Background-:

a) In recent past, Bombay HC held that, women can enter any part of Shani temple.

b) Currently, a three member bench of SC is considering an issue of constitutional validity of “Ban on entry of women into a temple” in a case from kerala. Apparently, from the discussion that took place in the court room, it is more likely that, the bench will rule in favour of allowing entry of women into temple.

c) The approximately common issue can be summarized as follows

  1. Can restricting entry of a women into a temple is discriminatory violating the fundamental rights guaranteed under constitution ?
  1. More specific question can be whether banning entry of women into a specific temple can be a religious right ?
  1. How to reconcile the religious rights guaranteed under article 25 and 26 read with article 14 to 16 ?

My personal view

a) At the outset, I do not want to claim that, I have an answer to the question as to whether women be allowed to enter the temple.

b) But at the same time, I am not convinced that, banning entry to women in temple is wrong.

c) To put it differently, I am of the view that, allowing women an unfettered entry into temple [based on article 15] may abrogate the religious rights of a person in terms of article 25 and 26.

d) Non-discrimination does not mean allowing every person everywhere.

e) These views can be of a person who follows article 15, equality before law or ha utmost respect for women and at the same for region as well.

f) Religion vis-à-vis Gender are not mutually exclusive, at least not the enemies of each other.

g) Religion is a matter comprising more of faith, thoughts and beliefs rather than logic.

h) The task of bifurcation in deciding which of beliefs and practices can be categorised as essential beliefs and practices which must be protected and those which should not be protected is a delicate task.

objective of this article

  1. to bring to notice, various discussion of Supreme Court itself on the matter of religion.
  1. to create awareness on this matter.

Articles of constitution of India relevant for this discussion.

1. Following are the relevant articles and brief about it. Full text of the articles is re-produced at the end.

Article 13-: Laws inconsistent with or in derogation of the fundamental rights

All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part[regarding fundamental rights], shall, to the extent of such inconsistency, be void.

Article 14-: Equality before law

  1. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Article 15-: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—

Article 16-: Equality of opportunity in matters of public employment

16. (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

Article 25 & 26-: Right to Freedom of Religion

25. (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.

Recently i.e. on DECEMBER 16, 2015 Supreme Court in the case of ADI SAIVA SIVACHARIYARGAL NALA SANGAM & ORS. V THE GOVERNMENT OF TAMILNADU & ANR. WP (CIVIL) NO. 354 of 2006 [The Case] has occasion to decide a related question.

Facts / question in hand

Para 4 of the case

4. The necessary facts may now be noticed. In order to amend and consolidate the law relating to administration and governance of Hindu religious and charitable institutions in the State of Tamil Nadu, the State Legislature has enacted the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as ‘the Tamil Nadu Act’). A passing reference may be made, at this stage, to Section 55 of the Tamil Nadu Act which provided that in case where the office holders or servants of a religious institution are required to be filled up on the principle of hereditary succession the person next in line of succession is entitled to succeed. There were some exceptions to the above rule i.e. where the person next in line is a minor or suffers from some incapacity. The aforesaid provision (Section 55) was amended alongwith other related provisions by the Amendment Act of 1970 which came into force on January 8, 1971.

It also requires that, ““Any person who is a Hindu and possessing the requisite qualification and training can be appointed as a Archaka in Hindu temples

Conclusion

Para 42 to 44 of the case

42. The difficulty lies not in understanding or restating the constitutional values. There is not an iota of doubt on what they are. But to determine whether a claim of state action in furtherance thereof overrides the constitutional guarantees under Article 25 and 26 may often involve what has already been referred to as a delicate and unenviable task of identifying essential religious beliefs and practices, sans which the religion itself does not survive. It is in the performance of this task that the absence of any exclusive ecclesiastical jurisdiction of this Court, if not other shortcomings and adequacies, that can be felt. Moreover, there is some amount of uncertainty with regard to the prescription contained in the Agamas. Coupled with the above is the lack of easy availability of established works and the declining numbers of acknowledged and undisputed scholars on the subject. In such a situation one is reminded of the observations, if not the caution note struck by Mukherjea, J. in Shirur Mutt (supra) with regard to complete autonomy of a denomination to decide as to what constitutes an essential religious practice, a view that has also been subsequently echoed by this Court though as a “minority view”. But we must hasten to clarify that no such view of the Court can be understood to an indication of any bar to judicial determination of the issue as and when it arises. Any contrary opinion would go rise to large scale conflicts of claims and usages as to what is an essential religious practice with no acceptable or adequate forum for resolution. That apart the “complete autonomy” contemplated in Shirur Mutt (supra) and the meaning of “outside authority” must not be torn out of the context in which the views, already extracted, came to be recorded (page 1028). The exclusion of all “outside authorities” from deciding what is an essential religion practice must be viewed in the context of the limited role of the State in matters relating to religious freedom as envisaged by Articles 25 and 26 itself and not of the Courts as the arbiter of Constitutional rights and principles.

