts or whether a more direct balancing approach is constitutionally mandated when fundamental rights clash.

III. Article 26: Freedom to Manage Religious Affairs

A. Textual Analysis and Scope:
Article 26 complements Article 25 by guaranteeing freedom of religion at the collective level, specifically to religious denominations. The text 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”.6 This right allows organized religious groups to maintain their identity and autonomy in specific spheres.6 Like Article 25, this collective right is explicitly subject to the limitations of public order, morality, and health.6
B. Defining ‘Religious Denomination’:
The scope of Article 26 hinges on the definition of a ‘religious denomination’. The foundational definition comes from the Shirur Mutt case (1954), where the Supreme Court held that a religious denomination must satisfy three conditions: (1) it must be a collection of individuals united by a common faith or system of beliefs conducive to their spiritual well-being; (2) it must have a common organization; and (3) it must be designated by a distinctive name.9 This definition seeks to identify organized religious sects or bodies.
The application of this test was crucial in S.P. Mittal v. Union of India (1983).81 The Court examined the Aurobindo Society and the Auroville township, concluding they did not constitute a religious denomination. The reasoning was that the teachings of Sri Aurobindo were primarily philosophical rather than religious, and the Society/Auroville lacked the necessary characteristics of a common religious faith and organization as traditionally understood.83 The Court relied on the Society’s own declarations and applications for tax exemptions which emphasized its non-religious nature.83
The question of denominational status was also fiercely debated in the Sabarimala case, with the majority finding that Ayyappa devotees did not constitute a distinct religious denomination separate from Hinduism, while the dissenting judge held they did.36
C. Scope of Rights under Article 26:
Article 26 grants four specific rights to religious denominations:

Clause (a): Establish and Maintain Institutions: This clause guarantees the right to establish and maintain institutions for religious and charitable purposes, such as temples, mosques, churches, monasteries, schools, hospitals, etc..⁶ The interpretation of “establish” became central in the Azeez Basha v. Union of India (1967) case concerning Aligarh Muslim University (AMU).⁸ The Supreme Court then held that AMU was not “established” by the Muslim minority because its creation as a university was formalized through a legislative Act (the AMU Act, 1920), even though the initial impetus and efforts came from the community.⁹¹ This ruling interpreted “establish” narrowly, linking it to the formal legal act of creation. However, this interpretation was overruled by a seven-judge bench in November 2024.⁹³ The new ruling held that establishment by statute does not automatically negate minority character.⁹³ The Court laid down new tests focusing on the ideation (origin of the idea), purpose (primarily for minority benefit, though not exclusively), and implementation (funding, land acquisition by the community) to determine minority establishment.⁹³ This shift signifies a move towards a more purposive understanding of “establish” in the context of minority rights.
Clause (b): Manage Own Affairs in Matters of Religion: This is arguably the most significant aspect of denominational autonomy, granting the right to manage internal affairs concerning religious doctrine, practice, and rituals.⁷ The scope of “matters of religion” is often determined using the ERP test.⁴¹ This right frequently comes into conflict with the state’s power of social reform under Article 25(2)(b), particularly regarding issues like temple entry.⁹ Courts typically attempt to harmonize these provisions, often by delineating essential religious practices from secular aspects or social customs amenable to reform.
Clause (c): Own and Acquire Property: This clause secures the right for religious denominations to own and acquire both movable and immovable property necessary for their functioning and objectives.⁶
Clause (d): Administer Property in Accordance with Law: While denominations can own property, their right to administer it is explicitly qualified by the phrase “in accordance with law”.⁷ This means the state can enact laws to regulate the administration of religious property, ensuring proper management and preventing misuse. The Shirur Mutt case clearly distinguished this right from the right under clause (b), stating that property administration is generally a secular affair subject to state regulation, unlike core “matters of religion”.³⁰
D. Limitations and State Regulation:
The rights under Article 26 are circumscribed by public order, morality, and health.6 Furthermore, the state possesses significant power to regulate the administration of property owned by religious denominations under Article 26(d).30 Courts have frequently adjudicated disputes where state laws (e.g., Hindu Religious and Charitable Endowments Acts) regulating temple administration, finances, or appointment of officials have been challenged as infringing upon the autonomy guaranteed by Article 26(b).7 The judicial task involves balancing the state’s regulatory interest in ensuring proper administration and preventing malfeasance with the denomination’s right to manage its religious affairs.

