Article 28 of the Indian Constitution is a crucial part of the Fundamental Rights, specifically falling under the Right to Freedom of Religion (Articles 25-28). It addresses the relationship between the State, educational institutions, and religious practices, aiming to maintain the secular character of the State by regulating religious instruction and worship in educational settings, especially those supported by public funds. It seeks to protect individuals, particularly students, from being compelled to participate in religious activities against their will.
Original Text
28. Freedom as to attendance at religious instruction or religious worship in certain educational institutions
(1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds.
(2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.
(3) No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.
Detailed Explanation
Article 28 lays down specific provisions concerning religious instruction and worship in educational institutions based on their nature and relationship with the State:
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Educational Institutions Wholly Maintained by the State (Clause 1): This clause imposes an absolute prohibition on providing any religious instruction in educational institutions that are entirely funded by the State. The rationale behind this is that public funds, contributed by people of all faiths and none, should not be used to promote or propagate any particular religion through formal education. This reflects the principle of secularism, where the State remains neutral in religious matters and does not identify with, patronize, or support any specific religion. The term “religious instruction” here generally implies the teaching of tenets, rituals, and practices of a particular religion with the aim of religious education or indoctrination.
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Educational Institutions Administered by the State but Established Under Trusts (Clause 2): This clause carves out an exception to the absolute prohibition in Clause (1). It applies to institutions that are administered by the State (meaning the State manages their day-to-day functioning, administration, etc.) but were established under a specific endowment or trust deed that explicitly mandates the imparting of religious instruction. In such specific cases, the State is obligated to allow religious instruction as per the terms of the trust, even though it administers the institution. The State’s role here is more like that of a trustee executing the will of the founder, rather than establishing its own educational policy regarding religion. However, Clause (3) still applies to these institutions if they are recognised by the State or receive State aid, ensuring individual consent is required.
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Educational Institutions Recognized by or Receiving Aid from the State (Clause 3): This clause deals with institutions that are not wholly maintained by the State, but are either recognized by the State (e.g., for affiliation, degrees, etc.) or receive financial aid from the State. While these institutions are not prohibited from imparting religious instruction or conducting religious worship, the attendance of any person at such instruction or worship cannot be made compulsory. Attendance is subject to the consent of the individual student. If the student is a minor, the consent of their guardian is mandatory. This provision safeguards the freedom of conscience of students and their guardians, ensuring they are not forced to participate in religious activities that may not align with their beliefs. This clause balances the autonomy of the institution with the religious freedom of the individuals attending it.
The overall scheme of Article 28 differentiates between various types of educational institutions based on their funding source and relationship with the State, imposing different levels of restriction or conditions regarding religious instruction and worship to uphold the principle of secularism and protect individual religious freedom.
Detailed Notes
- Article 28 is part of the Right to Freedom of Religion (Articles 25-28) in Part III (Fundamental Rights) of the Indian Constitution.
- It regulates religious instruction and worship in educational institutions.
- It aims to maintain the secular character of the State in the field of education.
- Clause (1):
- Prohibits any religious instruction.
- Applies to educational institutions wholly maintained out of State funds.
- This is an absolute prohibition for such institutions.
- Reflects the principle that the State should not use public money to promote a particular religion through education.
- Clause (2):
- Provides an exception to Clause (1).
- Applies to institutions administered by the State.
- But these institutions must have been established under an endowment or trust.
- The terms of the endowment or trust must require religious instruction to be imparted.
- In such specific cases, religious instruction is permissible.
- The State acts as an administrator fulfilling the terms of the trust.
- Clause (3):
- Applies to institutions recognised by the State or receiving aid out of State funds.
- Does not prohibit religious instruction or worship in these institutions.
- Requires consent for attending religious instruction or worship.
- Consent of the person attending is needed if they are an adult.
- Consent of the guardian is needed if the person attending is a minor.
- Attendance cannot be made compulsory for anyone in these institutions if they or their guardian have not consented.
- This protects the freedom of conscience and religion of individuals.
- Distinction between ‘religious instruction’ (teaching tenets for religious education) and ‘study of religions’ (academic, objective study of various religions). The latter is generally permissible even in State-funded institutions as it contributes to secular education and understanding, as clarified by the Supreme Court (Aruna Roy v. Union of India, 2002).
- Article 28 read with Article 30(1) implies that minority educational institutions (established under Article 30) have the right to impart religious instruction, but if they seek State recognition or aid, they must comply with the consent requirement of Article 28(3) regarding compulsory attendance at such instruction or worship for students belonging to other communities.
Additional Comments
- Article 28 is a key constitutional provision reinforcing India’s commitment to secularism by regulating the interface of religion and education, particularly in institutions supported by the State.
- The distinction between institutions wholly maintained, administered under trusts, and merely recognized/aided by the State is crucial for understanding the varying degrees of restriction on religious instruction.
- The requirement of consent in Clause (3) is a vital safeguard for individual freedom of conscience and the right not to be compelled to participate in religious activities against one’s will or the will of one’s guardian.
- The judicial interpretation distinguishing between ‘religious instruction’ and ‘study of religions’ is significant, allowing for comparative religion or religious studies as part of a secular curriculum aimed at fostering understanding.
- This article complements other freedom of religion articles (25-27) and interacts with minority rights under Article 30, shaping the landscape of religious freedom in the educational sector.
Summary
Article 28 of the Indian Constitution restricts religious instruction and worship in educational institutions. It strictly prohibits religious instruction in institutions wholly funded by the State. An exception exists for State-administered institutions established under trusts requiring religious instruction. For institutions recognized by or receiving aid from the State, attendance at religious instruction or worship is not compulsory and requires the consent of the student or their guardian if the student is a minor. The article thus aims to balance the State’s secular nature with the right to religious freedom, preventing forced participation in religious activities in state-supported educational settings.