Freedom of Religion Under Indian Constitution: Whether Freedom of

Religion or Freedom From Religion

India has been the birth place of quite number of religions and also it is acknowledged as the
country which is the land of spiritual beliefs, culture and philosophical thinking. Perception
relating to ‘Religion’ varies person to person; it is entirely a matter of choice and belief. If we
pay heed to the Indian scenario, it can be concluded that when it comes to their religion, people
in this country have a strong faith and dependence. The reason behind having strong faith may be
that they perceive that religion adds meaning and reason to their lives. People who are having
strong faith leave no stone unturned in showing their fidelity towards their respective religion.[1]

Freedom of Religion Under Indian Constitution

Various fundamental rights are provided as well as guaranteed by our Indian Constitution under
Part III. Amongst them, freedom of religion is also the one provided which is given under Article
25-28 of the Indian Constitution. India, being a secular nation gives every citizen the right to
follow the religion he believes in.

Constitutional Provisions

Articles 25-28 of the Indian Constitution guarantee the right to freedom of religion to all citizens
who all are residing within the territory of India.
1.Freedom of conscience and free profession of religion.( Article 25)
2.Freedom to manage religious affairs (Article 26)
3.Freedom from payment of taxes for promotion of any particular religion( Article 27)
4.Freedom to attend religious instructions ( Article 28)

1
[1] https://legaldesire.com/freedom-of-religion-in-india/.
[2] AIR 1994 SC 1918.
·In the case of Mohd . Hanif Quareshi v State of Bihar[6],wherein it was claimed by the
petitioner that the sacrifice of the cows during Bakr- id was an essential part of hi religion but
this argument was rejected by the courtas the sacrifice of cow on the Bakri-Id day was not an
essential part of the Mohammedan religion and hence could be prohibited by State under clause
(2) (a) of Article 25.

·In the case of L. T .Swumiar v Commr. H.R.F . Madras[7],wherein it was held that even if a tax
is imposed on persons belonging to a particular religion, in order to meet the expenses of that
particular religion, such tax is void.

·In the case of RobasaKhanum vs. Khodabad Irani[8], it was held that the conduct of a spouse
who converts to Islam has to be judged on the basis of the rules of justice equity and good
conscience.

·In the case of Sarla Mudgal V. Union of India[9], it was held that conversion to any other
religion by either one or both the spouses is not at all a ground to have the marriage dissolved.

Article 25

Freedom of conscience and free profession, practice and propagation of religion

(1) 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
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from
making any law
(a) regulating or restricting any economic, financial, political or other secular activity which may
be associated with religious practice;
(b) 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 Explanation I The wearing and
carrying of kirpans shall be deemed to be included in the profession of the Sikh religion
Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a
reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu
religious institutions shall be construed accordingly.[10]

Article 26

Freedom to manage religious affairs 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.[11]

Article 27

Freedom as to payment of taxes for promotion of any particular religion 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 religions denomination.
[12]
2

Article 28

Freedom as to attendance at religious instruction or religious worship in certain educational

institutions
(1) No religion instruction shall be provided in any educational institution wholly maintained out
of State funds
(2) Nothing in clause ( 1 ) shall apply to an educational institution which is administered by the
State but has been established under any endowment or trust which requires that religious
instruction shall be imparted in such institution
2
[10] https://indiankanoon.org/doc/631708/.
[11] https://indiankanoon.org/doc/1858991/.
[12] https://indiankanoon.org/doc/211413/.
[13] https://indiankanoon.org/doc/1734560/.
(3) No person attending any educational institution recognized by the State or receiving aid out
of State funds shall be required to take part in any religious instruction that may be imparted in
such institution or to attend any religious worship that may be conducted in such institution or in
any premises attached thereto unless such person or, if such person is a minor, his guardian has
given his consent thereto Cultural and Educational Rights.[13]

DEFILEMENT OF PLACES OF WORSHIP OR OBJECTS OF VENERATION

Section 295. Injuring or defiling place of worship with intent to insult the religion of any class

Whoever destroys, damages or defiles any place of worship, or any object held sacred by any
class of persons with the intention of thereby insulting the religion of any class of persons or
with the knowledge that any class of persons is likely to consider such destruction, damage or
defilement as an insult to their religion, shall be punishable with imprisonment of either
description for a term which may extend to two years, or with fine, or with both.