A critical distinction embedded within Article 26 itself lies between the right to manage “matters of religion” under clause (b) and the right to “administer property in accordance with law” under clause (d). As clarified in Shirur Mutt ³⁰, the former grants substantial autonomy over core religious doctrines and practices, subject primarily to the explicit limitations of public order, morality, health, and potentially the ERP test’s application.⁸¹ In contrast, the latter right concerning property administration is explicitly made subject to state-made “law”.⁴¹ This textual difference signifies that the state possesses a broader legislative competence to regulate the financial, administrative, and secular aspects of religious institutions compared to their purely religious affairs. This distinction allows for state oversight of endowments, trusts, and financial management ³⁰ while aiming to preserve the core religious autonomy protected under Article 26(b). However, the line between secular administration and religious affairs can often be thin and is a frequent source of litigation.

The recent overruling of the 1967 Azeez Basha decision ⁹³ represents a potentially significant shift in the interpretation of minority rights related to establishing and administering educational institutions, often undertaken by religious minorities exercising rights under Article 26(a) in conjunction with Article 30. The Azeez Basha court had adopted a formalistic approach, holding that statutory incorporation by the government negated the ‘establishment’ by the minority community.⁹¹ The 2024 judgment rejects this narrow view, emphasizing a purposive interpretation.⁹⁵ The new tests focusing on the ideation, dominant purpose (benefit of the minority), and implementation (community efforts in funding, land etc.) ⁹³ suggest a greater willingness to look beyond the formal legal status to the substantive historical context and community initiative. This could potentially strengthen the claims of minority status for institutions with significant historical community involvement, even if they operate under a statutory framework or receive state aid, thereby broadening the protective scope of Article 26(a) and Article 30.

A significant point of legal ambiguity revolves around whether the collective rights of religious denominations under Article 26 are subject to other fundamental rights in Part III, similar to the explicit subjection of individual rights under Article 25(1). Article 26 only mentions “public order, morality and health” as limitations.⁶ This textual difference became a central issue in the Sabarimala case ²⁸, where the respondents argued that the denomination’s right to manage its affairs under Article 26(b) was not subject to the equality rights (Art 14/15) invoked by the petitioners.²⁸ The majority opinion, however, effectively prioritized equality and non-discrimination, suggesting either an implicit limitation on Article 26 or a harmonious reading of Part III rights.²⁸ Justice Malhotra’s dissent, conversely, relied heavily on the textual distinction to argue for greater denominational autonomy immune from equality challenges.³⁶ This lack of explicit textual subjection in Article 26 creates uncertainty. While the prevailing judicial inclination appears to favor a holistic interpretation of fundamental rights, potentially restricting Article 26 rights when they clash severely with equality or dignity, the issue remains contested and awaits definitive clarification, possibly from the larger bench reviewing the Sabarimala judgment.²⁸

IV. Article 27: Freedom from Taxation for Religious Promotion

A. Constitutional Prohibition:
Article 27 provides a specific financial dimension to secularism in India. It mandates: “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”.6 The underlying principle is state neutrality in religious matters, prohibiting the use of compulsory tax revenue, collected from citizens of all faiths and none, to fund the promotion or upkeep of any single religion or sect.25 This prevents the state from financially favouring one religion over others.
B. The ‘Tax’ vs. ‘Fee’ Distinction:
A critical aspect of Article 27 jurisprudence is the distinction between a ‘tax’ and a ‘fee’. The prohibition under Article 27 applies exclusively to ‘taxes’.101 The judiciary, primarily in the Shirur Mutt 30 and Mahant Sri Jagannath Ramanuj Das v. State of Orissa 101 cases, established the criteria for this distinction:

