Showing posts with label Constitution. Show all posts
Showing posts with label Constitution. Show all posts

1.    Introduction

Religion is a matter of faith and belief. It is centered on man’s belief in supernatural forces. Sociologist Durkheim defines religion as a “unified system of beliefs and practices relative to sacred things, that is to say, things set apart and forbidden.”The terms ‘religion’ and ‘matters of religion’ are not defined in the constitution.“Our constitution framers employed the word “religion” in these two clauses (Articles 25 and 26) in the sense indicated by the word ‘dharma,’” Justice Hansaria stated in A.S. Narayan v. State of Andhra Pradesh.[i]“Religion is supplemented by visionary methodology and theology, whereas dharma blossoms in the world of direct experience,” he stated further. Dharma increases the beauty of spirituality, while religion contributes to a culture’s changing stages. Dharma helps one recognize the immortal shrine in the heart.” Religion may inspire one to construct a fragile, mortal home for God; religion may inspire one to construct a fragile, mortal home for God; religion may inspire one to construct a fragile, mortal home for God; religion may inspire one to construct a fragile

The Indian constitution recognizes the importance of religion in the lives of Indians, and so guarantees the right to freedom of religion under Articles 25 to 28. The Indian Constitution envisions a secular framework in which everyone has the right and freedom to choose and practise their faith.

As per the preamble of the constitution of India, India is a secular state.The word Secular is derived from the Latin word ‘saeculum’ which means ‘this time’, meaning this world against the eternal ‘other world.’ Secularism entails the growth, comprehension, and respect for various religions.Though the constitution did not contain the word ‘secular’ originally, it was added in 1976 when the Indira Gandhi government enacted the 42nd Amendment.

2.    Secularism in India

Secularism refers to the separation of state and religion. However, in the Indian and Western polities, this term has slightly different connotations. Secularism in the Western model refers to the complete separation of the state and the church. This can be traced back to the French Revolution, which aimed to establish a ‘secular’ government free of influence from the church and clergy. However, in India, the state and religion do not exist in separate compartments. Despite the fact that the state must maintain an equal distance from all religions, the government does have some influence over religious matters, albeit in a restricted way.

The Supreme Court of India ruled in the case of Kesavananda Bharati v. State of Kerala[ii] in 1973 that secularism is a feature of the Constitution’s basic structure. Furthermore, it was ruled that Parliament could not change aspects that make up the basic structure.In 1994, in the case of S.R Bommai v. Union of India[iii], the concept established in the Kesavananda Bharati case was reaffirmed. The Supreme Court has put to rest any doubts about the meaning of the word ‘secularism’ in the Constitution. The Court ruled that a society’s secular nature did not make it an atheist society. Secularism creates a more diverse society. A secular nation’s law accords all religions equal status and does not favour or discriminate against anyone.



3.    Constitutional Protections for Religious Liberty

The constitution of India has the following provisions relating to the rights of religion-

  • Article 25: Freedom of conscience and free profession, practice and propagation of religion.
  • Article 26: Freedom to manage religious affairs.
  • Article 27: Freedom as to payment of taxes for promotion of any particular religion. 
  • Article 28: Freedom as to attendance at religious instruction or religious worship in certain educational institutions

However, these rights are subject to following restrictions-

o   Health, morality, or public order.

o   Social reform.

o   Social welfare.

o   Remaining provisions of part 3 of the Constitution.


4.    The Essential Practices Test and Hijab Ban

This test was formulated by the Supreme Court of India in Shirur Mutt[iv] case. In this case, it was decided that the term ‘religion’ would encompass all ‘integral’ rites and practises of a religion. The SC assumed responsibility for determining what is essential. The religious question, according to the court, will be decided based on what the religious group considered essential or crucial.

In March 2022, the Karnataka High Court in Resham v. State of Karnataka[v] upheld the ban on wearing of Hijab in educational institutions where the prescription of a school uniform did not permit it. The students claimed that wearing the hijab was an integral practise in Islam and so entitled to constitutional protection as part of religious freedom under Article 25. The Bench disagreed, citing texts from the Quran. The High Court relied on the essential practices test, to rule that wearing of hijab is not an integral practice in Islam and thus preventing students from wearing hijab in educational institutions is not violative of their right to freedom of religion. The prescription of school uniform is only a reasonable constraint constitutionally permitted which the kids cannot object to, the three-judge panel wrote. The court rejected the argument in favour of ‘reasonable accommodation,’ which allows a pluralist society to reflect the socioeconomic variety in the classroom without jeopardising students’ feeling of equality.