Section 297. Trespassing on burial places, etc

Whoever, with the intention of wounding the feelings of any person, or of insulting the religion
of any person, or with the knowledge that the feelings of any person are likely to be wounded, or
that the religion of any person is likely to be insulted thereby,commits any trespass in any place
of worship or on any place of sculpture, or any place set apart from the performance of funeral
rites or as a depository for the remains of the dead, or offers any indignity to any human corpse,
or causes disturbance to any persons assembled for the performance of funeral ceremonies,shall
be punished with imprisonment of either description for a term which may extend to one year, or
with fine, or with both.

Ingredients

Section 295 compels people to respect the religious susceptibilities of persons of different
religious persuasions or creeds by making destruction, damage or defilement of a place of
worship or an object held sacred, with the intent to insult the religion, by a class of persons,
punishable.[ii] Section 297 extends the principle in Section 295 to places which are treated as
sacred. It punishes a person who, with the intent to insult the religion of another or hurt the
religiou feelings of a person, commits trespass in any place of worship or of sepulture, or any
place of burial or place set apart for burial rites.[iii]3

The essential ingredients of this section are:

Intention or knowledge.

Destruction, damage or defilement of:

A place of worship

A place of veneration

An object held sacred

Trespass into:

A place of worship

A place of sepulture

A place set for performing funeral rites or a depository of remains of the dead

Intention or Knowledge

3
Gopinath Puja Panda Samanta v. Ramchandra Deb AIR 1958 Ori 220

[ii]S VeerbhadraChettiar v. EV RamaswamyNaicker AIR 1958 SC 1032

[iii]Mustaffa Rahim v. Motilal (1909) Cr LJ 160

[iv] (1883) All WN 39

[v]Saidullah Khan v. State of Madhya Pradesh, AIR 1955 Bhopal 23

Soban Ram v. Crown, 67 IC 686

[vii]Atmaran v. King Emperor, AIR 1924 Nag 121

[viii] AIR 1961 Ker 28

[ix]Ram Prasad v. State of Uttar Pradesh, AIR 1952 All 878

The essence of the offence under Section 295 is the intention to destroy, damage or defile a place
of worship or an object held sacred. Without the requisite mens rea, mere defilement of a place
of worship is not an offence. The intention to insult is a question of fact which can be judged
depending on the facts and circumstances of the case.

In the case of Jan Mohammed v. Narain Das[iv]the accused removed some rubble and old
building materials belonging to a mosque that was in rotten condition and consequently in
disuse. The accused was held not liable under these sections as he had no intention of insulting
the Mohammedan religion or any of its practitioners. He also had no knowledge that his actions
may cause insult or hurt to any class of people.

But, throwing a lit cigarette by a Mohammedan on the ‘Viman’, an object sacred to the Hindus
cannot be said to be an unintentional act or one without guilty knowledge. Such an action is an
insult to the Hindu religion and its practitioners. Hence the accused was held guilty.[v] Also,
committing sexual intercourse within or inside a mosque or a temple is an offence under Section
297.[vi]

Destruction, Damage or Defilement

The words destroy or damage usually mean an act physically or materially affecting the property
concerned but it should also be understood in the sense of making property dirty, unclean or foul.
The word ‘defilement’ would not only mean physical destruction but also situations wherein the
place of worship or the object of worship would be rendered ritually or ceremonially impure. The
presence of a person belonging to a lower caste in a Hindu temple open to only those of higher
castes was held not to be defilement under the ambit of Section 295.[vii]

Trespass into Place of Worship or Place of  Sepulture

Section 297 makes any trespass into a place of worship or a place of sepulture a criminal offence.
This means that the trespass committed need not amount to criminal trespass for it to come
within the scope of Section 297.[ix] The word ‘trespass’ has been used in this section to indicate
an unjustifiable intrusion upon a property in the possession of another.[x] Sexual intercourse
within a place of worship would make the actors liable under this section.[xi]

