This Research Paper is written by Parinay Gupta, a Fifth Year B.A LL.B (Hons.) Student at Amity Law School, Delhi.
The question of an individual’s freedom of religion conflicting with other provisions of Part III has long been a subject of debate in India. While sharing his opinion in the Sabarimala Temple case, Justice Chandrachud gave an interesting constitutional proposal. He stated that “liberty, equality and dignity are principles that are at a stature above all else as a value which tolerates no exemptions, even when challenged with a claim of freedom of religion.”
He refers to the text in the Constitution while stating that the freedom of religion as a fundamental right enshrined under Article 25(1) is subject to “other provisions of this Part”. This subjugation of the religious right makes it clear that in the order of constitutional primacies, freedom of religion was not envisioned to succeed over but rather be subject to the superseding constitutional principles of liberty, equality and freedom enshrined in the other provisions of Part III.
The “subject to” clause found in Article 25(1) is unique to this Article alone in Part III of the Constitution. The question of why the drafters of our constitution put this restriction only on one right amongst the other fundamental rights, has no answer even in the Constituent Assembly Debates.
It is interesting to note that other Human Rights documents around the world do not share the same belief as the makers of our Constitution did. Going through the Universal Declaration of Human Rights (UDHR, 1948), it has to be noted that this international document does not place any hierarchy among rights and treats all of them equally by proposing the same acceptability standards for limitations on any right by recognising that “everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”
Similarly, other documents made specifically for human rights that came after, share the same belief for the harmony between rights. Therefore, it’s not surprising that none of them share that belief with our Constitution, which states that religious rights are the only kind of rights that are “subject to” the other fundamental rights of Part III.
Other Provisions of Part III affect Article 25(1)
It must be understood that all words in a Constitution or a founding document should be given their due denotation, and no phrases or words of the Constitution can be considered useless or redundant and this is a well-settled Principle of the Rule of Interpretation.
Owing to this principle, the words used in Article 25(1) “subject to the other provisions of this Part” should be given some meaning and importance considering this is the only Article in Part III where a right is clearly made subject to the other rights. This limitation alone expressly shows the fact that fundamental rights are not all equal in importance as per the Constitution. Instead, they should be seen as hierarchically bound together.
It can be argued that the right of freedom of religion is subject to all the other fundamental rights. This is immediately indicated by the fact that the “subject to” clause recommends or makes no separations between the various provisions of Part III, which suggests that freedom of religion holds a place below any one of the other provisions. Undeniably, the argument that if the drafters wanted religious freedom to be subject to only some specific provisions of Part III, there was no reason for them to not clearly highlight such provisions by explicitly making their selection.
Objections to this Interpretation
One objection to such an argument that can be raised is that the “subject to” clause is designed to subject Article 25(1) exclusively to the provisions listed down in Article 25(2), the plan being that freedom of religion must not become an interference in the State Government plans to bring upon social reform. However, such an objection would fail.
The framers of our Constitution were within their power to expressly mention one particular Article, given that the same was finalised even in the earlier versions of the Article 19 we currently know, however, they chose not to. This clearly shows a conscious decision was made on their end to make religious freedom subject to all other rights.
Another objection that could be raised is that Article 25(1) was designed to be subject only to Article 26 and the group rights enshrined within it, keeping in mind that individuals will not be able to disrupt the group rights of religious entities, in times of conflict. However, if it was to believe that such a meaning was planned, the Article would have expressly mentioned “subject to the provisions of Article 26”. Considering, it is not rare that our Constitution adopts such a specific language, the use of the phrase “Part III” was designed to ensure Article 25(1) is subject to all of the other fundamental rights and not one or two specific rights.
Positive Obligation Rights and Horizontal Rights
Now that it is established that Article 25(1) is subject to all of the other fundamental rights laid down in Part III, it must be noted that its effect is most easily noticeable when it comes to two types of provisions. Firstly, we have the provisions that identify horizontal rights which are those rights that are enforced when an individual files a writ petition against another non-State entity. Secondly, we have provisions which enable positive obligations against the State.
