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Offences Relating to Religion
On February 14, 2015 By sinjini

By Akhil Mahesh, National University of Advanced Legal Studies, Kochi

Editors Note: The Constitution of India grants freedom of religion and the Indian Penal
Code lays down provisions for offences relating to religion. These offences can be classified
into three broad categories: defilement of places of worship or objects of veneration, outraging
or wounding the religious feelings of persons, disturbing religious assemblies. This paper
discusses the various offences defined under these categories.

It is the cardinal principle of good government that every man should be suffered to profess
his own religion and that no man should be suffered to insult the religion of another.

Kutti Chanami Moothan v. RanaPattar, (1978) 19 Cri LJ 960

INTRODUCTION

This is exactly the principle upon which Chapter XV of the Indian Penal Code is framed. It
makes any deliberate acts perpetrated by persons of one religious persuasion for the insult or
annoyance of persons of another persuasion punishable.[i] This adheres to the principle of
secularism which falls in line with the Preamble of the Constitution of India along with Articles
25 to 30. Article 25 of the Indian Constitution guarantees the right to freedom of religion. All
persons are thereby entitled to practice, profess and propagate a religion of their choice. This
freedom, though quite vast, is not an unlimited one. It is one that is subject to public order,
morality and health.

Simultaneously, the State has to ensure that the religious beliefs of individuals do not become
causes of hostility, tensions, controversies or violence of any manner amongst the people.
Chapter XV of the Indian Penal Code ostensibly helps the State in maintenance and
continuation of religious harmony in the country.

This chapter contains five sections ss 295, 295a, 296, 297 and 298. The offences under this
chapter can be broadly classified under three divisions:

1. Defilement of places of worship or objects of veneration (ss 295 and 297)

2. Outraging or wounding the religious feelings of persons (ss 295A and 296)
3. Disturbing religious assemblies (s 296)
DEFILEMENT OF PLACES OF WORSHIP OR OBJECTS OF
VENERATION
Section 295. Injuring or defiling place of worship with intent to insult the religion of any
class

Whoever destroys, damages or defiles any place of worship, or any object held sacred by any
class of persons with the intention of thereby insulting the religion of any class of persons or
with the knowledge that any class of persons is likely to consider such destruction, damage or
defilement as an insult to their religion, shall be punishable with imprisonment of either
description for a term which may extend to two years, or with fine, or with both.

Section 297. Trespassing on burial places, etc

Whoever, with the intention of wounding the feelings of any person, or of insulting the religion
of any person, or with the knowledge that the feelings of any person are likely to be wounded,
or that the religion of any person is likely to be insulted thereby,commits any trespass in any
place of worship or on any place of sculpture, or any place set apart from the performance of
funeral rites or as a depository for the remains of the dead, or offers any indignity to any human
corpse, or causes disturbance to any persons assembled for the performance of funeral
ceremonies,shall be punished with imprisonment of either description for a term which may
extend to one year, or with fine, or with both.

Ingredients

Section 295 compels people to respect the religious susceptibilities of persons of different
religious persuasions or creeds by making destruction, damage or defilement of a place of
worship or an object held sacred, with the intent to insult the religion, by a class of persons,
punishable.[ii] Section 297 extends the principle in Section 295 to places which are treated as
sacred. It punishes a person who, with the intent to insult the religion of another or hurt the
religiou feelings of a person, commits trespass in any place of worship or of sepulture, or any
place of burial or place set apart for burial rites.[iii]

The essential ingredients of this section are:

1. Intention or knowledge.
2. Destruction, damage or defilement of:
1. A place of worship
2. A place of veneration
3. An object held sacred
4. Trespass into:
1. A place of worship
2. A place of sepulture
3. A place set for performing funeral rites or a depository of remains of the dead

1. Intention or Knowledge

The essence of the offence under Section 295 is the intention to destroy, damage or defile a
place of worship or an object held sacred. Without the requisite mens rea, mere defilement of
a place of worship is not an offence. The intention to insult is a question of fact which can be
judged depending on the facts and circumstances of the case.
In the case of Jan Mohammed v. Narain Das[iv]the accused removed some rubble and old
building materials belonging to a mosque that was in rotten condition and consequently in
disuse. The accused was held not liable under these sections as he had no intention of insulting
the Mohammedan religion or any of its practitioners. He also had no knowledge that his actions
may cause insult or hurt to any class of people.

But, throwing a lit cigarette by a Mohammedan on the Viman, an object sacred to the Hindus
cannot be said to be an unintentional act or one without guilty knowledge. Such an action is an
insult to the Hindu religion and its practitioners. Hence the accused was held guilty.[v] Also,
committing sexual intercourse within or inside a mosque or a temple is an offence under
Section 297.[vi]
2. Destruction, Damage or Defilement

The words destroy or damage usually mean an act physically or materially affecting the
property concerned but it should also be understood in the sense of making property dirty,
unclean or foul. The word defilement would not only mean physical destruction but also
situations wherein the place of worship or the object of worship would be rendered ritually or
ceremonially impure. The presence of a person belonging to a lower caste in a Hindu temple
open to only those of higher castes was held not to be defilement under the ambit of Section
295.[vii]
3. Place or Object to be Sacred

An essential ingredient of this section is that the destruction caused should be of a place of
worship or an otherwise sacred place. Whether or not a particular place or object is sacred is a
question of fact and as a general rule, temples, churches, mosques, synagogues, kyaungs are
all considered sacred by virtue of them being places of worship. In Joseph v. State of
Kerala[viii] the accused got bona fide possession of a hut on agricultural land by a court order.
This hut was used as a place of worship by people. The accused took possession and razed the
hutment and took down the pictures of the Hindu Gods. He was charged under Section 295.
The High Court held that he had the right to use the land as he pleased and had not intended to
hurt the religious sentiments of others and hence acquitted him.