This decision sparked a debate on the issue of freedom of religion in India and the essential practices test.The ‘essential religious practise’ test was criticised as a futile exercise in and of itself, because the Supreme Court has set an almost unreasonable criterion for determining it. Only if the absence or removal of a practise has the effect of damaging the religion itself is it considered a vital practise. With the exception of a few fundamentals, no religious practise will be able to withstand such scrutiny. A claim for Article 25 protection should be judged against constitutional ideals like as equality, dignity, and privacy, subject to health and public order.

5.    Uniform Civil Code

In recent months, the argument over the introduction of the Uniform Civil Code (UCC) has gained steamafter Uttarakhand’s Chief Minister announced the formation of an expert team to look into the potential of implementing the UCC in the state.[vi]

At present, issues like marriage, divorce, succession, and adoption are governed by various personal religious laws. After UCC is implemented, all citizens will be governed under the same laws. The Supreme Court of India and various high courts have expressed the need to implement UCC in India.[vii] However, the law commission of India, in its report in 2018, has opined that UCC is neither essential nor desirable at this stage.[viii]

People opposing the implementation of the UCC argue that they are entitled to freedom of religion under article 25-28 of the Indian constitution and UCC is violative of these rights. But article 44 of the constitution of India, which is a part of the directive principles of state policy, states that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” Thus, the presence of article 44 shows that constitution makers wanted to provide only that level of religious freedom which does not hinders the implementation of UCC. Therefore, UCC is not violative of fundamental right to religion of citizens. Another argument advanced against the UCC is that it is not feasible to bind a culturally diverse population of India under a common law. But one must not forget that the much diverse Hindu population in India is governed under the uniform Hindu laws which proves that diverse population can be administered under the same laws.In modern times, the social values are changing, and inter-caste and inter-religious marriages are getting prevalent. UCC is needed so that the modern generation does not face difficulties because of various personal laws.


6.    Blasphemy laws in India

Individuals’ right to practise, profess, and spread religion is enshrined in the Indian constitution. The same provisions impose appropriate limitations on both the state and the individual, as the exercise of the same rights must not jeopardise the country’s public order, morality, or national security. In 1927, Chapter XV of the Indian penal code was inserted as ‘offences pertaining to religion’ to safeguard the rights of one individual against the rights of another.  The following sections are covered in this chapter:

o   Section 295: It is punishable under this section if someone wilfully damages, destroys, or defiles any religious object regarded sacred by adherents of any religion in India, including objects other than idols and books. He faces a sentence of up to two years in prison or a fine, or both.

o   Section 295A: If a person knowingly insults or seeks to insult religious emotions of any class of Indian citizens through words spoken, writing, signs, or visible representation, he may be penalised under this section. If accused under Section 295A of the Indian Penal Code, a person can be sentenced to three years in prison, a fine, or both.

o   Section 296: A person who knowingly makes a disruption to any legitimate religious gathering and rituals is subject to this section’s penalties, which include a year in prison, a fine, or both.

o   Section 297: It is punishable under this section if a person knowingly trespasses any burial place knowing that his actions may offend the religious emotions of any class of citizens. Even dead people’s religious rights are said to be protected under this law. This clause carries a penalty of up to one year in prison, a fine, or both.

o   Section 298: This is a unique provision in this chapter because whereas all of the offences in this chapter of the Indian penal code are cognizable, bailable, and non-compoundable, the offence under this section is compoundable, non-cognizable, and non-bailable. Under this clause, anyone who knowingly utters any words, produces any sound or signs, visible or audible, as the case may be, to the aggrieved in order to damage the person’s religious emotions may be punished. It’s starting to make sense why it’s a compoundable and non-cognizable offence. It can only be compounded by the individual whose religious feelings have been damaged. Under this clause, an offender can face a year in prison, a fine, or both.


