ARTICLES 26, 27 AND 28
Does the trio of Articles 26, 27 and 28 really symbolize totalitarian values of secularism?
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
Apparently Article 26 is complementary to Article 25. Article 25 speaks of ‘every person’ while Article 26 refers to ‘religious denomination’. Article 25 is subject to other provisions of Part III of the constitution, while Article 26 is not so strictu sensu bounded.
- Analogous provisions in other Constitutions.
This Article corresponds to (i) to First Amendment to the Constitution of the United States; and (ii) Article 44(2) of the Constitution of Eire 1973.
- Meaning of expression-denomination. The word “denomination” is defined in the Oxford Dictionary to mean a collection of individuals, classes together under the same name; a religious sect or body having a common faith and organization and designated by a distinctive name”.
- Religious denomination. A “religious denomination” as used in Art.26 contemplates not merely a religious denomination but also a section thereof, the Math or the spiritual fraternity represented by it can legitimately come within the purview of this Article. The words “religious denomination” under Art. 26 must take their colour from the word ‘religion’ and if this be so, the expression “religious denomination” must also specify three conditions, namely, it must be (1) a collection of religious faith, a system of beliefs which is conducive to the spiritual well-being, i.e. common faith; (2) common organization; (3) a designation by a distinctive name.
- Establish and maintain. The words “establish and maintain” in cl.(a) of Art.26 must be read conjunctively and it is only those institutions which a religious denomination establishes and which it can claim to maintain. The right to maintain institutions for religious and charitable purposes would include the right to administer them.
- Test Question whether particular religious or charitable institution is or is not a religious denomination or any section thereof within the meaning of Art.26 is a question of fact or in any every a mixed question of law and fact which can be more satisfactorily and effectively adjudicated upon in a competent Civil Court.
- Matters of religion. Matters of religion in Art.26(b) include the right to exclude persons who are not entitled to participate in the worship according to the tenants of the institution.
Article 26 of our Constitution is subject only to three limiting factors: public order, morality and health.
An overview of judicial dicta is relevant in gaining grasp of this substantive provision forming part of the religious code in the spectrum of constitutional rights.
In a recent judgement John Vallatom Vs. UOI, (2003) 6 SCC 611, 627 relying on Sarla Mudgal Vs UOI (1995) 3 SCC 635 ,Hon’ble Bench held as under ;
“Marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Arts. 25 and 26. Any legislation which brings such matters of secular character within the ambit of Arts. 25 and 26 is a suspect legislation, although it is doubtful whether the American doctrine of suspect legislation is followed in India.”
In another recent case,Commissioner of Police Vs. Acharya Jagdishwarananda Avadhuta, (2004) 12 SCC 770, 799 it was observed as under;
“Public Order.- “Public order” has a large connotation than “law and order.” Contravention of law to affect ‘public order’ must affect the community or the public at large. A mere disturbance of law and order leading to disorder is not one which affects “public order”.
The limiting factors were emphatically restated in Devaraja Shenoy Vs. State of Madras, AIR 1953 Mad. 149.
“Art.26: Rights of religious denomination-1. The article guarantees certain rights to every religious denomination, subject to ‘public order, morality and health’, and the rights are capable of being enforced by or on behalf of a denomination.”
Narendra Prasadji Anand Prasadji Maharaj, Acharya Maharaj Shri Vs. State of Gujarat, AIR 1974 SC 2098 Azzez Basha, S. Vs. UOI, AIR 1968 SC 662 (674; Khajamian Estates Vs. State of Madras, AIR 1971 SC 161 , Ismail Faruqui, M. (Dr.) Vs. UOI, AIR 1995 SC 605 are the relevant judicial pronouncements to the following effect;
“Art.26: Rights of religious denomination-2. This article does not take away the right of the State to acquire property belonging to a religious denomination.”
Nani Palkhivala once aptly opined that: “God is not interested in religious labels but in the way we conduct ourselves. God sees us as we are rather than by the labels which we give to ourselves”.
There cannot be a better choice of words to emphasize the justification of exceptional circumstances enumerated in article 26 to ensure inter-denominational bon homie for better life inspired by a spirit of fraternity.
In this sequel of religious code qua constitutional rights, Article 27 and Article28 also deserve to be read and understood in a perspective of affirmative
secularism which permeates the socio-political values enshrined in our constitution.
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 religious denomination
Analogous Constitutions. This Article corresponds to (i) the First Amendment to the Constitution of the United States, and (ii) Article 22 of the Constitution of Japan, 1946.