Books like the Bible, the Koran and the Granth Sahib are all held to be sacred even though they
are not worshipped per se.
4. Trespass into Place of Worship or Place of Sepulture

Section 297 makes any trespass into a place of worship or a place of sepulture a criminal
offence. This means that the trespass committed need not amount to criminal trespass for it to
come within the scope of Section 297.[ix] The word trespass has been used in this section to
indicate an unjustifiable intrusion upon a property in the possession of another.[x] Sexual
intercourse within a place of worship would make the actors liable under this section.[xi]
5. Indignity to Human Corpse and Disturbing Funeral Rites

Showing any manner of disrespect to a human corpse disturbing the performance of funeral
rites is a criminal offence under Section 297. The word disturbance means any form of active
interference or the hindrance to the performance of the funeral ceremonies. In Basir-ul-Huq v.
State of West Bengal[xii] the mother of one DhirendranathBera died. He along with others took
the corpse to the cremation grounds. In the meantime, the accused filed a complaint with the
police stating that Dhirendranath had throttled his mother to death. When the pyre was ablaze,
the accused along with the sub-inspector arrived at the crematorium. The accused persuaded
the policeman that if the flames were extinguished that the marks of injury would be found on
the body. The fire was hence extinguished but no marks were found. Dhirendranath filed a
complaint against the accused under Section 297 and stated that a prior enmity caused a mala
fide intention to hurt his religious sentiments which caused him to trespass on the cremation
grounds and cause the dead body to be desecrated. The accused was convicted and sentenced
to three months rigorous imprisonment.

OUTRAGING OR WOUNDING RELIGIOUS FEELINGS

Section 295A. Deliberate and malicious acts, intended to outrage religious feelings of any
class by insulting its religion or religious beliefs

Whoever, with deliberate and malicious intention of outraging the religious feelings of any
class of citizens of India,by words, either spoken or written, or by signs or by visible
representations or otherwise, insults or attempts to insult the religion or the religious beliefs of
that class, shall be punished with imprisonment of either description for a term which may
extend tothree years, or with fine, or with both.

Section 298. Uttering, words, etc., with deliberate intent to wound the religious feelings
of any person

Whoever, with the deliberate intention of wounding the religious feelings of any person, utters
any word or makes any sound in the hearing of that person or makes any gesture in the sight of
that person or places, any object in the sight of that person, shall be punished with imprisonment
of either description for a term which may extend to one year, or with fine, or with both.

Ingredients

These sections of the Indian Penal Code relate to acts done deliberately with an intent to
outrage, wound or insult the religious feelings or sentiments of any persons. Section 295A deals
with actions intended to outrage the religious feelings or insult the religious beliefs or the
religion of a particular class of persons that can be termed as deliberate and malicious;
whereas Section 298 makes punishable those deliberate acts of verbal or visible
representation that intend to wound the religious feelings of another.

The difference in the two sections can be seen from the way they have been worded. Section
295A refers to deliberate and malicious intention of outraging the religious feelings of a
class of citizens of India. Section 298 makes any utterances done or gestures made with
deliberate intention of wounding religious feelings of a person punishable. When
contrasted, it is seen that the word outraging is much stronger than the word wounding and
hence the offence under Section 295A is more serious than the offence under Section 298. As
a result, it is observed that the punishment under Section 295A is simple or rigorous
imprisonment extending up to three years whereas that under Section 298 is either type of
imprisonment which may extend to a term of one year or with a fine or both.

These sections allow fair latitude for religious discussions and debates but at the same time
prevents people from offering under the pretext of such discussion any intentional insults to
what is held sacred by others.
DISTURBING RELIGIOUS ASSEMBLIES
Section 296. Disturbing religious assembly

Whoever voluntarily causes disturbance to any assembly lawfully engaged in the performance
of religious worship, or religious ceremonies, shall be punished with imprisonment of either
description for a term which may extend to one year, or with fine, or with both.

Ingredients

The essential ingredients of this section are:

1. There must be an assembly which is engaged in the performance of religious worship

or religious ceremony
2. Such assembly and performance of such ceremony should be lawful
3. The accused must cause disturbance to such assembly
4. The accused must do so voluntarily

This section affords special protection to congregational worship. It does not cover individual
worship. A religious procession is regarded as a lawful assembly unless it interferes with the
ordinary use of the streets by the public or contravenes any rules or regulations.

Where a mosque situated on the banks of a highway, passing by in a procession with music
playing loudly at a time when prayers are going on will be an offence as such music would
necessarily disturb the congregation engaged in prayer.[xiii]

Edited by Sinjini Majumdar

[i]Gopinath Puja Panda Samanta v. Ramchandra Deb AIR 1958 Ori 220

[ii]S VeerbhadraChettiar v. EV RamaswamyNaicker AIR 1958 SC 1032

[iii]Mustaffa Rahim v. Motilal (1909) Cr LJ 160

[iv] (1883) All WN 39

[v]Saidullah Khan v. State of Madhya Pradesh, AIR 1955 Bhopal 23

[vi]Soban Ram v. Crown, 67 IC 686

[vii]Atmaran v. King Emperor, AIR 1924 Nag 121

[viii] AIR 1961 Ker 28

[ix]Ram Prasad v. State of Uttar Pradesh, AIR 1952 All 878

[x]Jhari Singh v. Emperor, AIR 1920 Pat 349

[xi]Maqsud Hussain v. Emperor, AIR 1924 All 9

 [xii] AIR 1953 SC 293

[xiii]Public Prosecutor v. SunkuSeethalah, (1910) ILR 34 Mad 92

Essential Religious Functions Test

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3 Replies to Offences Relating to Religion

1. leah evance says:

April 4, 2016 at 5:07 pm

I understand very well this category of offences and its ingridients..thanks for this lecture.