A tax is a compulsory exaction of money by a public authority for public purposes, enforceable by law, and levied as part of a common burden without a direct quid pro quo (specific service rendered in return).¹⁰² Tax proceeds typically merge into the general revenues of the state.¹⁰²
A fee, conversely, is generally defined as a charge levied for a specific service rendered to individuals or groups by a governmental agency.³⁰ There is an element of quid pro quo, although it need not be mathematically exact. The proceeds from fees are often earmarked or set apart to meet the expenses of rendering that specific service.¹⁰²

Applying this distinction, courts have adjudicated several cases:

In Shirur Mutt, the annual contribution levied under the Madras Act based on the income of the religious institution was held to be a tax because the amount varied with income capacity and the proceeds went to the consolidated fund, not being specifically earmarked for services rendered to the Mutt.³⁰ However, the Court found no violation of Article 27 because the purpose of this tax was the proper administration and regulation of religious endowments (a secular function), not the promotion or maintenance of the Hindu religion itself.¹⁰²
In Jagannath Das, a similar contribution under the Orissa Act was held to be a fee, as the collections were specifically meant to meet the expenses of the government machinery set up for the administration of the religious institutions.¹⁰¹ Since it was deemed a fee, Article 27 was held inapplicable.
In Nasima Khatun v. State of West Bengal, contributions collected under the Wakf Act for funding the education of poor students were classified as a fee for a secular purpose (education), thus not violating Article 27.¹⁰¹
In K. Reghunath v. State of Kerala, the use of government funds (partially sourced from taxes, but also from other contributions) to restore places of worship damaged in communal riots was held not violative of Article 27.¹⁰² The court viewed this as a secular action aimed at restoring public order and normalcy, rather than promoting any particular religion.¹⁰²
A controversial interpretation emerged in the Hajj Subsidy matter (Prafull Goradia, discussed in ²⁵), where the court suggested that Article 27 is violated only if a “substantial part” of tax revenue is used for religious promotion. This introduction of a quantitative threshold was criticized as lacking textual basis and being unprincipled.²⁵

The judicially crafted distinction between taxes and fees serves a crucial function. It permits the state to levy charges on religious institutions to cover the costs of regulatory oversight or specific administrative services provided to them (such as managing endowments under Article 26(d)) without falling foul of Article 27’s prohibition.¹⁰¹ This ensures that while the state cannot use general tax revenues to promote a particular religion, it can recover expenses incurred in performing its legitimate regulatory functions related to the secular aspects of religious bodies. This maintains a balance between state oversight responsibilities and the constitutional mandate against state funding of religion.

Furthermore, the scope of Article 27’s prohibition appears focused on preventing the specific appropriation of tax proceeds for the promotion or maintenance of a particular religion or denomination.²⁵ This interpretation suggests that the article does not necessarily forbid all forms of state financial engagement with religious institutions. As seen in Shirur Mutt and Jagannath Das, levies for secular administration are permissible.¹⁰¹ The K. Reghunath case allowed state expenditure for restoring damaged religious sites of multiple communities as a measure to maintain public order.¹⁰² Even the Hajj subsidy case, despite its flawed “substantiality” test, implicitly acknowledged state support for pilgrimages, often justified as facilitating religious practice (a facet of Article 25) rather than promoting the religion itself, or as part of broader support potentially available to multiple faiths.²⁵ Therefore, Article 27 primarily acts as a bar against discriminatory state funding favouring one religion over others using specific taxes, rather than a complete wall separating state funds from any activity associated with religion.

V. Article 28: Freedom Regarding Religious Instruction in Educational Institutions

A. Constitutional Provisions:
Article 28 addresses the sensitive issue of religion in education, establishing rules regarding religious instruction and worship in different categories of educational institutions. It aims to uphold the secular character of state-funded education while respecting institutional autonomy and individual choice in other settings. The key provisions are 6:

Article 28(1): Explicitly prohibits the provision of religious instruction in any educational institution wholly maintained out of State funds. This establishes a clear secular mandate for government-run schools and colleges.⁶
Article 28(2): Creates an exception to Article 28(1). It states that the prohibition does not apply to an educational institution administered by the State but established under an endowment or trust which specifically requires that religious instruction be imparted.⁶ This clause respects the intentions of the founders of such specific institutions.
Article 28(3): Pertains to educational institutions recognised by the State or receiving aid out of State funds. It stipulates that no person attending such an institution shall be required to take part in any religious instruction or attend any religious worship conducted therein without their consent (or their guardian’s consent, if a minor).⁶ This provision safeguards individual autonomy and freedom of conscience within institutions that have a connection with the state but are not wholly maintained by it.

