KEYWORDS:- RELIGION – FREEDOM- CONSTITUTION
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.
Provisions make it clear that the rights of the ‘denominational religious institutions’ are to be preserved and protected from any invasion by the State as guaranteed under Article 26 of the Constitution-Undoubtedly, the object and purpose of enacting Article 26 of the Constitution is to protect the rights conferred therein on a `religious denomination` or a section thereof. However, the rights conferred under Article 26 are subject to public order, morality and health and not subject to any other provision of Part III of the Constitution as the limitation has been prescribed by the law makers by virtue of Article 25 of the Constitution. The term ‘religious denomination’ means collection of individuals having a system of belief, a common organisation; and designation of a distinct name. The right to administration of property by a ‘religious denomination’ would stand on a different footing altogether from the right to maintain its own affairs in matters of religion. (Vide: Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj etc.etc. v. The State of Gujarat & Ors., AIR 1974 SC 2098; T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors., AIR 2003 SC 355; and Nallor Marthandam Vellalar & Ors. v. Commissioner, Hindu Religious and Charitable Endowments & Ors., AIR 2003 SC 4225).The Constitution Bench of this Court in S. Azeez Basha & Anr. v. Union of India, AIR 1968 SC 662, while dealing with the rights of minority to establish educational institutions, also dealt with the provisions of Article 26 of the Constitution and observed that the words “establish and maintain” contained in Article 26 (a) must be read conjunctively. A ‘religious denomination’ can only claim to maintain that institution which has been established by it. The right to maintain institutions would necessarily include the right to administer them. The right under Article 26(a) of the Constitution will only arise where the institution is established by a ‘religious denomination’ and only in that event, it can claim to maintain it. While dealing with the issue of Aligarh Muslim University, this Court rejected the claim of Muslim community of the right to administer on the ground that it had not been established by the Muslim community and, therefore, they did not have a right to maintain the university within the meaning of Article 26(a) of the Constitution . In Khajamian Wakf Estates etc. v. State of Madras etc., AIR 1971 SC 161, the Constitution Bench of this Court held that the religious denomination can own, acquire properties and administer them in accordance with law. In case they lose the property or alienate the same, the right to administer automatically lapses for the reason that property ceases to be their property. Article 26(d) of the Constitution protects the rights of ‘religious denomination’ to establish and administer the properties as clauses (c) and (d) guarantee a fundamental right to any religious denomination to own, acquire, establish and maintain such properties.The Constitution Bench of this Court in Shirur Mutt (Supra) categorically held that a law which takes away the right to administer the religious denomination altogether and vests it in any other authority would amount to a violation of right guaranteed in clause (d) of Article 26 of the Constitution. Therefore, the law could not divest the administration of religious institution or endowment. However, the State may have a general right to regulate the right of administration of a religious or charitable institution or endowment and by such a law, State may also choose to impose such restrictions whereof as are felt most acute and provide a remedy therefore. (See also: Ratilal Panachand Gandhi & Ors. v. State of Bombay & Ors., AIR 1954 SC 388; and Pannalal Bansilal Pitti & Ors. v. State of A.P. & Anr., AIR 1996 SC 1023) Dr. Subramanian Swamy Versus State of Tamil Nadu & Ors.
Supreme Court in Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi and Others vs. State of U.P. and others (1997) 4 SCC 606. While taking note of the aim of the constitution to establish an egalitarian social order prescribing any discrimination on grounds of religion, race, caste, sect or sex alone by Articles 15 to 17 in particular, it was once again reiterated as hereunder :
“28. The religious freedom guaranteed by Articles 25 and 26, therefore, is intended to be a guide to a community life and ordain every religion to act according to its cultural and social demands to establish an egalitarian social order. Articles 25 and 26, therefore, strike a balance between the rigidity of right to religious belief and faith and their intrinsic restrictions in matters of religion, religious beliefs and religious practices and guaranteed freedom of conscience to commune with his Cosmos/Creator and realize his spiritual self. Sometimes, practices religious or secular are inextricably mixed up. This is more particularly so in regard to Hindu religion because under the provisions of the ancient Smriti human actions from birth to death and most of the individual actions from day-to-day are regarded as religious in character in one facet or the other. They sometimes claim the religious system or sanctuary and seek the cloak of constitutional protection guaranteed by Articles 25 and 26. One hinges upon constitutional religious model and another diametrically more on traditional point of view. The legitimacy of the true categories is required to be adjudged strictly within the parameters of the right of the individual and the legitimacy of the State for social progress, well-being and reforms, social intensification and national unity. Law is a tool of social engineering and an instrument of social change evolved by a gradual and continuous process. As Benjamin Cardozo has put it in his Judicial Process, life is not logic but experience. History and customs, utility and the accepted standards of right conduct are the forms which singly or in combination all be the progress of law. Which of these forces shall dominate in any case depends largely upon the comparative importance or value of the social interest that will be, thereby, impaired. There shall be symmetrical development with history or custom when history or custom has been the motive force or the chief one in giving shape to the existing rules and with logic or PHILOSOPHY when the motive power has been theirs. One must get the knowledge just as the legislature gets it from experience and study and reflection in proof from life itself. All secular activities which may be associated with religion but which do not relate or constitute an essential part of it may be amenable to State regulations but what constitutes the essential part of religion may be ascertained primarily from the doctrines of that religion itself according to its tenets, historical background and change in evolved process etc. The concept of essentiality is not itself a determinative factor. It is one of the circumstances to be considered in adjudging whether the particular matters of religion or religious practices or belief are an integral part of the religion. It must be decided whether the practices of matters are considered integral by the community itself. Though not conclusive, this is also one of the facets to be noticed. The practice in question is religious in character and whether it could be regarded as an integral and essential part of the religion and if the court finds upon evidence adduced before it that it is an integral or essential part of the religion, Article 25 accords protection to it. Though the performance of certain duties is part of religion and the person performing the duties is also part of the religion or religious faith or matters of religion, it is required to be carefully examined and considered to decide whether it is a matter of religion or a secular management by the State. Whether the traditional practices are matters of religion or integral and essential part of the religion and religious practice protected by Articles 25 and 26 is the question. And whether hereditary archaka is an essential and integral part of the Hindu religion is the crucial question.