43. What then is the eventual result? The answer defies a straight forward resolution and it is the considered view of the court that the validity or otherwise of the impugned G.O. would depend on the facts of each case of appointment. What is found and held to be prescribed by one particular or a set of Agamas for a solitary or a group of temples, as may be, would be determinative of the issue. In this regard it will be necessary to re-emphasise what has been already stated with regard to the purport and effect of Article 16(5) of the Constitution, namely, that the exclusion of some and inclusion of a particular segment or denomination for appointment as Archakas would not violate Article 14 so long such inclusion/exclusion is not based on the criteria of caste, birth or any other constitutionally unacceptable parameter. So long as the prescription(s) under a particular Agama or Agamas is not contrary to any constitutional mandate as discussed above, the impugned G.O. dated 23.05.2006 by its blanket fiat to the effect that, “Any person who is a Hindu and possessing the requisite qualification and training can be appointed as a Archaka in Hindu temples” has the potential of falling foul of the dictum laid down in Seshammal (supra). A determination of the contours of a claimed custom or usage would be imperative and it is in that light that the validity of the impugned G.O. dated 23.05.2006 will have to be decided in each case of appointment of Archakas whenever and wherever the issue is raised. The necessity of seeking specific judicial verdicts in the future is inevitable and unavoidable; the contours of the present case and the issues arising being what has been discussed.

44. Consequently and in the light of the aforesaid discussion, we dispose of all the writ petitions in terms of our findings, observations and directions above reiterating that as held in Seshammal (supra) appointments of Archakas will have to be made in accordance with the Agamas, subject to their due identification as well as their conformity with the Constitutional mandates and principles as discussed above.

The bench Heavily relied upon the judgement in the case of Seshammal and Others, Etc. Vs. State of Tamil Nadu (1972) 2 SCC 11 the Constitution Bench.

What is freedom of religion & what is role of judiciary in this matter?

Para 20 and 36 of the case

20. Thereafter, the Constitution Bench by referring to several earlier pronouncements of this Court specifically mentioned in para 13 of the Report identified the main principles underlying the provisions of Article 25 and 26 of the Constitution in the following manner.

“The first is that the protection of these articles is not limited to matters of doctrine or belief they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion.

The second is that what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion.”

36. That the freedom of religion under Articles 25 and 26 of the Constitution is not only confined to beliefs but extends to religious practices also would hardly require reiteration. Right of belief and practice is guaranteed by Article 25 subject to public order, morality and health and other provisions of Part- III of the Constitution. Sub-Article (2) is an exception and makes the right guaranteed by Sub-article (1) subject to any existing law or to such law as may be enacted to, inter alia, provide for social welfare and reforms or throwing or proposing to throw open Hindu religious institutions of a public character to all classes and sections of Hindus. Article 26(b) on the other hand guarantees to every religious denomination or section full freedom to manage its own affairs insofar as matters of religion are concerned, subject, once again, to public order, morality and health and as held by this Court subject to such laws as may be made under Article 25(2)(b). The rights guaranteed by Articles 25 and 26, therefore, are circumscribed and are to be enjoyed within constitutionally permissible parameters.

Often occasions will arise when it may become necessary to determine whether a belief or a practice claimed and asserted is a fundamental part of the religious practice of a group or denomination making such a claim before embarking upon the required adjudication. A decision on such claims becomes the duty of the Constitutional Court. It is neither an easy nor an enviable task that the courts are called to perform. Performance of such tasks is not enjoined in the court by virtue of any ecclesiastical jurisdiction conferred on it but in view of its role as the Constitutional arbiter. Any apprehension that the determination by the court of an essential religious practice itself negatives the freedoms guaranteed by Articles 25 and 26 will have to be dispelled on the touchstone of constitutional necessity. Without such a determination there can be no effective adjudication whether the claimed right it is in conformity with public order, morality and health and in accord with the undisputable and unquestionable notions of social welfare and reforms. A just balance can always be made by holding that the exercise of judicial power to determine essential religious practices, though always available being an inherent power to protect the guarantees under Articles 25 and 26, the exercise thereof must always be restricted and restrained.