Institutions administered by religious denominations, while primarily governed by Article 30 (Rights of Minorities to Establish and Administer Educational Institutions), would fall under Article 28(3) if they seek state recognition or aid, making religious instruction voluntary for students. Purely private, unaided, and unrecognized institutions are not directly covered by the restrictions in Article 28.

B. Judicial Interpretation and Case Law:
The interpretation of “religious instruction” is crucial. The term generally refers to the teaching of the tenets, doctrines, rituals, and practices of a particular religion with the aim of inculcating faith, as opposed to the academic study about religion or comparative religious studies.10

In D.A.V. College Jullundur v. State of Punjab (1971), the Supreme Court addressed a challenge to a university statute requiring affiliated colleges to include the study of the life and teachings of Guru Nanak Dev.¹⁰ The Court held that the academic study of the life and teachings of a religious figure does not amount to “religious instruction” within the meaning of Article 28(1). It was deemed a part of cultural and philosophical study, permissible even in state-funded institutions.
Similarly, in Aruna Roy v. Union of India (2002), the Supreme Court examined the National Curriculum Framework for School Education (NCFSE), which recommended “value education” based on the fundamentals of all religions.¹⁰ Petitioners argued this violated Article 28 by imposing religious instruction in state-funded schools.¹¹⁰ The Court rejected this contention, holding that teaching about religions and imparting value education derived from diverse religious philosophies to promote social harmony and moral values is not prohibited religious instruction under Article 28.¹⁰ The Court distinguished between religious instruction (imparting dogma) and religious education (study about religions).
Table: Rules for Religious Instruction under Article 28

Type of Educational Institution	Funding/Administration Source	Rule on Religious Instruction	Attendance Requirement	Relevant Clause
1. Wholly Maintained by State Funds	Fully State Funded	Prohibited	Not Applicable	Art 28(1)
2. State Administered, Established under Endowment/Trust requiring it	State Administered, Established by Trust requiring Instruction	Permitted (as per trust/endowment mandate)	Voluntary (Consent required per Art 28(3))¹	Art 28(2)
3. Recognized by State OR Receiving Aid from State Funds	Private / Denominational / Trust etc. + State Recognition/Aid	Permitted	Voluntary (Requires consent of individual or guardian)	Art 28(3)
4. Neither State Maintained, Aided, Recognized nor Trust under 28(2)	Purely Private / Denominational	Permitted (Not restricted by Art 28)	Governed by institution’s rules (Art 28 not applicable)	N/A

¹*Note: While Art 28(2) permits instruction, Art 28(3) likely governs attendance if the institution is also state-administered/aided/recognized, ensuring voluntariness.*

Article 28 embodies a carefully constructed compromise inherent in India’s model of secularism. It prevents the state from using its resources to impart religious dogma in its own institutions, thereby upholding neutrality.¹⁰⁸ Simultaneously, it respects historical endowments and trusts that may mandate religious teaching ¹⁰⁸, and crucially, protects the individual student’s freedom of conscience in institutions that receive state recognition or aid by making participation in religious activities strictly voluntary.¹⁰⁸ This multi-pronged approach attempts to balance the secular character of the state with the religious diversity of its populace and the autonomy of individuals and institutions.

The judicial distinction between prohibited ‘religious instruction’ and permissible education ‘about’ religion or value education derived from religious philosophies, as articulated in D.A.V. College and Aruna Roy ¹⁰, is vital for curriculum design in a pluralistic society. It allows for the academic exploration of religious thought and the inculcation of universal values found across different faiths, which can contribute to mutual understanding and tolerance.¹⁰ However, this distinction remains a delicate one. The implementation of such curricula can easily become contentious, with potential for the line between objective study and subtle propagation of majority viewpoints to blur.¹¹⁰ This necessitates ongoing vigilance from educational bodies and potential judicial scrutiny to ensure that education about religion does not devolve into religious instruction in state-affiliated institutions, thereby preserving the spirit of Article 28.