7.    Conclusion

In terms of religion, India is a diverse country.  It does not have its own religion because it is a secular country, and every citizen has the freedom to choose, practise, spread, and even change their faith. These rights, however, are not absolute and are subject to certain limitations imposed by the constitution.There are instances when it is necessary to intervene and implement beneficial reforms for the betterment of society. In the name of religion, no one can do anything that is against public policy or causes any type of unrest or intolerance among the Indian people.

This blog is authored by Rajul Shrivastava, a student of Jamia Millia Islamia



  • In this case, the constitutionality of Sections 326-A to 326-J of the Chennai City Municipal Corporation Act, 1919 (4 of 1919) and the Chennai City Municipal Corporation (Licensing of Hoardings and Collection of Advertisement Tax) Rules, 2003 (in short "Advertisement Rules") were challenged in the High Court via writ petitions. 

  • The writ petitions were dismissed by the High Court.

  • Unauthorized hoardings were ordered to be removed by the authorities responsible.

  • It was made clear that no licences would be issued or renewed for any hoarding that did not comply with the rules of the Chennai City Municipal Corporation Act, 1919 (4 of 1919) and the Chennai City Municipal Corporation (Licensing of Hoardings and Collection of Advertisement Tax) Rules, 2003.

  • In the city of Chennai, a committee was formed to monitor the process of removing illegal and unauthorised hoardings.

  • The authorities were ordered to dismantle and demolish all hoardings placed on or in front of any historical or aesthetical landmarks, popular places of worship, educational institutions, and hospitals, as well as any other structures designated by the committee.

  • It was further ordered that no Civil Court should hear any action opposing the destruction or removal of the unlawful hoardings and that any writ petitions opposing the destruction be filed with the High Court's Chief Justice's Bench.

  • The current appeals and writ petitions challenged (attacked) the High Court's above-mentioned decision. 

  • The Advertisement Rules were said to be in violation of Article 19(1)(a) of the Constitution. It was also argued that the rules were in violation of Article 14 of the Constitution since private and public hoardings were handled similarly, thereby treating unequal as equals.

  • It was argued that the hoardings were nothing more than advertising material and that even if the requirements were accepted to be regulatory for the sake of argument, they had to be relevant to the boundaries of Article 19(2). As a result of the rules, the use of private land for advertising has been restricted.

  • It was argued that Article 19(1)(a) allowed for the display of information on hoardings, whether commercial, political, or social, and that no restrictions could be placed on the right to disseminate information on the pretext of preventing obstruction or hazard to traffic movement, which was not covered by Article 19(2) because public order was not affected.

  • It was pointed out that allowing hoardings of political groups that were more dangerous was an unsustainable discriminating policy. Authorities were allowed unguided power to adopt alternative rules and a separate yardstick was being used.

  • Furthermore, it was claimed that the Advertisement Rules utilised the term "obstruction" to refer to bodily obstruction. Rule 6 and Rule 10 of the Advertisement Rules were also challenged. The right to regulate being exercised in this instance was claimed to be restricted rather than regulatory.

  • The Supreme Court dismissed the writ petitions and appeals, held, Tthe permissible legislative abridgement of the right to free speech and expression has been set very narrow and stringently, owing to the realisation that freedom of speech and of the press lay at the foundation of all democratic organisations, because without free political discussion, no public education, which is so important for the proper functioning of popular processes, would be possible.

  • In the present case, the relevant provisions appear to be not restrictive but are regulatory. There is no ban on advertisement hoardings but obstructive and destructive ones are to be prohibited. Advertisement is not regulated by the Chennai City Municipal Corporation Act, 1919 (4 of 1919) or the Chennai City Municipal Corporation (Licensing of Hoardings and Levy and Collection of Advertisement Tax) Rules, 2003. They prohibit the erection of any hoarding that is deemed to be unpleasant, damaging, or disruptive. It is impossible to claim that freedom of speech has been violated. The statute's content, impact, and purpose all indicate that it was not meant to be that way.

  • Hoarding licences are required in both public and private venues under the Chennai City Municipal Corporation Act, 1919 (4 of 1919).

  • In terms of public spaces, the State has complete authority to control them since they are vested in the State as a trustee for the public. The state has the authority to impose such restrictions on users of public spaces as are required to safeguard the general public.