REPLY

2. Christopher b says:

April 22, 2017 at 6:16 pm

Educative and enriching readers with checks on violations and infrengement of fundamental
right to Religion.

REPLY

3. says:

April 26, 2017 at 8:55 pm

16



2015


,


F.I.R

?

REPLY

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 Constitutional & Administrative Law
Essential Religious Functions Test Judicial Transgression Or Social Justice?

Essential Religious Functions Test Judicial Transgression Or Social

Justice?
On November 17, 2015 By admin

Reigha Yangzom

INTRODUCTION
The Delhi Agricultural Cattle Preservation Act, 1994 imposes a total prohibition on the
slaughter, sale or purchase, transport or export, possession and storage of beef in Delhi. This
legislation was passed primarily due to the fact that the cow is considered to be holy by the
Hindus. The BJP-led Municipal Corporation of Delhi (MCD) cautioned the organisers and
passed a resolution against the serving of beef during the Commonwealth Games 2010.
Eventually, the Delhi government also clarified that no beef would be served during the Games.
The immense controversy over the fact that beef being would be offered in the common wealth
games in the capital city was mainly attributed to the religious sentiments of the Hindus. This
incident throws light on the fact that religious practices have an extensive impact on the Indian
society.
Secularism in India unlike that in most western countries makes no effort to disconnect religion
from the public space in light of the fact that religion in India is recognised as a sociological
phenomenon and also as an ethical system of values.1 In India, the concepts of religion, the
welfare state and secularism are all intertwined. Various religious texts are acknowledged by
the Indian Constitution as a source of law. Taking into consideration the peculiar position that
religion occupies in the Indian Society, this researcher endeavors to examine the role of the
judiciary in interpreting religion and the secular society.

ESSENTIAL RELIGIOUS FUNCTIONS TEST:

The constitution of India under section 252 guarantees to its citizens the right to freely practice
any religion subject to the limitations of public order, health and morality. The Indian
constitution not only guarantees the right to freely practice a religion but it also makes provision
for intervention by state thereby paving a path for a diversified establishment.3 Therefore, it
does not provide protection to any economic, financial, political or other secular activity which
may be affiliated to some with any religious practice but is not an indispensable religious
practise.
It has always been a complicated task to compartmentalise if a particular issue falls under
essential religious function or if it is a secular activity only associated with religion. In order to
demonstrate the predicament in classifying the same one may look into some foreign
judgements.

FOREIGN JUDGEMENTS
In Adelaide Co. V. Commonwealth 4 members of the Jehovahs witnesses5 acting pursuant
to the National Security Regulations 1940, the Government of Australia declared Jehovahs
Witnesses to be prejudicial to the defence of the Commonwealth and to the efficient
prosecution of the war. Police immediately occupied premises of the organisation. The
legality of this was challenged in the high court through a writ petition. The High Court held
that the propagandas of the Jehovahs Witness were political activities and that their religious
freedom was in no way infringed by the National Security Regulations 1940.
Again, in the case of Minersville School District v. Gobitis6 two students were expelled from
the public schools for declining the order to salute the flag as part of a daily school exercise.
These children were Jehovahs Witnesses who were of the belief that saluting the flag was
against their religious practices. The US Supreme Court held that saluting the flag being an
essential gesture of national unity was designed to promote in the minds of children who
attend the common schools an attachment to the institutions of their country and that the
legislation mandating the students to salute the flag did not infringe the right to freedom of
religion.
However, in another case7 the Supreme Court held that compelling students of a public school
to a salute to the national flag infringes upon an individuals intellect and right to choose their
own beliefs. Therefore, such action of the state would violate the liberty of religion.
These haphazard judicial opinions highlights the fact the impediment of integrating the
religious practices which are essential to the religion and those which are merely activities
associated with a religious practice.
In the case of Jones v. Opelika8 the Supreme Court of United States held that that a statute
prohibiting the sale of religious books without a license was constitutional because it only
covered individuals engaged in a commercial activity rather than a religious ritual.
Nonetheless, the Supreme Court retracted from the decision in the above case in Murdock v.
Pennsylvania9 which furthermore encapsulates the juxtaposed position of secular commercial
activities and religious practices. An ordinance had been enacted according to which any
person collecting funds or selling merchandise required a licence. Several Jehovahs Witnesses
who went door-to-door distributing religious literature and soliciting funds were fined and
imprisoned for failing to acquire the license. The Supreme Court declared the license tax
unconstitutional as it applied to activities which were religious and not commercial.