Indignity to Human Corpse and Disturbing Funeral Rites

Showing any manner of disrespect to a human corpse disturbing the performance of funeral rites
is a criminal offence under Section 297. The word ‘disturbance’ means any form of active
interference or the hindrance to the performance of the funeral ceremonies. In Basir-ul-Huq v.
State of West Bengal[xii] the mother of one DhirendranathBera died. He along with others took
the corpse to the cremation grounds. In the meantime, the accused filed a complaint with the
police stating that Dhirendranath had throttled his mother to death. When the pyre was ablaze,
the accused along with the sub-inspector arrived at the crematorium. The accused persuaded the
policeman that if the flames were extinguished that the marks of injury would be found on the
body. The fire was hence extinguished but no marks were found. Dhirendranath filed a complaint
against the accused under Section 297 and stated that a prior enmity caused a mala fide intention
to hurt his religious sentiments which caused him to trespass on the cremation grounds and cause
the dead body to be desecrated. The accused was convicted and sentenced to three months
rigorous imprisonment.4

OUTRAGING OR WOUNDING RELIGIOUS FEELINGS

Section 295A. Deliberate and malicious acts, intended to outrage religious feelings of any class
by insulting its religion or religious beliefs

Whoever, with deliberate and malicious intention of outraging the religious feelings of any class
of citizens of India,by words, either spoken or written, or by signs or by visible representations
or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be
punished with imprisonment of either description for a term which may extend tothree years, or
with fine, or with both.

4
Jhari Singh v. Emperor, AIR 1920 Pat 349

[xi]Maqsud Hussain v. Emperor, AIR 1924 All 9

[xii] AIR 1953 SC 293

[xiii]Public Prosecutor v. SunkuSeethalah, (1910) ILR 34 Mad 92

Section 298. Uttering, words, etc., with deliberate intent to wound the religious feelings of any
person

Whoever, with the deliberate intention of wounding the religious feelings of any person, utters
any word or makes any sound in the hearing of that person or makes any gesture in the sight of
that person or places, any object in the sight of that person, shall be punished with imprisonment
of either description for a term which may extend to one year, or with fine, or with both.

Ingredients

These sections of the Indian Penal Code relate to acts done deliberately with an intent to outrage,
wound or insult the religious feelings or sentiments of any persons. Section 295A deals with
actions intended to outrage the religious feelings or insult the religious beliefs or the religion of a
particular class of persons that can be termed as ‘deliberate and malicious’; whereas Section 298
makes punishable those ‘deliberate’ acts of verbal or visible representation that intend to wound
the religious feelings of another.

The difference in the two sections can be seen from the way they have been worded. Section
295A refers to ‘deliberate and malicious intention’ of ‘outraging’ the religious feelings of a
‘class of citizens of India’. Section 298 makes any utterances done or gestures made with
‘deliberate intention’ of ‘wounding’ religious feelings of a ‘person’ punishable. When
contrasted, it is seen that the word ‘outraging’ is much stronger than the word ‘wounding’ and
hence the offence under Section 295A is more serious than the offence under Section 298. As a
result, it is observed that the punishment under Section 295A is simple or rigorous imprisonment
extending up to three years whereas that under Section 298 is either type of imprisonment which
may extend to a term of one year or with a fine or both.

These sections allow fair latitude for religious discussions and debates but at the same time
prevents people from offering under the pretext of such discussion any intentional insults to what
is held sacred by others.

DISTURBING RELIGIOUS ASSEMBLIES

Section 296. Disturbing religious assembly

Whoever voluntarily causes disturbance to any assembly lawfully engaged in the performance of
religious worship, or religious ceremonies, shall be punished with imprisonment of either
description for a term which may extend to one year, or with fine, or with both.

Ingredients

The essential ingredients of this section are:

There must be an assembly which is engaged in the performance of religious worship or

religious ceremony

Such assembly and performance of such ceremony should be lawful

The accused must cause disturbance to such assembly

The accused must do so voluntarily

This section affords special protection to congregational worship. It does not cover individual
worship. A religious procession is regarded as a lawful assembly unless it interferes with the
ordinary use of the streets by the public or contravenes any rules or regulations.