  • The District Collector is empowered under Section 326-J of the Chennai City Municipal Corporation Act, 1919 (4 of 1919) to prohibit the erection of hazardous hoardings and hoardings that are hazardous and disrupt safe traffic movement thus adversely affect the free and safe flow of traffic. The power granted by Section 326-J is not capricious. Any action taken under Section 326-J must be based on natural justice principles and backed up by evidence. Under Section 326-H, a District Collector's order for action under Section 326-J can be appealed to the State Government. There can't be a presumption of power abuse just because a public entity has a choice over how it exercises its power. 

  • Rule 6 of the Chennai City Municipal Corporation (Licensing of Hoardings and Levy and Collection of Advertisement Tax) Rules, 2003 imposed restrictions on the size, height, spacing, and other limits on hoardings, as well as the requirement that they are erected on steel frames.

  • Rule 10 of the 2003 Rules prohibits hoardings from being placed in specific locations, including educational institutions, places of worship, hospitals, road corners, and in front of historical and aesthetic landmarks. As a result, the ability to licence is limited and directed by the factors mentioned above.

  • The refusal to award or renew licences can be appealed to the State Government under Rule 11 of the 2003 Rules.

  • In the Chennai City Municipal Corporation (Licensing of Hoardings and Levy and Collection of Advertisement Tax) Rules, 2003, the term "obstruction" refers to any conduct that obstructs the free and safe passage of traffic, pedestrians, and automobiles. However, it has a wide range of meanings and isn't always limited to physical impediments. If the subject matter shown in such hoardings draws the attention of drivers of vehicles and, as a result, obstructs free and safe traffic movement, such a hoarding would plainly fall under the definition of "obstruction foreseen under Rule 3 of the Act."

  • Rule 3 of the Chennai City Municipal Corporation (Licensing of Hoardings and Levy and Collection of Advertisement Tax) Rules, 2003 does not limit or govern the extent of Section 326-J of the Chennai City Municipal Corporation Act, 1919 (4 of 1919), which works on a larger scale.

  • On failure to obtain a no-objection certificate in accordance with Rule 3(iii) would disqualify an applicant for a licence to erect a hoarding in and of itself, Section 326-J prohibits the erection of hazardous hoardings and directs the Commissioner (now District Collector) not to issue any licence under Section 326-C in respect of such hoardings. It also empowers the Commissioner to order the confiscation and removal of any hoardings built in violation of the mandate contained therein.


  1. Whether the provisions of the Chennai City Municipal Corporation Act,1919, and the Chennai City Municipal Corporation (Licensing of Hoardings and Levy and Collection of Advertisement Tax) Rules, 2003, alleging that they were in violation of Article 19(1)(a) and Article 14 because private and public hoardings were treated equally, effectively treating unequal as equals.

  2. Whether the legislation that restricted private land use and that display of information on hoardings, whether commercial, political, or social, was permissible under Article 19(1)(a). 

  3. Whether the right to transmit information could not be restricted on the pretext of preventing hindrance or hazard to traffic flow, and the law was not protected by Article 19(2) since public order was not harmed.

Important citations 

Sagir Ahmad v. State of U.P., AIR 1954 SC 728 1 SCR707

In this case, the Court concluded in this decision that the state has complete control over public areas because they are vested in the state as trustee for the public. The state has the authority to impose such restrictions on users of public spaces as are required to safeguard the general public.

P. Narayana Bhat v. State of T.N., (2001) 4 SCC 554 

In this case, the Court held that there can't be a presumption of power abuse just because a public authority has a choice over how it exercises or uses its power.

ITW Signode India Ltd. v. CCE

In this case, the Court concluded in this decision that in the event of a disagreement between a substantive Act and delegated legislation, the former will win since delegated legislation must be understood in the context of the primary/legislative Act and not vice versa.

Hinchliffe v. Sheldon (1955) 1 WLR 1203

In this case, the Court concluded in this decision that “obstructing” the police encompasses anything that makes it more difficult for the officers to carry out their responsibilities and is not limited to physical impediments.