INDIAN JUDGEMENTS
In India, the essential religious functions test emerged as a result of the ambiguity in the case
of Shirur Mutt10 The apex court eliminating the assertion test, in which the only criteria to
prove that a certain case wasnt a secular act was the assertion of a high priest stating the same.
As a replacement to this test, the essential practices test was brought about. In accordance to
this test, only those practices which were integral to the faith obtained exemption from state
intervention. The courts had the autonomy in the matter of deciding as to what rites and
ceremonies are essential religious practices.
In the case of Durgah Committe v. Hussain Ali11 the court held that Articles 25 and 26 provides
only essential and integral parts of religion immunity from state intervention. It also held that
the immunity is provided not only to matters of doctrines or belief; but it extends to acts done
in furtherance of religion such as rituals, observances, ceremonies, modes of worship which
are considered to be fundamental parts of the religious practices. The Court also made an
observation which stated that no immunity would be provided to superstitious, peripheral and
unnecessary religious practices.
Here again, in another case12 the court set up certain guidelines in determining whether a
particular practise is an essential religious function. The court held that in order to determine
whether a particular act constitutes an essential religious function or not reliance needs to
placed on the doctrines and religious texts of that particular religion.
In Mohammad Hanif Qureshi Vs. State of Bihar 13 the court was vested with the task of
deciding whether the prohibition on cow slaughter was in violation of freedom of religion of
the Mohammedans. The petitioners argued that the sacrifice of cow was an essential religious
function on the day of Bakrid. The court after looking at the religious text of the Mohammedans
i.e. the Koran held that it was not an integral part of their religion and hence, it could be
regulated by article 25(2)(a).
The right to freedom of religion is only limited to matters relating to religion. Secular activities
in spite of being related to religion are not protected from interference by the state. However,
it has always been a herculean task neatly compartmentalise as to whether a particular activity
is secular because in certain cases the essential religious activity is inextricably mixed with the
secular activity. The case of Bira Kishore Deb v. State of Orissa14 is an exemplary example of
the same. The petitioners argued that The Sri Jagannath Temple Act, 1954 was in violation of
the freedom to manage its own religious affairs as guaranteed under section 26(b). The court
however, held that Sevapuja comprised of two aspects one of which was concerned with the
materials to be offered in the Sevapuja which was in essence a secular function and the act only
regulated that part of the Sevapuja. In another case15 the Apex court validated a law which
transferred the power to manage the temple to a board of trustees instead of the Pandas. The
court emphasized on the fact that the law only dealt with the secular aspect i.e. administration
of the temple which was inefficient and incompetent and hence, the state in no way infringed
the religious rights of the people.
The intervention of the state in secular matters associated with religion has brought about some
favourable and positive judgements. In Sastri Yagnapurushdasji v. Muldas16 Bombay Hindu
Places Of Worship Act was passed which permitted untouchables to enter and worship in the
temples. Here, the satsangi sect challenged the constitutional validity of that Act prohibiting
their practice of not allowing untouchables to enter temples. They argued that they were not
part of the Hindu religion and they were exempted from this legislation. The Supreme Court
relying on several Hindu texts came to the conclusion that satsangis were Hindus and the act
merely aimed to bring about social equality and that the religious rights of the people werent
infringed upon. There are few other cases in which the judiciary has used essential religious
function as a tool to bring about social justice. The Apex Court in the case of Seshammal v.
State of T.N.17 held that the hereditary principle of temple priests as void, stating clearly that
the archakas and priests are temple servants and that matters concerning their appointment,
emoluments and the benefits fall within the ambit of secular activities susceptible to
interference by the state. Similarly in A. S. Narayana Deekshitulu v. state of A.
P.18appointment of non-Brahmin as priest in a temple, authorized by law was upheld.
However, there has also been ample criticism on the applicability of the essential religious
functions test. In Acharya Jagdishwaranand Avadhuta v. Commissioner of Police19 and
Commissioner of Police v. Acharya Jagdishwaranand Avadhuta20 the courts upon examining
several religious texts and religious practices of the Amanda Margis, was of the opinion that
the tandava dance was not a part of their essential religious functions and in the process further
narrowed the Essential Religious Functions.
In the Calcutta High Court21 single bench Justice B.P. Banerjee made a commendable
observation which read as If courts started enquiring and deciding the rationality of a
particular religious practice, then there might be confusion and the religious practice would
become what the Courts wished the religious practice to be. This observation made by Justice
Banerjee has been one of the most compelling and powerful criticism of the essential functions
test. The judiciary, at times, have utilised the test to deprive individuals and institutions of the
full enjoyment of the right to religious freedom instead of using the said test to enhance the
same. The test had been widely used to exclude non essential practices from constitutional
protection. The judiciary deployed this extraordinary power by relying on limited religious
texts to define the essential practices. Having assumed the power greater than any religious
leader, they acted as theological authority so as to determine the practices which were essential
for a religion. 22 Taking this into consideration it would not be a conjecture to argue that the
judiciary is resorting to transgression in being the sole decision maker as to whether a certain
act is an essential religious function or not.
CONCLUSION
Secularism in India should be viewed in an expansive approach to provide for all groups and
communities. Indian Secularism should ideally be pluralistic and flexible so as to cater to the
needs of all persons. Attempting to apply secularism in such a manner so as to make all
religious minorities and tribal to fall within the Hindu fold would destroy their identities and
the national aspirations of the Constitution. The Courts evolution of the Essential Religious
Functions test is an interventionist approach. Applying the test has made it convenient for the
Courts to describe a practice as not essentially religious as opposed to stating that it affects
public order, morality or health which would require further proof. It would be a conjecture to
state that the courts havent done justice in compartmentalising the essential religious functions
from the secular acts. In several cases the courts have restrained unethical religious practices
in furtherance of social justice by utilising the essential religious test. However, the conflicting
range of decisions in the case of Anand Marg, questions whether the Judiciary has pushed its
reformist agenda at the expense of religious neutrality.
On conducting a meticulous study of the interpretation of the essential religious functions test
one may come to the conclusion that the Indian Judiciary has been significantly biased and
arbitrary in determining whether a particular act is an essential religious function or a secular
act. The researcher through the course of this essay has observed that the Essential Religious
Functions test has at times been utilized by the judiciary to narrow religious freedom by
resorting to judicial transgression. This throws light on the dire need of a set of flexible
guidelines which would act as a pillar stone in differentiating between an essential religious
function and a secular act in a non arbitrary justice oriented approach.

