Articles 25 to 28 Give Every Person in India the Right to Practise Any Faith, and Since 11 March 1994 the Supreme Court Has Held Secularism Part of the Constitution's Basic Structure

The Constitution of India does not define the word “secular”, and the Supreme Court has supplied the definition in its own judgments. In its order of 25 November 2024 the Court wrote that India’s version is one in which “the State neither supports any religion nor penalizes the profession and practice of any faith.”

The rules that put this into practice sit in four articles, 25 to 28, part of the Fundamental Rights in force since 26 January 1950. What they say, what the Constituent Assembly meant by a secular State, and how the Court has applied them is set out below, in the order a reader would ask.

What Articles 25 to 28 say

Article 25(1) says that “all persons”, a phrase that covers non-citizens, are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion, which means to spread one’s faith. The right is “subject to public order, morality and health” and to the rest of the Fundamental Rights chapter.

Two clauses give the State room to act. Article 25(2)(a) lets it regulate “economic, financial, political or other secular activity which may be associated with religious practice”. Article 25(2)(b) lets it make laws for social welfare and reform and for opening Hindu religious institutions of a public character to all classes and sections of Hindus. An explanation adds that carrying kirpans is part of professing the Sikh religion, and a second says “Hindus” in clause (2)(b) includes Sikhs, Jains and Buddhists.

Article 26 protects a religious denomination, meaning a group with its own beliefs and organisation. It may set up religious and charitable institutions, manage its own affairs in matters of religion, own property and administer it “in accordance with law”. Article 27 says no one can be forced to pay a tax whose proceeds go specifically to promoting or maintaining a particular religion.

Article 28 deals with schools. No religious instruction may be given in an institution wholly maintained out of State funds, with an exception for an institution that the State administers but that was set up under an endowment or trust requiring it. In a recognised or aided institution, nobody can be made to take part in religious instruction or worship without consent, or the guardian’s consent for a minor. The companion rights are in our guide to Articles 12 to 35, including Article 15(1), which bars the State from discriminating on grounds only of religion, and Articles 29 and 30 on minority institutions.

What the Assembly meant by a secular State in 1948

The word was not in the text. The Constituent Assembly took up the draft of Article 25, then numbered 19, on 6 December 1948, and the record shows members arguing over the idea anyway. Lokanath Misra called “Secular State” a “slippery phrase” and objected to the word “propagate”. L. K. Maitra answered that a secular State “is not going to make any discrimination whatsoever on the ground of religion”, and said that “no particular religion in the State will receive any State patronage whatsoever.”

H. V. Kamath proposed a clause saying the State “shall not establish, endow or patronize any particular religion”, and the Assembly negatived it, as it did a separate amendment that the Republic “shall make no law respecting an establishment of religion or prohibiting the free exercise thereof”. Kamath’s speech still gave the other half of the idea: “a secular state is neither a God-less State nor an irreligious nor an anti-religious State.” Mohammad Ismail Khan’s amendment to protect personal law from the article was also negatived. Durgabai’s change, from “any class or section” to “all classes and sections” of Hindus, was accepted, and the Assembly adopted the article as amended. The wider story of that body is in our account of the Constituent Assembly at work.

Neither a State religion nor a wall between State and faith

Read together, the articles keep the State from preferring a faith and still allow it to regulate and fund religious institutions. The text shows both. Entry 28 of the Concurrent List in the Seventh Schedule, the subjects on which Parliament and state legislatures can both legislate, covers “charitable and religious endowments and religious institutions”. Article 290A orders a yearly payment from the Consolidated Fund of Kerala to the Travancore Devaswom Fund, forty-six lakh and fifty thousand rupees (Rs 46.5 lakh), and one of thirteen lakh and fifty thousand rupees (Rs 13.5 lakh) from Tamil Nadu to its Devaswom Fund for the upkeep of Hindu temples and shrines. Article 30(2) bars discrimination in State aid against a school because a minority manages it.

The edge of a religious group’s own domain was tested in Sardar Syedna Taher Saifuddin v State of Bombay, decided on 9 January 1962, where five judges split four to one. The Bombay Prevention of Excommunication Act, 1949, made every excommunication invalid. The majority held that, for the Dawoodi Bohra community, excommunication by its religious head was part of managing its own affairs in matters of religion, and that the Act infringed Article 26(b). Chief Justice B. P. Sinha dissented. He wrote that the State may restrict or regulate religious practices that harm the community, and listed the stopping of widow burning as reform on “humanitarian grounds”.