VI. Contemporary Issues, Conflicts, and Judicial Trends

The constitutional framework for religious freedom, while comprehensive, continually faces challenges and requires interpretation in light of contemporary socio-political realities. Several key issues and conflicts dominate the current landscape.

A. State Regulation of Religious Practices and Institutions:
The tension between the state’s regulatory powers (derived from Article 25(2) for secular activities, Article 26(d) for property administration, and the general police powers related to public order, morality, health) and the autonomy sought by religious denominations under Article 26(b) (management of religious affairs) remains a persistent source of conflict.2 State interventions through legislation like Religious and Charitable Endowments Acts, regulating temple finances, administration, and appointment of functionaries, are often challenged as infringing upon the denomination’s right to manage its own religious affairs.30 The Essential Religious Practices (ERP) doctrine frequently becomes the legal battleground where courts attempt to delineate the permissible boundaries of state intervention by distinguishing protected religious matters from regulatable secular activities.41
B. Freedom of Propagation vs. Anti-Conversion Laws:
The constitutional right to propagate religion (Article 25) clashes with state laws aimed at regulating religious conversions. The foundational judgment in Rev Stanislaus vs State of Madhya Pradesh held that propagation does not encompass a fundamental right to convert another person, and states possess the legislative competence under the ‘public order’ entry to enact laws prohibiting conversions effected through force, fraud, or allurement.32 Numerous states have enacted such ‘Freedom of Religion Acts’.24 These laws typically penalize conversions using prohibited means and often require individuals intending to convert, and sometimes the religious officiant, to notify district authorities.33
These laws are highly controversial. Critics argue they unduly restrict the freedom of conscience (Article 25) of individuals wishing to convert and the right to propagate of religious preachers.77 The definitions of prohibited means, particularly ‘allurement’ or ‘inducement’, are often criticized as vague and overly broad, potentially criminalizing legitimate acts of charity or persuasion.77 Concerns are frequently raised about the potential for misuse of these laws to harass religious minorities 77 and infringe upon the right to privacy in matters of personal faith and choice.24 The recent trend of linking such laws to inter-faith marriages, under the controversial ‘love jihad’ narrative, adds another layer of complexity.24
C. Conflicts between Religious Freedom (Art 25/26) and Other Fundamental Rights:
A significant trend in recent jurisprudence involves conflicts where claims based on religious freedom clash with other fundamental rights, particularly equality, non-discrimination, and dignity.
Equality (Art 14/15) & Non-Discrimination: Gender justice has been a major flashpoint.

In the Sabarimala case, the majority invalidated the long-standing practice of excluding women aged 10-50 from the temple, holding it violated their rights to equality (Article 14), non-discrimination based on sex (Article 15), and freedom of religion (Article 25).⁸ The Court prioritized ‘constitutional morality’ over the claimed religious custom, finding the exclusion was not an essential religious practice.³⁶ The dissent, however, prioritized the denominational rights under Article 26 and argued for judicial restraint in matters of faith.³⁶
In Shayara Bano, the practice of instant Triple Talaq was struck down primarily because it was deemed manifestly arbitrary, violating Article 14, and discriminatory against women, violating Article 15.¹⁹ The Court found the practice lacked Quranic sanction and was not protected as an essential religious practice under Article 25.²³

Dignity (Art 21): Practices perceived as discriminatory or exclusionary, like those challenged in Sabarimala and Shayara Bano, are increasingly argued to violate the fundamental right to live with dignity, which is read into Article 21.³⁶ The argument is that subjecting individuals, particularly women, to exclusion or arbitrary practices based on gender or biological factors undermines their intrinsic worth and dignity.
Untouchability (Art 17): In the Sabarimala judgment, Justice Chandrachud controversially drew a parallel between the exclusion of women based on menstruation (associated with notions of purity/pollution) and the practice of untouchability prohibited under Article 17, arguing both stem from discriminatory social exclusion.³⁶