BIBLIOGRAPHY

LIST OF BOOKS
V. N. Shukla, Constitution Of India, 11th edition, Eastern Book Company, (2011).
Durga Das Basu , Commentary on Constitution of India, (2010).
M.P.Jain, Indian Constitutional Law, 6th edition, vol1 (2010).
P. Ishwara Bhat, Fundamental Rights: A Study of Their Interrelationship,(Eastern Law House
2004).

LIST OF ARTICLES
Sushila Ramaswamy, Impact of Religious Secularism (http://www.epw.in/ 2011)
<http://www.epw.in/system/files/pdf/2011_46/12/Impact_of_Religious_Secularism.pdf>
accessed 15 January 15
Owen, Religion, The Enlightment and the New Global Order. New York: Columbia
University Press. J.M (2010).
Mathew John, Identity and the Social Revolution WORKING PAPER SERIES Centre for the
Study of Law and Governance Jawaharlal Nehru University, New Delhi CSLG/WP/18 On the
Political Sociology of Constitutionalism in Contemporary India (http://www.jnu.ac.in/ 2012)
<http://www.jnu.ac.in/cslg/workingPaper/18-Identity%20(John).pdf> accessed 24 January 15
LIST OF CASES
Adelaide Co. v. Commonwealth 67 Com LR 116
Minersville School District v. Gobitis 84 L Ed 1375: 310 US 586 (1940)
West Virginia State Board of Education v. Barnette, 87 L Ed 1628: 319 US 624 (1942)
Jones v. Opelika 86 L Ed 1619: 316 US 584 (1942)
Murdock v. Pennsylvania 87 L Ed 1293: 319 US 105 (1942)
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshimindra Thirtha Swamiar
of Sri Shirur Mutt, AIR 1954 SC 282
Durgah Committe v. Hussain Ali AIR 1961 SC 1402
Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853
Mohammad Hanif Qureshi v. State of Bihar AIR 1958 SC 731: 1959 SCR 629.
Bira Kishore Deb v. State of Orissa AIR 1964 SC 1501
Sri Adi Visheshwara of Kasji Vishwanath Temple v. State Of U.P. (1997) 4 SCC 606.
Sastri Yagnapurushdasji v. Muldas AIR 1966 SC 1119
Seshammal v. State of T.N AIR 1972 SC 1586
A. S. Narayana Deekshitulu v. State of A. P. AIR 1996 SC 1765
Acharya Jagdishwaranand Avadhuta v. Commissioner of Police (1983) 4 SCC 522
Commissioner of Police v. Acharya Jagdishwaranand Avadhuta (2004) 12 SCC 770
Acharya Jagdishwaranand Avadhuta v. Commissioner of Police AIR 1990, Cal. 336

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Essential Religious Functions Test Judicial Transgression Or Social Justice?

Essential Religious Functions Test Judicial Transgression Or Social

Justice?
On November 17, 2015 By admin

Reigha Yangzom

INTRODUCTION
The Delhi Agricultural Cattle Preservation Act, 1994 imposes a total prohibition on the
slaughter, sale or purchase, transport or export, possession and storage of beef in Delhi. This
legislation was passed primarily due to the fact that the cow is considered to be holy by the
Hindus. The BJP-led Municipal Corporation of Delhi (MCD) cautioned the organisers and
passed a resolution against the serving of beef during the Commonwealth Games 2010.
Eventually, the Delhi government also clarified that no beef would be served during the Games.
The immense controversy over the fact that beef being would be offered in the common wealth
games in the capital city was mainly attributed to the religious sentiments of the Hindus. This
incident throws light on the fact that religious practices have an extensive impact on the Indian
society.
Secularism in India unlike that in most western countries makes no effort to disconnect religion
from the public space in light of the fact that religion in India is recognised as a sociological
phenomenon and also as an ethical system of values.1 In India, the concepts of religion, the
welfare state and secularism are all intertwined. Various religious texts are acknowledged by
the Indian Constitution as a source of law. Taking into consideration the peculiar position that
religion occupies in the Indian Society, this researcher endeavors to examine the role of the
judiciary in interpreting religion and the secular society.

ESSENTIAL RELIGIOUS FUNCTIONS TEST:

The constitution of India under section 252 guarantees to its citizens the right to freely practice
any religion subject to the limitations of public order, health and morality. The Indian
constitution not only guarantees the right to freely practice a religion but it also makes provision
for intervention by state thereby paving a path for a diversified establishment.3 Therefore, it
does not provide protection to any economic, financial, political or other secular activity which
may be affiliated to some with any religious practice but is not an indispensable religious
practise.
It has always been a complicated task to compartmentalise if a particular issue falls under
essential religious function or if it is a secular activity only associated with religion. In order to
demonstrate the predicament in classifying the same one may look into some foreign
judgements.

