Freedom of Religion, Minority Rights, and Constitutional Remedies notes — Unit 5

India is a secular state, but Indian secularism (Sarva Dharma Sambhava) is fundamentally different from Western secularism. In the West (e.g., France or USA), there is a strict 'wall of separation' between the Church and the State. In India, the State does not have an official religion, but it can actively intervene in religious affairs to enact social reforms (like banning untouchability or Triple Talaq).

⇒1.1 Freedom of Conscience and Free Profession [Article 25]

Article 25 guarantees to all persons (citizens and foreigners) the freedom of conscience and the right to freely profess, practice, and propagate religion.

• Conscience: Absolute inner freedom to mold one's relation with God.
• Profess: Declaration of one's religious beliefs freely and openly.
• Practice: Performing religious worship, rituals, and ceremonies.
• Propagate: Transmission and dissemination of one's religious beliefs to others.

Article 25 protects the 'practice' of religion, but not every single act done in the name of religion gets constitutional protection. The Supreme Court evolved the Essential Religious Practices Test in the Shirur Mutt Case (1954).

• The Test: To claim protection under Article 25, the religious practice must be an essential and integral part of that religion. If it is purely a secular, commercial, or superstitious practice, the State can regulate it.
• Example 1 (Ismail Faruqui v. UOI): The Supreme Court held that offering prayers (Namaz) in a Mosque is not an essential feature of Islam; prayers can be offered anywhere. Therefore, the State can acquire a mosque for public purposes.
• Example 2 (Sabarimala Case - Indian Young Lawyers Association v. State of Kerala): The Supreme Court struck down the custom of banning women (aged 10-50) from entering the Sabarimala temple. The Court held that this ban was not an 'essential religious practice' of Hinduism, and it severely violated the fundamental right to equality (Article 14) and dignity of women.

⇒2.1 Restrictions on Article 25

Freedom of religion is subject to three strict limitations:

⇒3.1 Freedom to Manage Religious Affairs [Article 26]

While Article 25 protects individual rights, Article 26 protects the rights of a Religious Denomination (e.g., Ramakrishna Mission, Dawoodi Bohras). Every religious denomination has the right to:

• Establish and maintain institutions for religious and charitable purposes.
• Manage its own affairs in matters of religion.
• Own and acquire movable and immovable property.
• Administer such property in accordance with law.

⇒3.2 Protection of Minorities [Articles 29 and 30]

The Constitution protects both religious and linguistic minorities.

• Article 29: Any section of citizens having a distinct language, script, or culture has the absolute right to conserve it. No citizen shall be denied admission into any State-maintained educational institution solely on the grounds of religion, race, caste, or language.
• Article 30: All minorities (whether based on religion or language) shall have the right to establish and administer educational institutions of their choice. The State cannot discriminate against them while granting aid.

A right is useless without a remedy. If the State violates a fundamental right, the citizen must have a way to enforce it. Article 32 provides this guaranteed remedy.

Under Article 32, a citizen has the fundamental right to directly move the Supreme Court of India by appropriate proceedings for the enforcement of the rights conferred in Part III. (Note: The High Courts have a concurrent power under Article 226, but moving the High Court is a legal right, whereas moving the Supreme Court under Art 32 is a fundamental right in itself).

⇒4.1 The Prerogative Writs

To enforce these rights, the Supreme Court is empowered to issue directions, orders, or 'Writs'. A writ is a formal written command issued by the Court. There are 5 types of writs, borrowed from English law:

⇒1. Habeas Corpus

Literal Meaning: 'To have the body of'.

• It is an order issued by the court to a person who has detained another person, to produce the body of the latter before it.
• The court examines the cause and legality of detention. If the detention is found to be illegal, the person is immediately set free.
• It is the most powerful bulwark against arbitrary arrest (protects Article 21).
• It can be issued against both public authorities and private individuals.

⇒2. Mandamus

Literal Meaning: 'We Command'.