D. Uniform Civil Code (UCC) Debate (Article 44):
Article 44 of the Constitution, a Directive Principle of State Policy, directs the state to “endeavour to secure for the citizens a uniform civil code throughout the territory of India”.3 The UCC debate pits the goal of achieving legal uniformity, national integration, gender justice, and simplification of personal laws against concerns about protecting religious freedom (Article 25) and the cultural autonomy of India’s diverse religious minorities.3 Currently, personal laws (governing marriage, divorce, inheritance, adoption) vary based on religion.11
Landmark cases like Mohd. Ahmed Khan v. Shah Bano Begum (1985) 112 and Sarla Mudgal v. Union of India (1995) 114 saw the Supreme Court highlighting the need for a UCC to prevent anomalies and ensure justice, particularly for women. However, Article 44 remains non-justiciable.11 While Goa has a common civil code (Portuguese Civil Code, 1867) 3, no nationwide UCC has been enacted. Recent years have seen renewed political push, with Uttarakhand becoming the first state post-independence to pass a UCC bill in 2024.3 The Law Commission of India, in its 2018 consultation paper, suggested codification and reform of existing personal laws to remove discrimination rather than imposing a single UCC, acknowledging the importance of diversity.11
E. Recent Controversies and Judicial Approaches:

Hijab Ban Case (Karnataka): This controversy erupted when Muslim students wearing hijabs were denied entry into educational institutions in Karnataka, citing uniform policies and a subsequent government order.¹⁸ The Karnataka High Court upheld the ban, ruling that wearing the hijab is not an essential religious practice in Islam and that the government order was constitutionally valid.¹⁸ On appeal, the Supreme Court delivered a split verdict in October 2022.¹⁸ Justice Hemant Gupta upheld the High Court’s decision, emphasizing uniformity and secularism in schools.¹⁸ Justice Sudhanshu Dhulia allowed the appeals, quashing the government order and stressing the importance of choice, privacy, dignity, and the education of girls, while questioning the relevance of the ERP test in this context.¹⁸ Due to the split verdict, the High Court’s decision technically remains operative, and the matter has been referred to the Chief Justice for constitution of a larger bench.⁷³ The case highlights the complex interplay between religious expression (Art 25), freedom of speech (Art 19), privacy and dignity (Art 21), the right to education, and the state’s power to regulate educational institutions.
Other Issues: Concerns surrounding anti-conversion laws have intensified, particularly those enacted with provisions targeting inter-faith marriages, often framed within the “love jihad” discourse.²⁴ These laws face challenges regarding privacy, choice, and potential discrimination.

A clear pattern emerging from recent judicial decisions, particularly in high-profile cases like Shayara Bano ³⁸ and the Sabarimala majority verdict ³⁶, indicates an increasing tendency to prioritize fundamental rights guaranteeing equality (Articles 14/15) and dignity (Article 21) when they conflict with claims rooted in religious freedom (Articles 25/26). Courts often rationalize these decisions by employing the ERP test to declare the contested religious practice non-essential ²³, or by invoking the principle of ‘constitutional morality’ as overriding traditional customs.³⁶ This approach contrasts with the greater deference shown to denominational autonomy in some earlier judgments.⁴⁰ This evolving jurisprudence suggests that religious practices, especially those perceived as discriminatory, particularly against women or marginalized groups, are being subjected to stricter scrutiny under the fundamental rights framework. This may pave the way for further judicial intervention aimed at reforming personal laws and customs to align them with constitutional values.