Bench: Dr. Arijit Pasayat, S.H. Kapadia

The Supreme Court of India held:

  • that, while very narrow and stringent limits had been set for permissible legislative abridgment of the right to free speech and expression, the challenged provisions were regulatory rather than restrictive - there was no ban on advertisements or hoardings, but obstructive and destructive ones were to be prohibited;

  • that the State has complete authority to regulate public spaces because they vest in the State as trustees for the public, and the State can impose such restrictions on public place users as may be required to safeguard the public as a whole.

  • that hoardings placed on private property must be registered and controlled since they frequently abut and are visible on public roadways and public spaces.

  • that hoardings constructed on private buildings may restrict public highways, be unsafe to the building and the public, be hazardous and harmful to the smooth flow of traffic by distracting cars and include obscene or unpleasant content.

  • that the fact that the hoarding is on private property does not excuse the government from enforcing hoarding regulations.

  • As a result, the Supreme Court determined that it is incorrect to assert that hoardings on private property are not subject to licencing requirements.


Hence, there is no logic in completely excluding private land, state government territory, or land owned by the federal government, such as the railways. The decision to give a licence or not is still up to the municipal corporation, and any breach of the limits set might still result in an application. It went on to say that such exclusion of lands amounted to prohibition and that such restrictions infringe on the basic rights of private landowners to enjoy their properties if a permit for hoardings could be given.


The article is written by Sneha Mahawar, a  law student at Ramaiah Institute of Legal Studies. This article discusses the right to put hoardings as a constitutional right in accordance with the laws of municipal corporations. It further enhances the case law of Novva Ads vs. Secretary, Department of Municipal Administration and Water Supply, and Another. 

The `positive' sense of the word `liberty' derives from the wish on the part of the individual to be his own master. [1] In pluralistic society, socio-political justice is conceived as people having different views, morals, values, and the purpose of life which needs to co-exist within a broad framework of legal protections. According to Immanuel Kant, the role of the government was to protect freedom and that people should be left to pursue their own ends as long as they do not harm the freedom of others. [2] Similarly, in “On Liberty”, J.S. Mill [3] insists that one's liberty holds more significance than protecting people from themselves. He argued that interference with liberty can only be justified when it is restricted to prevent harm to others. [4]                                        

Justice Benjamin Cardozo’s statement that “every adult human being of sound mind has a right to determine what shall be done with his own body.”[5] He did not comment on the quality of the decision i.e. whether it is a “good” decision or a “bad” decision rather emphasized the individual’s right to make that decision. Similarly, Isaiah Berlin writes “I am the possessor of reason and will; I conceive ends and I desire to pursue them; but if I am prevented from attaining them I no longer feel master of the situation.”[6] Therefore the question arises what is the limit of paternalistic laws? Who should define my liberty?  Whether I remain the owner of my choices anymore or not?

Liberals believe that, as long as a rational human being is not causing harm to others, they should be free to act in any way they choose, even if their acts harm themselves whereas utilitarian argues that if by making legislation brings about the greatest overall utility, then such legislation is justified. [7]

Exemption from wearing a helmet granted to pillion riders was set aside by the Kerala High Court in 2019.[8] Likewise, Supreme Court Committee has also emphasised on strict implementation of helmet rules in the Union Territory of Puducherry.[9] According to Section 129 of the Motor Vehicle Act, 1988, it is mandatory to wear helmets as per Indian Standards while riding. Legislation for compulsory helmets can be done in the name of utility i.e. helmets reduce head injuries, therefore harm caused may be considered to outweigh relative rarity. Thus, a policy that reduces such injuries gives its impact on the overall utility level.[10] Ronald Dworkin[11] thinks paternalism can be justified in cases where a person makes a decision that imposes significant risk which they would not make in a rational and informed state of mind. But, is the person who decides whether or not to wear a helmet, not taking this decision in an informed state?  Is his decision not a rational person’s decision? What are the criteria to demarcate the same?