The judgment also quotes the 1954 Shirur Mutt ruling, in which the Court said that Articles 25 and 26 protect acts done in pursuance of religion, and that a denomination decides which rites are essential to it. Justice N. Rajagopala Ayyangar, who agreed with the majority, wrote that the two articles “embody the principle of religious toleration” and “emphasize the secular nature of Indian Democracy”.

What the courts have ruled on secularism itself

In S R Bommai v Union of India, decided on 11 March 1994 by nine judges, the question was when the Centre may dismiss a state government under Article 356. The proclamations in Karnataka, Meghalaya, Nagaland, Madhya Pradesh, Himachal Pradesh and Rajasthan were before the Court, and our piece on the emergency provisions gives that side of the judgment. The reported headnote also lists “positive secularism” and records that secularism is part of the basic structure, the set of features that Parliament cannot amend away (see our account of the Kesavananda Bharati case).

Justice B. P. Jeevan Reddy’s passage on this, as the Ayodhya judgment reproduces it, reads that secularism “is a positive concept of equal treatment of all religions”. He wrote that any step inconsistent with the policy “is, in plain words, unconstitutional.”

The 2024 order summarises two earlier rulings. In R C Poudyal v Union of India, it says, the Court held secularism to be the nation’s commitment to treat persons of all faiths equally and without discrimination. In M Ismail Faruqui v Union of India, the Court wrote that “The State maintains no religion of its own”, and that a State’s secular nature does not stop it from ending religion-linked practices that hinder development and equality.

On 9 November 2019 a five-judge bench decided the Ayodhya title dispute. Writing about the 1976 insertion, the Court said that it “reiterated what the Constitution always respected and accepted: the equality of all faiths”. It also wrote that “The value of a secular constitution lies in a tradition of equal deference” to the beliefs of worshippers of every religion. It decreed Suit 5, brought in the name of the deity of Lord Ram, and directed that five acres in Ayodhya be allotted to the Sunni Central Waqf Board. It described the Places of Worship (Special Provisions) Act, 1991, which freezes the religious character of places of worship as on 15 August 1947, as a law meant to protect the secular features of the Indian polity.

The word added in 1976, and the 2024 petitions

The Forty-second Amendment put “secular” into the Preamble with effect from 3 January 1977, and our article on the Preamble covers the history. Petitions filed in 2020 argued that the Assembly had left the word out on purpose. The Court’s order of 25 November 2024 accepted that the Assembly had not agreed to include it, held that the amending power reaches the Preamble, and dismissed the petitions without notice. It noted that in 1949 “secular” was thought imprecise because some read it as opposed to religion, and that the petitions came forty-four years after the amendment.

Personal laws and Article 44

Family law is another place where the State and faith meet. Entry 5 of the Concurrent List lists marriage and divorce, adoption, wills and succession, and matters where parties were subject to their “personal law” before 1950. Article 44, in the Directive Principles that courts do not enforce, says “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

The Law Commission’s consultation paper of 31 August 2018 held that a uniform civil code was “neither necessary nor desirable at this stage”, writing that “the mere existence of difference does not imply discrimination”. On 14 June 2023 the 22nd Law Commission invited views again, citing the time since that paper and “the various Court orders on the subject”.

Shayara Bano v Union of India, decided on 22 August 2017, set aside triple talaq (talaq-e-biddat) by a 3 to 2 majority of five judges. The 2018 paper observed that the Court did so largely on the premise that the practice is not essential to Islam, and had not settled whether fundamental rights prevail over personal law.

What nine judges are deciding now

The Sabarimala case tests where Article 25 meets Articles 14 and 26. On 28 September 2018 a five-judge bench held, four to one, that the rule barring women of one age group from the Sabarimala temple was invalid. The lead opinion, by Chief Justice Dipak Misra for himself and Justice A. M. Khanwilkar, found that devotees of Lord Ayyappa had no identified sect of their own. Justice Indu Malhotra dissented, writing that the equality in Article 14 does not override the right to practise a faith under Article 25.

A review bench referred the larger questions to nine judges on 14 November 2019. They include how far courts can review religious practices and whether a denomination’s Article 26 rights give way to other Fundamental Rights. The bench, headed by Chief Justice Surya Kant, began hearing the reference on 7 April 2026 and reserved its judgment on 14 May 2026, after 16 days, according to the Supreme Court Observer’s reports of the hearing.