← The hardest concepts in Indian law
In one breath
Article 25 protects every person’s freedom of conscience and the right to profess, practise and propagate religion, and Article 26 lets religious denominations manage their own affairs in matters of religion, both subject to public order, morality and health. The Supreme Court protects what is essential to a religion, and the State may regulate secular activities connected with it and provide for social reform.
The picture
The fruit and its rind
A fruit has a core that makes it what it is and a rind that protects and surrounds it. A gardener may trim the rind, for example by cutting away rot, without harming the fruit. Cutting into the core is another matter, because then the fruit is no longer the same.
The Court uses this picture to sort practices. In Shirur Mutt it held that what is essential to a religion is to be decided by the doctrines of that religion itself, and that the State may regulate secular activities such as the management of property, finance and administration. Durgah Committee added that a practice must be an essential and integral part of the religion, and that superstitious accretions are not protected. Ratilal Panachand Gandhi stressed the individual’s freedom, and Bijoe Emmanuel protected a sincere conscientious belief from compulsion even though the belief was held by a small group.
Where the picture stops working
A fruit has a core that anyone can see, but a religion’s core is argued over within the religion, and the judges are not experts in doctrine. Critics say the essential-practices test makes the Court decide theology, and others say it is a necessary way to separate faith from custom. The picture also omits the provision allowing the State to throw open public Hindu temples to all classes, which is an express limit on the denominational right.
How it really works
- 1Identify the practice and who claims the protection: an individual under Article 25 or a denomination under Article 26.
- 2Ask whether the practice is part of religion, using the religion’s own texts, tradition and the evidence of those who follow it.
- 3Ask whether it is essential and integral to that religion, or a social, economic or secular activity connected with it.
- 4If the practice is protected, check the limits: public order, morality, health and, for Article 25, other fundamental rights and the State’s power to regulate secular activity and provide social reform.
- 5A secular aspect, such as administration of property, can be regulated by law even where the underlying faith is protected.
Why people get it wrong
- Thinking any practice linked to religion is protected. Only those essential to the religion are, and the connected secular activity can be regulated.
- Treating Articles 25 and 26 as the same. The first protects individuals, and the second protects denominations managing their own affairs.
- Assuming the right is absolute. It is subject to public order, morality and health.
- Assuming the Court decides what is essential by its own view of doctrine alone. It looks to the religion’s own tenets and evidence.
A worked example
The facts are invented
A temple trust that follows a long tradition claims that only men born in a certain family may serve as priests, and the State passes a law that anyone trained in the rituals may be appointed. The trust says the law interferes with its freedom under Article 26.
The Court asks first whether the rule on who may serve is an essential part of the denomination’s religion, shown by its own texts and practice. If the rituals themselves require a particular person, the State cannot override that. If the rule is only a hereditary custom that is a matter of management, the State may regulate who is appointed to the post, as long as the rituals are respected. The Court examines the evidence of belief, and does not simply accept the label that either side gives.
Try it
A State law regulates the accounts and property management of a religious trust. How does the Court usually treat the law under Article 26?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Ratilal Panachand Gandhi v State of Bombay, AIR 1954 SC 388
- Commissioner, Hindu Religious Endowments v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282
- Durgah Committee, Ajmer v Syed Hussain Ali, AIR 1961 SC 1402
- Bijoe Emmanuel v State of Kerala, (1986) 3 SCC 615
Where to go next
Courses
Dictionary
More hard concepts in India law
- The basic structure doctrine (Constitutional law)
- Equality and arbitrariness under Article 14 (Constitutional law)
- The golden triangle of Articles 14, 19 and 21 (Constitutional law)
- Pith and substance and the three lists (Constitutional law)
- Eclipse, severability and Article 13 (Constitutional law)
- Reasonable restrictions on free speech (Constitutional law)
- Public interest litigation and standing (Constitutional law)
- Natural justice and legitimate expectation (Administrative law)
- Free consent, coercion and undue influence (Contract law)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. India has a written Constitution, central and State legislation, and a unified court system under the Supreme Court. Each page states the usual formulation of the rule and names landmark decisions, with the citations as they are usually given in the Supreme Court Cases and All India Reporter series. The criminal codes and the law of evidence were replaced by new statutes, so the pages on criminal law state the doctrine and the decisions and mostly leave out section numbers; check the current text of any statute you rely on. Personal laws differ by community. This is a study aid, not legal advice, and an Indian advocate should check anything you need to rely on.