Apparently this article prohibits taxation for purposes of religion .Bare reading of the text shows that the Article 27 forbids the specific appropriation of the proceeds of any tax in payment of expenses for the promotion or maintenance of any particular religious denomination. The reason underlying this provision is obvious. Ours being a secular State and there being freedom of religion guaranteed by the Constitution, both to individuals and to groups, it is against the policy of the Constitution to pay out of public funds any money for the promotion or maintenance of any particular religion or religious denomination. However, Art.290A stands as an exception in the Constitution itself.The aforesaid interpretation is supported by Commr. H.R.E. Vs. Lakshmindra Thiratha Swamiar, AIR 1954 SC 282; Jagannath Ramanuj Das Vs. State of Orissa, AIR 1954 SC 400.
While focusing on the letter and spirit of this Article, Hon’ble Supreme Court held that the ‘Archakas’ (Pujaris) and other office-bearers cannot be extended such benefits as are granted to the government servants.(Sri Divi Kodandarama Saram Vs. State of A.P., (1997) 6 SCC 189)
A deeper understanding of this article shows that the levy of a ‘fee’ for the defraying of expenses of the State for regulating the secular administration of religious institutions wherever they exist, is not prohibited. Article 27 is not attracted to a case where a question of favouring any particular religion or religious denomination does not exist.This view is fortified by reference to Commr. H.R.E. Vs. Lakshmindra Thiratha Swamiar, AIR 1954 SC 282; Jagannath Ramanuj Das Vs. State of Orissa, AIR 1954 SC 400; E.R.J. Swami Vs. State of T.N., AIR 1972 SC 1586.
Article 27 does not prohibit taxation for the following purposes-
- For the reclamation of tanks which are used by the public, even though their ownership may be vested in a deity. Bira Kishore Mohanty Vs. State of Orissa, AIR 1975 Or. 8 (ii) For reconstruction of religious and educational institutions damaged by a communal riot, even though such institutions belong to particular communities. Raghunath K. Vs. State of Kerala, AIR 1974 Ker. 48.
A glance at the text of Article 28 clarifies the constitutional scheme qua religious affairs in the length and breadth of multicultural India.
Finally a glance at Article 28 completes the sequence in the constitutional scheme.
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
(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.
Analogous Constitutions. This Article corresponds to (i) the First Amendment to the Constitution of the United States; (ii) Article 44(2) of the Constitution of Eire 1937; (iii) Article 20 of the Constitution of Japan; and (iv) Article 52 of the Constitution of the U.S.S.R. 1977.
This Article lucidly and strongly forbids religious education in contradistinction with moral education. The Article does not operate to cause complete distancing of the educational institutions from all or any denominational doctrines. Nambudripad Kidangazhi Manakkal Narayanan Vs. State of Madras, AIR 1954 Mad. 385.
Courts have consistently held that the academic study of the teaching and philosophy of any great saints of India (e.g., Guru Nanak or Mahabir) and its impact on the Indian and world civilizations cannot be considered as ‘religious’ instruction. [DAV College Vs. State of Punjab (II), AIR 1971 SC 1737 .
We need to dwell on the erudite views of K.M. Munshi, which read as under;
“Religion must be restricted to spheres which legitimately appertain to religion and the rest of the life must be regulated, unified and modified in such a manner that we may evolve, as early as possible, a strong and consolidated nation. Our first problem and the most important problem is to produce national unity in this country. We think we have got national unity. But there are many factors and important factors, which still offer serious dangers for our national consolidation and it is necessary that the whole of our life, so far as it is restricted to secular spheres, must be unified in such a way that as early as possible, we may be able to say ‘well we are not merely a nation because we say so, but also in effect, by the way we live by our personal law, we are strong and consolidated nation”.
It would not be an erroneous notion in our multicultural society to say: Secularism is neither a ‘phantom concept’ nor a ‘vacuous concept’. It is a constitutionally guaranteed value.
Professor Goethenisem of Berlin University in Encyclopedia of social sciences (1939 Edition) explains secularism as “the attempt to establish autonomous sphere of knowledge purged of supernatural, fideistic presuppositions”.
He further ponders over secularism in a philosophical perspective and states: ‘(Secularism) is a revolt against theological and eventually against metaphysical absolutes and universals.’
The riverine flow of our Constitutional precepts over ‘spring-autumn’ seasonal cycles over past seven decades of our constitutional democracy, by expanding the verdant oasis of fraternity, on the parched sands of totalitarian values of coercive paradigms of secularism, vindicates the truth of Trevor ling’s expression: ‘Flat alluvial expansion of secularism.’ Rather the alluvial soil of secularism in India has proved to be rich and fertile for a meaningful and vibrant co-existence of multiple denominations of religions and cultures under piety of our national flag.