Precedence in terms of removing discrimination between caste

Para 26 of the case

26. The facts confronting the Court in Adithayan (supra) may now be noticed. The challenge therein was by a Namboodri Brahmin to the appointment of a non-Namboodri Brahmin who was otherwise well qualified to be appointed as a priest in the temple in question. The challenge was sought to be based on the ground that it has been a long standing practice and usage in the temple that its priests are appointed exclusively from Namboodri Brahmins and any departure therefrom is in violation of the rights of Namboodri Brahmins under Article 25 and 26 of the Constitution. Upon a consideration of the various earlier decisions of this Court specifically referred to in Adithayan (supra), details of which need not again be noticed herein (such details are being separately noticed later, though in a different context) including the decision in Seshammal (supra) it was held that rights claimed solely on the basis of caste cannot enjoy the protection of Article 25 and 26 and no earlier decision of this Court including Seshammal (supra) would support the contention that even duly qualified persons can be barred from performing Poojas on the sole ground that such a person is not a Brahmin by birth or pedigree. After expounding the law in the above manner, it was held in Adithayan (supra) that even proof of any such practice since the pre-constitutional days (which in any case was not forthcoming) cannot sustain such a claim as the same would be in derogation of constitutional values and opposed to public policy or social decency. We do not see how the above view of this Court in any way strikes a discordant note with the views expressed in any earlier decision including Seshammal(supra).

The issues in Seshammal(supra) were entirely different and the discussions therein (para 12) proceeds on the basis that entry to the sanctum sanctorum for a particular denomination is without any reference to caste or social status. The reference to the opinion of Sri R. Parthasarathy Bhattacharya who has been referred to in the above para 12 of the report as an undisputed scholar on the subject was cited to show that apart from the followers of the 4 (four) traditions, so far as Vaishnava temples are concerned “…..none others, however high placed in society as Pontiffs or Acharyas, or even other Brahmins could touch the idols, do Pooja or enter the Garba Girha……..” Exclusion solely on the basis of caste was not an issue in Seshammal(supra) so as to understand the decision in Adithayan (supra) to be, in any way, a departure from what has been held in Seshammal (supra).

What is Hindu religion

Para 27 to 31 of the case

27. Before we go on to deliberate on the validity of the impugned G.O. dated 23.05.2006 it will be useful to try to understand what is Hinduism? A broad answer is to be found in the preface to this report but, perhaps, we should delve a little deeper into the issue. The subject has received an indepth consideration of the Country’s philosopher President Dr. S. Radhakrishnan in the celebrated work “ The Hindu way of Life”. The said work has been exhaustively considered in Sastri Yagnapurushadji and Others Vs. Muldas Bhudradas Vaishya and Another4 in the context of the question as to whether Swaminarayan sect is a religion distinguishable and separate from the Hindu religion and consequently the temples belonging to the said sect fell outside the scope of Section 3 of the Bombay Hindu Places of Public Worship (Entry Authorisation) Act, 1956. The aforesaid 4 1966(3) SCR 242 Section 3 of the Act inter alia provided that every temple to which the Act applied shall be open to the excluded classes for worship in the same manner and to the same extent as other Hindus in general. While the eventual decision of the Court which answered the question raised is in the negative, namely, that the sect in question was not a distinguishable and different religion, it is the very learned discourse that is to be found in the report with regard to the true tenets of Hinduism that would be of interest so far the present case is concerned. The following passages from the report are truly worthy of reproduction both for the purpose of recapitulation and illumination.

“…………….. ………….. ………… …………

When we think of the Hindu religion, we find it difficult, if not impossible, to define Hindu religion or even adequately describe it. Unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not worship any one God; it does not subscribe to any one dogma; it does not believe in any one philosophic concept; it does not follow any one set of religious rites or performances; in fact, it does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more.

…………….. ………….. ………… …………

The Hindu thinkers reckoned with the striking fact that the men and women dwelling in India belonged to different communities, worshipped different gods, and practiced different rites (Kurma Purana).(Ibid p.12.)

…………….. ………….. ………… …………

“It presents for our investigation a complex congeries of creeds and doctrines which in its gradual accumulation may be compared to the gathering together of the mighty volume of the Ganges, swollen by a continual influx of tributary rivers and rivulets, spreading itself over an ever-increasing area of country and finally resolving itself into an intricate Delta of tortuous steams and jungly marshes …….. The Hindu religion is a reflection of the composite character of the Hindus, who are not one people but many. It is based on the idea of universal receptivity. It has ever aimed at accommodating itself to circumstances, and has carried on the process of adaptation through more than three thousand years. It has first borne with and then, so to speak, swallowed, digested, and assimilated something from all creeds.” (“Religious Thought & Life in India” by Monier Williams, P. 57.)