FOREIGN JUDGEMENTS
In Adelaide Co. V. Commonwealth 4 members of the Jehovahs witnesses5 acting pursuant
to the National Security Regulations 1940, the Government of Australia declared Jehovahs
Witnesses to be prejudicial to the defence of the Commonwealth and to the efficient
prosecution of the war. Police immediately occupied premises of the organisation. The
legality of this was challenged in the high court through a writ petition. The High Court held
that the propagandas of the Jehovahs Witness were political activities and that their religious
freedom was in no way infringed by the National Security Regulations 1940.
Again, in the case of Minersville School District v. Gobitis6 two students were expelled from
the public schools for declining the order to salute the flag as part of a daily school exercise.
These children were Jehovahs Witnesses who were of the belief that saluting the flag was
against their religious practices. The US Supreme Court held that saluting the flag being an
essential gesture of national unity was designed to promote in the minds of children who
attend the common schools an attachment to the institutions of their country and that the
legislation mandating the students to salute the flag did not infringe the right to freedom of
religion.
However, in another case7 the Supreme Court held that compelling students of a public school
to a salute to the national flag infringes upon an individuals intellect and right to choose their
own beliefs. Therefore, such action of the state would violate the liberty of religion.
These haphazard judicial opinions highlights the fact the impediment of integrating the
religious practices which are essential to the religion and those which are merely activities
associated with a religious practice.
In the case of Jones v. Opelika8 the Supreme Court of United States held that that a statute
prohibiting the sale of religious books without a license was constitutional because it only
covered individuals engaged in a commercial activity rather than a religious ritual.
Nonetheless, the Supreme Court retracted from the decision in the above case in Murdock v.
Pennsylvania9 which furthermore encapsulates the juxtaposed position of secular commercial
activities and religious practices. An ordinance had been enacted according to which any
person collecting funds or selling merchandise required a licence. Several Jehovahs Witnesses
who went door-to-door distributing religious literature and soliciting funds were fined and
imprisoned for failing to acquire the license. The Supreme Court declared the license tax
unconstitutional as it applied to activities which were religious and not commercial.

INDIAN JUDGEMENTS
In India, the essential religious functions test emerged as a result of the ambiguity in the case
of Shirur Mutt10 The apex court eliminating the assertion test, in which the only criteria to
prove that a certain case wasnt a secular act was the assertion of a high priest stating the same.
As a replacement to this test, the essential practices test was brought about. In accordance to
this test, only those practices which were integral to the faith obtained exemption from state
intervention. The courts had the autonomy in the matter of deciding as to what rites and
ceremonies are essential religious practices.
In the case of Durgah Committe v. Hussain Ali11 the court held that Articles 25 and 26 provides
only essential and integral parts of religion immunity from state intervention. It also held that
the immunity is provided not only to matters of doctrines or belief; but it extends to acts done
in furtherance of religion such as rituals, observances, ceremonies, modes of worship which
are considered to be fundamental parts of the religious practices. The Court also made an
observation which stated that no immunity would be provided to superstitious, peripheral and
unnecessary religious practices.
Here again, in another case12 the court set up certain guidelines in determining whether a
particular practise is an essential religious function. The court held that in order to determine
whether a particular act constitutes an essential religious function or not reliance needs to
placed on the doctrines and religious texts of that particular religion.
In Mohammad Hanif Qureshi Vs. State of Bihar 13 the court was vested with the task of
deciding whether the prohibition on cow slaughter was in violation of freedom of religion of
the Mohammedans. The petitioners argued that the sacrifice of cow was an essential religious
function on the day of Bakrid. The court after looking at the religious text of the Mohammedans
i.e. the Koran held that it was not an integral part of their religion and hence, it could be
regulated by article 25(2)(a).
The right to freedom of religion is only limited to matters relating to religion. Secular activities
in spite of being related to religion are not protected from interference by the state. However,
it has always been a herculean task neatly compartmentalise as to whether a particular activity
is secular because in certain cases the essential religious activity is inextricably mixed with the
secular activity. The case of Bira Kishore Deb v. State of Orissa14 is an exemplary example of
the same. The petitioners argued that The Sri Jagannath Temple Act, 1954 was in violation of
the freedom to manage its own religious affairs as guaranteed under section 26(b). The court
however, held that Sevapuja comprised of two aspects one of which was concerned with the
materials to be offered in the Sevapuja which was in essence a secular function and the act only
regulated that part of the Sevapuja. In another case15 the Apex court validated a law which
transferred the power to manage the temple to a board of trustees instead of the Pandas. The
court emphasized on the fact that the law only dealt with the secular aspect i.e. administration
of the temple which was inefficient and incompetent and hence, the state in no way infringed
the religious rights of the people.
The intervention of the state in secular matters associated with religion has brought about some
favourable and positive judgements. In Sastri Yagnapurushdasji v. Muldas16 Bombay Hindu
Places Of Worship Act was passed which permitted untouchables to enter and worship in the
temples. Here, the satsangi sect challenged the constitutional validity of that Act prohibiting
their practice of not allowing untouchables to enter temples. They argued that they were not
part of the Hindu religion and they were exempted from this legislation. The Supreme Court
relying on several Hindu texts came to the conclusion that satsangis were Hindus and the act
merely aimed to bring about social equality and that the religious rights of the people werent
infringed upon. There are few other cases in which the judiciary has used essential religious
function as a tool to bring about social justice. The Apex Court in the case of Seshammal v.
State of T.N.17 held that the hereditary principle of temple priests as void, stating clearly that
the archakas and priests are temple servants and that matters concerning their appointment,
emoluments and the benefits fall within the ambit of secular activities susceptible to
interference by the state. Similarly in A. S. Narayana Deekshitulu v. state of A.
P.18appointment of non-Brahmin as priest in a temple, authorized by law was upheld.
However, there has also been ample criticism on the applicability of the essential religious
functions test. In Acharya Jagdishwaranand Avadhuta v. Commissioner of Police19 and
Commissioner of Police v. Acharya Jagdishwaranand Avadhuta20 the courts upon examining
several religious texts and religious practices of the Amanda Margis, was of the opinion that
the tandava dance was not a part of their essential religious functions and in the process further
narrowed the Essential Religious Functions.
In the Calcutta High Court21 single bench Justice B.P. Banerjee made a commendable
observation which read as If courts started enquiring and deciding the rationality of a
particular religious practice, then there might be confusion and the religious practice would
become what the Courts wished the religious practice to be. This observation made by Justice
Banerjee has been one of the most compelling and powerful criticism of the essential functions
test. The judiciary, at times, have utilised the test to deprive individuals and institutions of the
full enjoyment of the right to religious freedom instead of using the said test to enhance the
same. The test had been widely used to exclude non essential practices from constitutional
protection. The judiciary deployed this extraordinary power by relying on limited religious
texts to define the essential practices. Having assumed the power greater than any religious
leader, they acted as theological authority so as to determine the practices which were essential
for a religion. 22 Taking this into consideration it would not be a conjecture to argue that the
judiciary is resorting to transgression in being the sole decision maker as to whether a certain
act is an essential religious function or not.