The concurrent debates surrounding the Uniform Civil Code (UCC) and anti-conversion laws expose a fundamental tension within the Indian polity.³ On one hand, there is a strong push towards national integration, uniformity, gender justice, and the elimination of discriminatory practices, arguments frequently marshalled in support of both UCC ³ and anti-conversion laws (framed as protecting vulnerable individuals and public order).³³ On the other hand, these initiatives face resistance grounded in the constitutional guarantees of religious freedom (Article 25), the right of denominations to manage their affairs (Article 26), and the protection of minority cultural and educational rights (Articles 29 & 30).³ This reflects a deeper societal and political cleavage regarding the ideal balance between homogeneity and heterogeneity, individual rights versus group rights, and the precise meaning of secularism in the Indian context. Legislative actions and judicial pronouncements in these domains are thus highly sensitive, often becoming proxies for broader political and ideological contests over national identity and the state-religion relationship.

The judiciary’s self-assigned role in determining the ‘essentiality’ of religious practices through the ERP test ¹⁶ has become a central, yet highly contested, feature of state-religion interaction in India. Initially intended to distinguish the protected religious sphere from regulatable secular activities associated with religion (Art 25(2)(a), Art 26(d)) ⁴⁶, the doctrine’s application has expanded significantly. Courts now frequently use it not just to define the scope of regulation, but to assess the substantive validity of the practice itself against constitutional benchmarks, particularly equality and non-discrimination.³⁸ This judicial power to define the ‘essence’ of various faiths is criticized as a form of theological intrusion ¹⁶ that potentially homogenizes diverse religious traditions ¹⁶ and undermines the internal normative structures and autonomy of religious communities.⁵⁹ The future trajectory of the ERP test, currently under review by a nine-judge bench ²⁸, will be profoundly significant for religious freedom jurisprudence. The debate considers potential alternatives, such as focusing on the sincerity of belief ⁶⁶ or engaging in direct balancing of conflicting rights ²⁸, which could reshape how courts mediate the complex relationship between law and religion in India.

VII. Synthesis: Current Legal Position and Judicial Stance

The right to freedom of religion under Articles 25-28 of the Indian Constitution represents a complex tapestry of individual and collective rights, subject to specific limitations and evolving judicial interpretation.

Core Guarantees & Limitations: Article 25 guarantees individual freedom of conscience and the right to profess, practice, and propagate religion, subject to public order, morality, health, and other fundamental rights. Article 26 grants religious denominations the right to establish institutions, manage religious affairs, and own/administer property, subject to public order, morality, and health (with property administration also subject to law). Article 27 prohibits state compulsion to pay taxes specifically for promoting any particular religion, distinguishing taxes from permissible fees for secular services. Article 28 regulates religious instruction in educational institutions, prohibiting it in fully state-funded institutions and making it voluntary in state-recognized or aided ones.
The ERP Doctrine: The Essential Religious Practices (ERP) doctrine, born from Shirur Mutt, remains a central, albeit contentious, tool used by courts to determine which practices fall under the protection of Articles 25 and 26.¹⁶ Its application has evolved from deference to religious texts towards a more interventionist approach where courts assess practices against constitutional values. Its future remains uncertain pending review by a larger Supreme Court bench.²⁸
Balancing Religious Freedom with Other Rights: A discernible judicial trend prioritizes fundamental rights like equality (Art 14/15) and dignity (Art 21) when they conflict with religious practices, particularly those deemed discriminatory against women or marginalized groups.³⁸ Constitutional morality is increasingly invoked to override traditional customs inconsistent with fundamental rights.
Stance on Key Issues:

Conversion: The right to propagate (Art 25) does not include a fundamental right to convert others; states can regulate conversions based on force, fraud, or allurement under the ‘public order’ head (Rev Stanislaus).³² However, the scope and application of these laws remain controversial.
State Regulation: The state has significant power to regulate secular aspects associated with religion, particularly property administration (Art 26(d)) ³⁰, but limited power over core ‘matters of religion’ (Art 26(b)), with the ERP test often mediating this boundary.
Uniform Civil Code: UCC remains an unenforced Directive Principle (Art 44), with ongoing debate about its desirability and feasibility versus protecting religious personal laws and diversity.³
Religious Expression in Public Spaces: The extent to which religious attire or symbols can be regulated in secular spaces like schools is highly contested, as evidenced by the pending Hijab case.¹⁸

In essence, the legal position on religious freedom in India is dynamic. While the Constitution provides robust guarantees, these are increasingly interpreted through the prism of broader constitutional values like equality, dignity, and secularism (in its Indian conception). The judiciary plays a pivotal role in navigating the inherent tensions between individual rights, group autonomy, state regulation, and social reform within India’s deeply pluralistic context.