Horizontal Rights are rights that are not only valid against the State but even valid against private individuals and Articles 17, 23 and 24 are examples of such rights. In the PUDR case, the Supreme Court held that such rights are “enforceable in any part of the world”. The person who faces an infringement of these rights “can always go to the court to ask for his fundamental right to be enforced.”
With regards to Article 17 in particular, Justice Chandrachud in the Sabarimala Temple judgment opined that it “embodies an enforceable constitutional mandate”. Additionally, some of the other Articles in Part III also suggest a horizontal application of rights, hence, leaving room for interpretation as to the individuals against whom the right can be enforced.
Closely related to this, is the belief that the State has a positive obligation to safeguard some particular rights. The idea being that not all rights can be horizontally enforced. Rather, a writ petition can be filed demanding a suitable direction given to the State to perform its positive obligations, for the enforcement of all such rights. The Supreme Court has identified several such rights. The Constitution has placed horizontal rights on one hand under Article 17, Article 23 and Article 24. We have the rights to privacy and dignity on the other hand. This clearly indicates that there is sufficient room for the possibility of other rights being recognized generating positive obligations in the future.
This leads to the belief that Article 25 has the potential to interfere with the universal applicability that the other provisions enjoy. If the freedom of religion interferes with the other rights, they lose their horizontal applicability as well as cause a hindrance in the positive obligation of the State to enforce them.
Resolution of Underlying Tensions
In May 2020, the Allahabad Court gave a judgement for a Public Interest Litigation (PIL) that was instituted against a religious building that used loudspeakers to broadcast daily prayers. The petitioners had contested that barring the usage of loudspeakers for daily prayers infringes their religious freedoms under Article 25(1) and it was argued that this form of praying is an essential religious practice. This case could be construed as a classic example of the underlying tensions between freedom of religion as per Article 25(1) and the right against “aural aggression” and the right to privacy as per Article 21.
The technique of balancing commonly used by courts to resolve conflicts based on rights would not work in this context. This is different from conflicts arising out of other fundamental rights. In the case of Sahara v. SEBI, the Supreme Court saw the right to freedom of speech and expression under Article 19(1)(a) in direct conflict with the accused’s right to a fair trial under Article 21.
The Court attempted to resolve this conflict by using the “doctrine of balancing” and formulating a middle path so as to find a middle ground between the two conflicting rights and made sure that neither of the two is scrapped out of existence during interpretation.
The logic behind this need to find a balance, as observed in the Sahara case, is that the two conflicting fundamental rights are equal according to the Constitution and that neither may trump the other. However, that’s not the case due to the existence of the “subject to” clause in Article 25(1). There is no doubt that if the “subject to” clause did not exist, there would be no hierarchy in place between the different rights enshrined in Part III and freedom of religion as per Article 25(1) would have the same importance as the right to privacy under Article 21.
In the absence of such a hierarchy, the Courts would try to find a middle ground between these two fundamental rights so as to resolve the conflict, like they strived to do in the Sahara case. Nevertheless, such methods of resolution find no haven under our Constitution, which allows for the freedom of religion to be disregarded by thus, by extension, the right to use loudspeakers, the moment a fundamental right under Article 21 or any other Article in Part III enters the arena.
It is established that religious freedom as per Article 25(1) is controlled by and subordinate to other fundamental rights of Part III. There is a possibility that the freedom of religion interferes with the horizontal enforceability of other rights as well as the State’s positive obligations. Furthermore, resolution of conflicts between Article 25(1) and other provisions of Part III can be done by simply treating one’s religious rights under Article 25(1) as inferior to one’s rights enshrined under the other Articles. Thus, it can be concluded that one’s religious rights cannot infringe another individual’s various other fundamental rights, and in the situation where a conflict arises, the right to religious freedom will have to be set aside.
 A 5th Year B.A. LLB. student studying at Amity Law School, Delhi (Affiliated to GGSIPU)
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