The history of Indian thought emphatically brings out the fact that the development of Hindu religion has always been inspired by an endless quest of the mind for truth based on the consciousness that truth has many facets. Truth is one, but wise men describe if differently. The Indian mind has, consistently through the ages, been exercised over the problem of the nature of godhead the problem that faces the spirit at the end of life, and the interrelation between the individual and the universal soul. “If we can abstract from the variety of opinion”, says Dr. Radhakrishnan, “and observe the general spirit of Indian thought, we shall find that it has a disposition to interpret life and nature in the way of monistic idealism, though this tendency is so plastic, living and manifold that it takes many forms and expresses itself in even mutually hostile teachings”.(Ibid, p.32.) Though philosophic concepts and principles evolved by different Hindu thinkers and philosophers varied in many ways and even appeared to conflict with each other in some particulars, they all had reverence for the past and accepted the Vedas as the sole foundation of the Hindu philosophy. Naturally enough, it was realised by Hindu religion from the very beginning of its career that truth was many sided and different views contained different aspects of truth which no one could fully express.

Do the Hindus worship at their temples the same set or number of gods ? That is another question which can be asked in this connection; and the answer to this question again has to be in the negative. Indeed, there are certain sections of the Hindu community which do not believe in the worship of idols; and as regards those sections of the Hindu community which believe in the worship of idols their idols differ from community to community and it cannot be said that one definite idol or a definite number of idols are worshipped by all the Hindu in general. In the Hindu Pantheon the first goods that were worshipped in Vedic times were mainly Indra, Varuna, Vayu and Agni. Later, Brahma, Vishnu and Mahesh came to be worshipped. In course of time, Rama and Krishna secured a place of pride in the Hindu Pantheon, and gradually as different philosophic concepts held sway in different sects and in different sections of the Hindu community, a large number of gods were added, with the result that today, the Hindu Pantheon presents the spectacle of a very large number of gods who are worshipped by different sections of the Hindus.

The development of Hindu religion and philosophy shows that from time to time saints and religious reformers attempted to remove from the Hindu thought and practices elements of corruption and superstition and that led to the formation of different sects. Buddha stated Buddhism; Mahavir founded Jainism; Basava became the founder of Lingayat religion, Dnyaneshwar and Tukaram initiated the Varakari cult; Guru Nanak inspired Sikhism; Dayananda founded Arya Samaj, and Chaitanya began Bhakti cult; and as a result of the teachings of Ramakrishna and Vivekananda, Hindu religion flowered into its most attractive, progressive and dynamic form. If we study the teachings of these saints and religious reformers, we would notice an amount of divergence in their respective views; but underneath that divergence, there is a kind of subtle indescribable unity which keeps them within the sweep of the broad and progressive Hindu religion.

Tilak faced this complex and difficult problem of defining or at least describing adequately Hindu religion and he evolved a working formula which may be regarded as fairly adequate and satisfactory. Said Tilak :

“Acceptance of the Vedas with reverence; recognition of the fact that the means or ways to salvation are diverse and realisation of the truth that the number of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religion. This definition brings out succinctly the broad distinctive features of Hindu religion.

It is somewhat remarkable that this broad sweep of Hindu religion has been eloquently described by Toynbee. Says Toynbee : “When we pass from the plane of social practice to the plane of intellectual outlook, Hinduism too comes out well by comparison with the religions an ideologies of the South-West Asian group. In contrast to these Hinduism has the same outlook as the pre-Christian and pre-Muslim religions and philosophies of the Western half of the old world. Like them, Hinduism takes it for granted that there is more than one valid approach to truth and to salvation and that these different approaches are not only compatible with each other, but are complementary”.

28. The fact that reference to Hindus in the Constitution includes persons professing the Sikh, Jain and Buddhist religions and the statutory enactments like Hindu Marriage Act, Hindu Succession Act etc. also embraces Sikhs, Jains and Buddhists within the ambit of the said enactments is another significant fact that was highlighted and needs to be specially taken note of.

29. What is sought to be emphasized is that all the above would show the wide expanse of beliefs, thoughts and forms of worship that Hinduism encompasses without any divergence or friction within itself or amongst its adherents. It is in the backdrop of the above response to the question posed earlier “what is Hinduism”? that we have to proceed further in the matter.