VIII. Future Prospects and Conclusion

The jurisprudence surrounding religious freedom in India stands at a critical juncture, with several ongoing legal challenges and potential legislative developments poised to shape its future trajectory.

Ongoing Legal Challenges:

The most significant pending matter is the nine-judge bench review of the Essential Religious Practices (ERP) doctrine, originating from the Sabarimala review petitions.²⁸ This review holds the potential to fundamentally alter how courts engage with religious freedom claims. Possible outcomes range from reaffirming the ERP test (perhaps with clearer guidelines), modifying it significantly, replacing it with alternative tests (like sincerity of belief or direct balancing), or even discarding it altogether. The decision will have profound implications for the scope of religious autonomy and the judiciary’s role in adjudicating religious matters.
The final resolution of the Karnataka Hijab case by a larger Supreme Court bench is also awaited.⁷³ This judgment will likely clarify the extent to which religious expression, particularly attire, is protected under Articles 19(1)(a) and 25 in public educational institutions, the applicability of the ERP test in individual rights claims versus state regulations, and the balance between religious freedom, equality, non-discrimination, and the state’s interest in maintaining discipline and secularism in schools.
Challenges to various state anti-conversion laws, focusing on issues of vagueness (especially ‘allurement’), privacy infringement, and discriminatory application, are likely to continue, potentially leading to further judicial scrutiny of their constitutionality.
Potential Legislative Changes:

The prospect of enacting a nationwide Uniform Civil Code (UCC) remains a significant political and legal possibility, driven by arguments for gender justice and national integration.³ However, substantial hurdles remain, including achieving political consensus, addressing concerns of religious minorities about cultural autonomy and freedom of religion, and navigating the complexities of drafting a code acceptable across diverse communities.¹¹ State-level initiatives, like Uttarakhand’s, may serve as templates or trigger further debate.
Legislatures might revisit anti-conversion laws, potentially amending them to address criticisms regarding vague terminology, procedural fairness (e.g., burden of proof), and potential for misuse, or conversely, strengthening them further based on political considerations.²⁴
Evolving Judicial Interpretation:

The future direction of judicial interpretation is likely to continue grappling with the balance between religious freedom and other fundamental rights, particularly equality and dignity.²⁸ The trend towards prioritizing constitutional morality and substantive equality in cases of conflict may persist, especially concerning gender justice. The outcome of the ERP review will heavily influence the methodology used in this balancing act.
The recent overruling of Azeez Basha ⁹⁵ signals a potential shift towards a more purposive and less formalistic interpretation of minority rights under Articles 26 and 30. This could lead to a re-evaluation of the status of other institutions and a broader understanding of the protections afforded to minorities in establishing and administering educational institutions.
Courts will likely continue to refine the understanding of Indian secularism, navigating its unique path between non-establishment and equal respect/principled distance.
Concluding Remarks:
Articles 25 to 28 of the Indian Constitution are vital pillars supporting the nation’s secular fabric and democratic ethos. They encapsulate a constitutional commitment to protecting the freedom of conscience and religion for individuals and groups within a framework of public order, morality, health, and respect for other fundamental rights. The interpretation and application of these articles have generated a complex, dynamic, and often contested body of jurisprudence, reflecting the inherent challenges of safeguarding religious liberty in one of the world’s most religiously diverse societies. The ongoing debates surrounding the Essential Religious Practices doctrine, anti-conversion laws, the Uniform Civil Code, and the intersection of religious freedom with equality and dignity underscore the continuous need for careful calibration by both the legislature and the judiciary. Upholding the delicate balance between respecting religious autonomy and diversity, ensuring individual fundamental rights, and promoting social harmony remains a crucial and evolving task for India’s constitutional democracy. The future will undoubtedly witness further legal and societal negotiation of these intricate boundaries.

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