Where a mosque situated on the banks of a highway, passing by in a procession with music
playing loudly at a time when prayers are going on will be an offence as such music would
necessarily disturb the congregation engaged in prayer.[xiii]

Trespassing on burial places, etc (Section 297 of IPC)

Trespassing on burial places, etc:

“Whoever, with the intention of wounding the feelings of any person, or of insulting the religion
of any person, or with the knowledge that the feelings of any person are likely to be wounded, or
that the religion of any person is likely to be insulted thereby, commits any trespass in any place
of worship or on any place of sepulture, or any place set apart for the performance of funeral
rites or as a depository for the remains of the dead, or offers any indignity to any human corpse,
or causes disturbance to any person assembled for the performance of funeral ceremonies, shall
be punished with imprisonment of either description for a term which may extend to one year, or
with fine, or with both.”

Section 297 punishes acts of three kinds:

i) Trespass in place of worship or upon the sepulture of the dead,

ii) Indignity to a human corpse, and

iii) Disturbance in a funeral ceremony.

Places reserved for the cremation or burial of the dead are universally regarded with veneration
as places sacred to the memory of the dead. They are regarded specially sacred by followers of
religions in which belief in the transmigration of the souls is a recognized doctrine. A trespass
upon such places is regarded as a sacrilege not lightly to be condoned.

With them the performance of the funeral obsequies in accordance with the orthodox formula is
a manner of strict religious injunctions, the slightest disturbance of which might imperil the
response of the disembodied spirit of the departed. With others, the feeling of respect due to
sympathy, and the refinement which dictates respect for the dead on account of their having
entered the great unknown.

Section 297 punishes a person who trespasses on burial place or on places of sepulture. The
trespass may be a civil trespass or mere encroachment or an unauthorized entry without
amounting to criminal trespass. Trespass here means any violent or injurious act, committed in a
place of worship with such intention or knowledge as is defined in Section 297. When some
persons had sexual connection inside a mosque, they were offenders under Section 297.

The essence of Section 297 is an intention, or knowledge of likelihood, to wound feelings or

insult religion and when with that intention or knowledge trespass on a place of sepulture,
indignity to a corpse, or disturbance to persons assembled for funeral ceremonies, is committed it
becomes an offence under Section 297.5

5
Article shared by sukendar nath
http://www.shareyouressays.com/knowledge/trespassing-on-burial-places-etc-section-297-of-ipc/119027
Where a patient dies while under operation by a doctor who after the death removes the liver of
the deceased for transplantation to another patient, without the knowledge and consent of
relatives, the doctor would be liable under Section 297 for offering indignity to human corpse.

In Basir-ul-Huq v. State of West Bengal [AIR 1953 SC 293], while, a person kept his dead
mother’s body on the funeral pyre, the accused accompanied by the Police, arrived at the
cremation ground after giving complaint that the woman was killed by throttling. When the body
was examined after extinguishing the fire, there were no wounds or marks of injury on it. The
accused was convicted and sentenced to three months rigorous imprisonment for trespassing on
the cremation ground and caused the dead body to be taken out.

An offence under Section 297 is cognizable but summons should ordinarily issue in the first
instance. It is bailable but not compoundable, and is triable by any Magistrate.

Section 298 of Indian Penal Code, 1860 – Explained!

Uttering words, etc., with deliberate intent to wound religious feelings:

This section punishes uttering words etc. with the deliberate intention of wounding the religious
feelings of any person. It says that whoever either utters any word, or makes any sound, which a
person can hear, or makes any gesture which a person can see, or places any object which a
person can see, with the deliberate intention of wounding the religious feelings of that person,
shall be punished with simple or rigorous imprisonment for a term extending up to one year, or
with fine, or with both.

The section requires either saying something, or making any sound which a person can hear, or
making any gesture which one can see, or placing any object which one can see. This must be
done with the deliberate intention of wounding the religious feelings of that person. The law
permits healthy discussions about religious matters.