• It is a command issued by the court to a public official, public body, corporation, or lower court, asking them to perform their official duties that they have failed or refused to perform.
• It cannot be issued against a private individual, the President of India, or a State Governor.
• Example: If a licensing authority refuses to issue a license despite the applicant fulfilling all legal criteria, the court can issue Mandamus compelling them to do so.

⇒3. Prohibition

Literal Meaning: 'To forbid'.

• Issued by a higher court to a lower court or tribunal to prevent them from exceeding their jurisdiction or usurping a jurisdiction they do not possess.
• It is issued during the pendency of a proceeding, before a final order is made. It tells the lower court: 'Stop, you don't have the power to hear this case.'
• It can only be issued against judicial and quasi-judicial authorities, not against administrative authorities or private bodies.

⇒4. Certiorari

Literal Meaning: 'To be certified' or 'To be informed'.

• Issued by a higher court to a lower court or tribunal either to transfer a case pending with them to itself, or to squash (cancel) their final order.
• While Prohibition is preventive (issued before the order is made), Certiorari is both preventive and curative (issued after the order is made).
• It is issued on grounds of excess of jurisdiction, lack of jurisdiction, or error of law apparent on the face of the record.

⇒5. Quo Warranto

Literal Meaning: 'By what authority or warrant?'

• Issued by the court to inquire into the legality of the claim of a person to a public office.
• It prevents illegal usurpation of public office by a person.
• Example: If a person lacking the statutory qualifications is appointed as a University Vice-Chancellor, the court can issue Quo Warranto asking 'by what authority do you hold this office?' and remove him.

Traditionally, to file a case under Article 32, the rule of Locus Standi applied. This meant that only the person whose rights were directly violated could approach the court. If a poor bonded laborer's rights were violated, only he could file the case (which was practically impossible due to poverty and illiteracy).

⇒7.1 The Relaxation of Locus Standi

In the late 1970s and 1980s, Justice P.N. Bhagwati and Justice V.R. Krishna Iyer revolutionized the Indian legal system by introducing Public Interest Litigation (PIL).

• The Supreme Court relaxed the strict rule of locus standi.
• Now, any public-spirited citizen or NGO can approach the court on behalf of the poor, oppressed, or disadvantaged classes whose fundamental rights are being violated.
• Even a simple postcard or letter addressed to the Chief Justice can be treated as a writ petition (Epistolary Jurisdiction).
• This led to massive social reforms, including the rescue of undertrial prisoners, cleaning of the Ganga, and enforcement of labor laws.

⇒Summary of Key Takeaways

• Article 25: Grants freedom of religion but subject to public order, morality, and health. The right to propagate does NOT include the right to forcibly convert (Stanislaus).
• Essential Religious Practices Test: Only core religious practices are protected (Shirur Mutt, Sabarimala).
• Articles 29 & 30: Protect the right of minorities to conserve their culture and establish educational institutions, though subject to reasonable state regulation (TMA Pai).
• Article 32: The soul of the Constitution. Grants the right to move the Supreme Court directly for fundamental right violations through 5 specific writs.
• Writs: Habeas Corpus (illegal detention), Mandamus (compel duty), Prohibition (prevent lower court), Certiorari (squash lower court order), Quo Warranto (usurpation of office).

⇒University Exam Tips for this Unit

• Article 32 Essay: If asked why it is the soul of the constitution, start with Dr. Ambedkar's quote. Then clearly differentiate the 5 writs. Make sure to highlight the difference between Prohibition (preventive) and Certiorari (curative).
• Secularism Question: Examiners frequently ask if secularism in India means being anti-religion. Explain that Indian secularism is positive (Sarva Dharma Sambhava) and allows state intervention for social reform (like banning untouchability), unlike the rigid Western model.
• PIL: Often asked as a short note. Always mention the relaxation of Locus Standi and the role of Justice P.N. Bhagwati.