In 2019, the top Federal Administrative Court of Germany held that a Sikh person is not exempted from wearing a helmet by citing religious practices. The Court ruled that one’s liberty to practice his religion is not hampered by complying with an obligation to wear a helmet. Even it went on to say that one must forego motorcycling if one wants to comply with his religious requirement to wear a turban. It was also noted that not wearing a helmet has an impact on the legally protected rights of third-party by explaining that not wearing a helmet, affects the physical as well as psychological interests of rescuers and other accident participants. [12] At first glance, so-called “harm” may seem to be a strong argument, however, its major premise needs to be qualified. Society is so highly intertwined, that it is hard to justify that an act causes no harm to others. For instance when one gets injured while not wearing a helmet in a motor vehicle accident, it can be argued that in addition to the harm caused to that person alone, it also caused harm to his loved ones, it negatively impacted innumerable others, as the cost of medical and police services that would be required by taxpayer’s money. In short, one’s actions frequently impact others, whether directly or indirectlyor remotely, and it could be argued that almost all acts influence others unless one lives and dies as a hermit.

Therefore, all self-harm will virtually cause harm to others too. Hence virtually every corner of life could be regulated by law. This should not be done as not all harm to others is wrong and not all wrongful harm could be regularised.  If the law starts prohibiting such indirect harm, that would not only include helmet laws but also dangerous sports, unhealthy lifestyles, eating junk foods, bungee jumping, etc. that is, virtually every corner of life on this logic will come in the domain of being regulated by the State. 

Paternalistic laws may be permissible if it is not taking any important right. The right not to wear helmets may seem not an important right. However, conceptually, the right not to wear helmets is part of a more important right to determine how much risk to take with one’s health. [13] Of course, there may be a limit to allow risk over one’s health but then who decides that threshold, and what should be the threshold? Some would argue that a threshold beyond which the risks with one's own health becomes too great can be made justifiable. But this again is a debatable area.

From a normative point of view, many egalitarian and liberal accounts of justice would regard any attempt to force people to bear the costs of their health-affecting behaviour as a moral travesty. Luck egalitarians would defend the idea that costs ought to be borne by those who voluntarily chose to engage in them.[14] Thus, if riders are going to be forced to take fewer risks, then, in the name of consistency and fairness, everyone ought to be required to reduce the comparable risks they run in other aspects of their lives. For example skateboarders, skydivers, and even pedestrians are required to wear helmets too. In fact, by extension, people can be forced to wear spine protectors and other protective devices too.

However, there are certain situations where the costs to an individual’s liberty are trivial as compared to other values, such as health which can be protected by restricting liberty. Liberty is an essential value, but it’s not the ‘only’ value. It follows that upholding the autonomy principle absolute does not force one to condemn all paternalism. So, it depends on your rational thinking whether you want to justify paternalistic law on helmets as a matter of efficient public policy or curtailment of your liberty. The helmet lies on your head.


[1] Isaiah Berlin, “Two Concepts of Liberty,” Four Essays on Liberty, Oxford University Press, 1969, p. 118-172.

[2] Susan Meld Shell, “Kant and the Limits of Autonomy”, Harvard University Press, 2009

[3] J.S. Mill, “On Liberty,” London: Longman, 1998

[4] Bruce Baum, "J. S. Mill on Freedom and Power." Polity 31, no. 2 (1998): 187-216

[5] Schoendorff v. Society of New York Hosp., 105 N.E. 92, 93 (N.Y.1914)

[6] Supra note 1

[7] Piers Norris Turner, “‘Harm’ and Mill’s Harm Principle.” Ethics, vol. 124, no. 2, 2014, pp. 299–326, available  Accessed 4 May 2021.

[8]George John and Ravindran T.U. v The Chief Secretary, Government of Kerala, WP(C).No.25181 of 2010(S)

[9]S. Prasad, SC Panel wants helmet rule enforced. The Hindu, February 27, 2019, available at

[10] C. Hooper, J. Spicer, “Liberty or death; don't tread on me,” Journal of Medical Ethics 2012; 38: 338-341.

[11]Paternalism and Irrationality, May 2017, 2010 available at

[12]German Court: Sikhs have to wear helmets on motorbikes, July 7, 2019, available at

[13] Michael N. Goldman and Alan H. Goldman, “Paternalistic Laws”, Philosophical Topics, Vol. 18, No. 1, 1990, pp. 65-78, available

[14] Lamont, Julian and Christi Favor, "Distributive Justice", The Stanford Encyclopedia of Philosophy (Winter 2017 Edition), Edward N. Zalta (ed.), available at