But in the guise to such discussions, deliberate intention to wound the religious feelings of others
cannot be allowed. The section widens its ambit by including utterances or making of sounds or
gestures or placing of objects in such circumstances as have been stated in the provision.
It is important to note that knowledge of any kind has been given no importance whatsoever
under this section, and in all cases the requisite deliberate intention on the part of the accused has
to be established. An intention is deliberate when it is not conceived on sudden impulse but is
pre-meditated.6

Slaughtering a bullock in the open despite protests by the Hindus, killing a cow for a wedding
feast, and sacrificing a cow during ‘Bakrid’ and carrying its flesh openly within the sight of
Hindus, have been held punishable under this section. The Gujarat High Court has held that
writing an inflammatory article under the captain ‘Why Acharya Rajneesh leaves Pune’ in a
weekly ‘Asspass’ is not punishable under section 298 of the Code as the act does not fall within
the language of the section.

Throwing a shoe in a place where Hindus were about to start eating but they went away without
touching the food was held to be not punishable under this section. Parading a cow with garlands
openly, and then sacrificing the same and carrying the carcass openly on a cot with horns and
legs protruding, is punishable under this section as the required deliberate intention can easily be
inferred from the act itself.

The offence under this section is non-cognizable, bailable and compoundable, and is triable by
any magistrate.

Recent cases related to section 295A

Kiku Sharda matter (2016):

Actor Kiku Sharda was recently arrested for mimicking Dera Sacha Sauda chief Gurmeet Ram
Rahim Singh on his show under section 295A of the Indian Penal Code. In Kiku Sharda matter,
he did an act which outraged the feelings of the followers of Dera Sachha Sauda Chief. Though

6
Article shared by pinki sarkar
he said his intention was not to hurt the religious feelings of any class but just to entertain
people.

Girl arrested for questioning total shutdown on Bal Thackeray’s funeral (2012):

In year 2012, a girl posted on her facebook wall against the shutdown in the city on Bal
Thackeray’s funeral and some other girl signed it. The duo was booked under section 295A and
66A of the Information Technology Act 2000 and was arrested subsequently. This case created a
lot of hue & cry and led to the amendment in Section 66A of the Information Technology Act
2000.

CONCLUSION
Section 295 of the IPC deals with injuring or defiling a place of worship with the intention to
insult. This section too places a premium on intention as an ingredient. However, the intention to
insult must also be accompanied by an injury. The injury, on the other hand, need not be physical
damage. The section also includes objects that are held sacred. Regarding speech, that may be
termed 'defilement', the Courts have exempted narrations of acts of defilement, whereas
commentary constituting 'defilement' has been punished.

Section 295A of the IPC deals with deliberate and malicious acts to outrage religious sentiments.
The Courts have placed a high threshold for determining whether an act constitutes an offence
under this provision. This is to ensure that the critique in good faith to bring about social reform
is not punished. Under this provision, truth is not a valid defence if all the other ingredients are
proved – primarily the deliberate and malicious intention. The report however argued that
“Section 295A is a disproportionate measure since forfeiture and other means of prior censorship
are available to the government. The threat of arrest and conviction in this context is not
necessary to preserve public order, and it does create a great risk of chilling freedom of
expression.”

Section 298 of the IPC deals with uttering words with an intention to wound a person. This
section places a lower threshold than 295A regarding proving the offence. However, the onus is
on the State to prove that the accused had a deliberate intention. Unlike section 295A, which
applies to a class of people being insulted, section 298 applies to an individual.
Summing up, the findings regarding the criminal law regarding hate speech have shown that the
laws tend to be abused for more than their intended purpose. The judiciary, in interpreting the
IPC provisions, has tended to place a premium on proving intention. Truth is not always treated
as a valid defence – particularly, when the effect of the speech or publication can affect public
tranquillity, even though violence does not occur. The law is silent on speech and publications
causing ill-will on the basis of gender. The Courts, on their part, have upheld these IPC
provisions under the reasonable restrictions contained in Article 19(2).