CONCLUSION
Secularism in India should be viewed in an expansive approach to provide for all groups and
communities. Indian Secularism should ideally be pluralistic and flexible so as to cater to the
needs of all persons. Attempting to apply secularism in such a manner so as to make all
religious minorities and tribal to fall within the Hindu fold would destroy their identities and
the national aspirations of the Constitution. The Courts evolution of the Essential Religious
Functions test is an interventionist approach. Applying the test has made it convenient for the
Courts to describe a practice as not essentially religious as opposed to stating that it affects
public order, morality or health which would require further proof. It would be a conjecture to
state that the courts havent done justice in compartmentalising the essential religious functions
from the secular acts. In several cases the courts have restrained unethical religious practices
in furtherance of social justice by utilising the essential religious test. However, the conflicting
range of decisions in the case of Anand Marg, questions whether the Judiciary has pushed its
reformist agenda at the expense of religious neutrality.
On conducting a meticulous study of the interpretation of the essential religious functions test
one may come to the conclusion that the Indian Judiciary has been significantly biased and
arbitrary in determining whether a particular act is an essential religious function or a secular
act. The researcher through the course of this essay has observed that the Essential Religious
Functions test has at times been utilized by the judiciary to narrow religious freedom by
resorting to judicial transgression. This throws light on the dire need of a set of flexible
guidelines which would act as a pillar stone in differentiating between an essential religious
function and a secular act in a non arbitrary justice oriented approach.

BIBLIOGRAPHY

LIST OF BOOKS
V. N. Shukla, Constitution Of India, 11th edition, Eastern Book Company, (2011).
Durga Das Basu , Commentary on Constitution of India, (2010).
M.P.Jain, Indian Constitutional Law, 6th edition, vol1 (2010).
P. Ishwara Bhat, Fundamental Rights: A Study of Their Interrelationship,(Eastern Law House
2004).
LIST OF ARTICLES
Sushila Ramaswamy, Impact of Religious Secularism (http://www.epw.in/ 2011)
<http://www.epw.in/system/files/pdf/2011_46/12/Impact_of_Religious_Secularism.pdf>
accessed 15 January 15
Owen, Religion, The Enlightment and the New Global Order. New York: Columbia
University Press. J.M (2010).
Mathew John, Identity and the Social Revolution WORKING PAPER SERIES Centre for the
Study of Law and Governance Jawaharlal Nehru University, New Delhi CSLG/WP/18 On the
Political Sociology of Constitutionalism in Contemporary India (http://www.jnu.ac.in/ 2012)
<http://www.jnu.ac.in/cslg/workingPaper/18-Identity%20(John).pdf> accessed 24 January 15
LIST OF CASES
Adelaide Co. v. Commonwealth 67 Com LR 116
Minersville School District v. Gobitis 84 L Ed 1375: 310 US 586 (1940)
West Virginia State Board of Education v. Barnette, 87 L Ed 1628: 319 US 624 (1942)
Jones v. Opelika 86 L Ed 1619: 316 US 584 (1942)
Murdock v. Pennsylvania 87 L Ed 1293: 319 US 105 (1942)
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshimindra Thirtha Swamiar
of Sri Shirur Mutt, AIR 1954 SC 282
Durgah Committe v. Hussain Ali AIR 1961 SC 1402
Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853
Mohammad Hanif Qureshi v. State of Bihar AIR 1958 SC 731: 1959 SCR 629.
Bira Kishore Deb v. State of Orissa AIR 1964 SC 1501
Sri Adi Visheshwara of Kasji Vishwanath Temple v. State Of U.P. (1997) 4 SCC 606.
Sastri Yagnapurushdasji v. Muldas AIR 1966 SC 1119
Seshammal v. State of T.N AIR 1972 SC 1586
A. S. Narayana Deekshitulu v. State of A. P. AIR 1996 SC 1765
Acharya Jagdishwaranand Avadhuta v. Commissioner of Police (1983) 4 SCC 522
Commissioner of Police v. Acharya Jagdishwaranand Avadhuta (2004) 12 SCC 770
Acharya Jagdishwaranand Avadhuta v. Commissioner of Police AIR 1990, Cal. 336

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Home Indian Penal Code IPC Law of Crime Offences Relating to Religion (Section 295 to Section 298 of the Indian Penal Code
1860)

Offences Relating to Religion (Section 295 to Section 298 of the Indian

Penal Code 1860)

Introduction :

Chapter XV of the Indian Penal Code 1860 deals with offences relating to religion. There are five

Sections in this chapter Section 295, 295A, 296, 297 and 298.