30. Image worship is a predominant feature of Hindu religion. The origins of image worship is interesting and a learned discourse on the subject is available in a century old judgment of the Madras High Court in Gopala Mooppanar and Others Vs. Subramania Iyer and others5. In the said report the learned Judge (Sadasiva Aiyar, J.) on the basis of accepted texts and a study thereof had found that in the “first stage” of existence of mankind God was worshiped as immanent in the heart of everything and worship consisted solely in service to ones fellow creatures. In the second age, the spirit of universal brotherhood has lost its initial efficacy and notions of inferiority and superiority amongst men surfaced leading to a situation where the inferior man was asked to worship the superior man who was considered as a manifestation of God. Disputes arose about the relative superiority and inferiority which was resolved by the wise sages by introducing image worship to enable all men to worship God without squabbles about their relative superiorities. With passage of time there emerged Rules regulating worship in temples which came to be laid down in the treatises known as Agamas and the Thantras. Specifically in Gopala Moopanar (supra), it was noticed that the Agamas prescribed rules as regards “what caused pollution to a temple and as regards the ceremonies for removing pollution when caused.” In the said judgment it is further mentioned that, “There are, it is well known Thanthries in Malabar who are specialists in these matters of pollution. As the temple priests have got the special saivite initiation or dheeksha which entitles them to touch the inner most image, and as the touch of the persons who have got no such initiation, even though they be Brahmins, was supposed to pollute the image, even Brahmins other than the temple priest were in many temples not allowed to go into the garbhagraham. The Agamas also contain other prescriptions including who is entitled to worship from which portion of the temple. In one of the Agamas it is said (as freely translated) thus : “Saivite Brahmin priests are entitled to worship in the anthrala portion. Brahmins learned in the Vedas are entitled to worship in the arthamantapa, other Brahmins in the front Mantapa, Kings and Vaisyas in the dwaramantapa, initiated Sudras in the Bahir Mantapa” and so on.” The legal effect of the above prescriptions need not detain us and it is the portion underlined which is of particular importance as the discussions that follow would reveal.

31. The Ecclesiastical jurisprudence in India, sans any specific Ecclesiastical jurisdiction, revolves around the exposition of the constitutional guarantees under Articles 25 and 26 as made from time to time. The development of this branch of jurisprudence primarily arises out of claimed rights of religious groups and denominations to complete autonomy and the prerogative of exclusive determination of essential religious practices and principles on the bedrock of the constitutional guarantees under Articles 25 and 26 of the Constitution and the judicial understanding of the inter-play between Article 25(2)(b) and 26(b) of the Constitution in the context of such claims. In The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt6 (Shirur Mutt) while dealing with the issue of autonomy of a religious denomination to determine what rights and ceremonies are essential according to the tenets of its religion it has been stated that – “Under article 26(b), therefore a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.” – (Page 1028)

Kerala situation

a) Currently, a three member bench of SC, headed by Justice Dipak Misra is considering an issue of constitutional validity of “Ban on entry of women into a temple”

b) Today there is a practice of women between 10 and 50 years of age being banned from entering and offering worship at Sabarimala.

c) The hearing will continue on 22-April-2016. Following are the observations of the justices in open court as reported by legallyindia.com and / or livelaw.in

Something about the deity / religious background.

a) The deity at Sabarimala was celibate and therefore should not see women.

b) The bar on entry of women is in place to maintain purity of Lord Ayyappa deity.

An interesting question by Justice Kurian Joseph

a) Can you force deity who does not want to see women (of menstruating age), to ‘see’ women?

Expectation

Hope the larger bench dwelling upon the case of Kerala considers the precedence of Apex court in relation to article 25 and 26.

Annexure

PART III FUNDAMENTAL RIGHTS General

Definition

12. In this Part, unless the context otherwise requires, “the State’’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

Laws inconsistent with or in derogation of the fundamental rights

13. (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (3) In this article, unless the context otherwise requires,— (a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; (b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. 1 [(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.]

Right to Equality

Equality before law

14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.]

(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.]

Equality of opportunity in matters of public employment

16. (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office [under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment.

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

(4A) Nothing in this article shall prevent the State from making any provision for reservation 3 [in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.

(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.]

(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

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

Right to Freedom of Religion

25. (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 (2), the 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.

26. 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; Prohibition of employment of children in factories, etc. Freedom of conscience and free profession, practice and propagation of religion. Prohibition of traffic in human beings and forced labour. Freedom to manage religious affairs.

(c) to own and acquire movable and immovable property;

(d) to administer such property in accordance with law.

27. 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.

28. (1) No religious 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 recognised 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

29.

(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.

(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

(Views expressed herein are the personal view of the Author)

( Author CA. Yogesh S. Limaye can be reached at yogesh@salcoca.com)

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