Offenses prescribed under chapter XV of the Indian Penal Code 1860 can be classified into :

(i) Damaging or defiling a place of worship or sacred object with intend to insult the religion of a class of

persons (Section 295)

(ii) Trespassing in any place of sepulture or where funeral ceremonies are performed (Section 297

I.P.C)

(iii) Disturbing religious assembly (Section 296 I.P.C)

(iv) Outraging or wounding the religion

(Must Read... What is religion under the constitution of India )

1) Injuring or defiling place of worship, with intent to insult the religion of any class (Section

295)

Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of

persons with the intention of thereby insulting the religion of any class of persons or with the knowledge

that any class of persons is likely to consider such destruction, damage or defilement as an insult to

their religion, shall be punished with imprisonment of either description for a term which may extend to

two years, or with fine, or with both.

Ingredients

To convict a person under section 295 of the Indian Penal Code, following ingredients must exist :

(i) The accused must do such an act with intention of insulting the religion of any person, or with the

knowledge that any class of person is likely to consider such destruction, damage or defilement as an

insult to their religion.

(ii) accused must destroy, damage or defile any place of worship or any object which is called as sacred

by any class of person.

Mere defilement of a place or worship is not an offence under section 295 without the requisite mens

rea. The essence of offence is mens rea, in addition to which there must be an act of destruction ,

damage or defilement of place of worship. The common examples of places of worship are Temples,

Churches, Gurudwaras, Mosques, Vihar etc

2) Deliberate and malicious acts intended to outrage religious feelings of any class by

insulting its religion or religious beliefs (Section 295A) :

Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of

citizens of India, by words, either spoken or written, or by signs or by visible representations or

otherwise] insults or attempts to insult the religion or the religious beliefs of that class, shall be

punished with imprisonment of either description for a term which may extend to three years, or with
fine, or with both.

Ingredients :

To invoke Section 295A of the Indian Penal code, following ingredients must exist -

(i) The accused must insult or make an attempt to insult the religion or religious beliefs of any class of

persons.

(ii) Insult must be with the deliberate and malicious intention of outraging the religious beliefs of any

class of citizens of India.

(iii) The said insult must be by words, either spoken or written or by signs or by visible representation or

otherwise.

Distinction between Section 295 and section 295A of the Indian penal code

Both Sections, Section 295 and section 295Adeals with the offence of insulting religious feelings

of any class of persons. But under Section 295 offence is committed by a certain act such as destruction

damage to any place of worship or any object held sacred. On the other hand under Section 295A of the

Indian Penal Code the offence is committed by words spoken or written, or by signs or by visible

representation.

3) Disturbing religious assembly (Section 296)

Whoever voluntarily causes disturbance to any assembly lawfully engaged in the performance of

religious worship, or religious ceremonies, shall be punished with imprisonment of either description for

a term which may extend to one year, or with fine, or with both.

Ingredients :

(i) There must be a voluntarily disturbance caused;

(ii) The disturbance must be caused to an assembly engaged in religious worship;

(iii) The assembly must be lawfully engaged in such worship, ceremonies.

4) Trespassing on burial places, etc (Section 297)

Whoever, with the intention of wounding the feelings of any person, or of insulting the religion of any

person, or with the knowledge that the feelings of any person are likely to be wounded, or that the

religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or

on any place of sepulture, or any place set apart for the performance of funeral rites or as a depository

for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any

persons assembled for the performance of funeral ceremonies, shall be punished with imprisonment of

either description for a term which may extend to one year, or with fine, or with both.

Ingredients :

To convict person under Section 297 of the Indian Penal code, following ingredients must be proved -

(i) The accused committed the act with intention of wounding the feelings or insulting the religion of any

person or with the knowledge that the feelings or religion of any person were likely to be wounded.

(ii) The accused committed Trespass, or offered any indignity to a human corpse, or caused disturbance

to the person or persons assembled for funeral ceremonies.

(iii) The place trespassed was either ; a place or worship or a place of sculpture or a place set apart for

the performance of funeral rites, or a place set apart as a depositor for the remains of the dead body.

5) Uttering words, etc., with deliberate intent to wound religious feelings (Section 298)

Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any

word or makes any sound in the hearing of that person or makes any gesture in the sight of that person

or places any object in the sight of that person, shall be punished with imprisonment of either

description for a term which may extend to one year, or with fine, or with both.
 To hold person liable under Section 298 of the Indian Penal Code the following ingredients must be

present

i) The accused uttered any word or made any sound in the hearing of, or made any gesture in the

presence of that person or placed an object in the sight of the person;

ii) The accused did so intentionally and deliberately ; and

iii) His intention was to wound the religious feelings of any other persons.

See also

1) What is religion under the constitution of India ?

2) Religious freedom under the Constitution of India (Article 25 to 28 ).

3) Wrongful restraint under the Indian Penal Code

4) Difference between Rash and Negligence act

5) Rights of Minorities to establish and manage educational institutions under the

Constitution of India

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Extortion : Offences against property (Indian Penal Code 1860)

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