– Dr. M. Iqbal Siddiqui
The framing of the Indian Constitution was a momentous task that required balancing fundamental rights, religious freedoms, and state authority. Among the most debated aspects were the rights of religious and minority educational institutions. How much autonomy should religious groups have in managing their own institutions? Should the state regulate religious education? These were not just abstract questions but issues that would define India’s secular framework.
Two key provisions emerged from these discussions – Article 26, which grants religious denominations the right to establish and manage institutions, and Article 28, which governs religious instruction in educational institutions. These articles were shaped by intense debates in the Constituent Assembly, where members sought to create a secular yet inclusive India. The tension between religious freedom and state oversight continues to be relevant in contemporary discussions on secularism and minority rights.
Historical Context: Why These Debates Were Crucial
India’s diverse religious landscape made it imperative to address the rights of religious minorities in education and institutional management. Under British rule, many religious and linguistic communities had established their own institutions to preserve their cultural identity. With independence, there was concern about whether these institutions would retain autonomy or come under state control.
The framers of the Constitution faced a complex challenge: ensuring that religious communities could manage their own affairs while preventing exclusionary practices and communal divisions. They also had to define secularism in a way that upheld religious neutrality without erasing religious identities.
The Debate on Article 26: Rights of Religious Denominations
Draft Article 20, which later became Article 26, was central to the discussion on religious autonomy. It stated:
“Every religious denomination or any section thereof shall have the right –
(a) To establish and maintain institutions for religious and charitable purposes;
(b) To manage its own affairs in matters of religion;
(c) To own and acquire movable and immovable property; and
(d) To administer such property in accordance with law.”
While this provision aimed to protect religious autonomy, it raised concerns about unchecked powers of religious institutions. Dr. B.R. Ambedkar, a key architect of the Constitution, insisted that such rights must be subject to public order, morality, and health. He proposed an amendment inserting these conditions, ensuring that religious institutions could not operate outside the bounds of national interest.
Other members, like Naziruddin Ahmad, suggested that the state should retain the power to enact laws for maintaining public order and morality. Lokanath Misra argued that religious groups should not only have the right to establish institutions but also to administer them freely, as long as they did not violate public morality.
Another significant intervention came from Syed Abdur Rouf, who proposed adding “educational purposes” to the list of institutional rights. This was rejected, as the Assembly decided that minority educational rights would be addressed separately.
Outcome: Article 26 was passed with Ambedkar’s amendment, ensuring that religious institutions could function independently but with reasonable state oversight.
The Debate on Article 28: Religious Instruction in Educational Institutions
Draft Article 22, which later became Article 28, dealt with the contentious issue of religious education in schools. The original draft stated:
- No religious instruction shall be provided by the State in any educational institution wholly maintained out of State funds.
- 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 or worship without consent.
- Nothing in this article shall prevent any community from providing religious instruction in educational institutions outside working hours.
This provision triggered fierce debates. Mohammed Ismail Sahib argued that religious instruction should not be entirely banned from state-funded schools, as it was essential for moral development. He cited examples of European secular states that allowed religious education on an optional basis.
However, Shibban Lal Saxena and K.T. Shah warned that allowing any form of religious instruction in publicly funded institutions could lead to communal divisions. Shah proposed inserting “or partly” into Clause 1, ensuring that institutions receiving even partial state funding could not impart religious education. This amendment was rejected, leaving room for aided institutions to provide religious instruction under specific conditions.
Dr. Ambedkar, in a clarifying amendment, removed the words “by the State” to ensure that no institution wholly maintained by state funds – whether run by the government or a private body – could conduct religious instruction.
Outcome: Article 28 upheld a strict separation of religion and state in publicly funded institutions while allowing private institutions to offer religious education under certain conditions.
Balancing Faith and Law: What the Constituent Assembly Taught Us
- India’s Secularism is Accommodative, Not Absolute: Unlike the West, where secularism means a complete separation of religion and state, India adopted a model that allows religious institutions autonomy while subjecting them to reasonable regulation.
- Balance Between Autonomy and Oversight: While minority communities have the right to establish and administer institutions, the state retains the power to ensure these institutions function within legal and ethical frameworks.
- The Debate on Religious Education is Unresolved: The issue of religious instruction in schools remains a point of contention, with periodic discussions on the role of madrasas, church-run schools, and moral education in public institutions.
- Ambedkar’s Pragmatism: He recognised the need to protect religious freedom but ensured that religious institutions could not become independent power centres beyond state scrutiny.
Defending Minority Educational Autonomy
The right of religious and linguistic minorities to establish and administer educational institutions is not merely a privilege but a fundamental necessity in a pluralistic democracy like India. Article 30 of the Constitution explicitly grants minorities the right to establish and manage their own institutions without undue interference. However, attempts to dilute these rights through excessive regulation threaten the essence of India’s secular commitment.
Minority institutions serve as critical spaces for preserving cultural identities and promoting educational empowerment. These institutions must have the freedom to design curricula that reflect their unique heritage while adhering to national educational standards. The state must act as a facilitator, not a controller, ensuring that these institutions are not subjected to arbitrary restrictions that hinder their growth.
Any attempt to curtail the autonomy of minority educational institutions under the guise of regulation must be resisted. A truly inclusive democracy thrives when all communities – majority and minority alike – can educate their children in an environment that respects their values while embracing constitutional ideals. The Indian state must safeguard this right with unwavering commitment.
Religious Freedom Under Strain
The inclusion of Articles 26 and 28 in the Indian Constitution was not a mere legal exercise but a considered attempt to reconcile religious freedoms with the imperatives of a modern democratic state. The Constituent Assembly, while committed to secular governance, recognised that India’s pluralistic character necessitated safeguards against both religious majoritarianism and excessive state control. The objective was not to erase religion from public life but to ensure that it functioned within a framework of constitutionalism.
This delicate balance is now under threat. The increasing intrusion of the state into minority educational institutions, the growing tendency to link religious instruction with allegations of forced conversions, and the politicisation of faith-based charities represent a departure from the constitutional vision. Legislative interventions such as the Waqf (Amendment) Bill 2024, coupled with heightened surveillance of madrasas and minority-run schools, reflect an overreach that risks diluting institutional autonomy and undermining the foundational principles of religious freedom.
The pattern is evident: state oversight is expanding, seemingly in the interest of national security or social reform, but in effect, it imposes disproportionate constraints on institutions historically protected under constitutional provisions. The portrayal of madrasas as hubs of ‘anti-national’ activity, restrictions on foreign funding for religious organisations, and regulatory burdens on faith-based educational institutions point to an evolving jurisprudence that is increasingly at odds with the framers’ intent. At stake is not merely the autonomy of religious institutions but the very fabric of India’s secular order. The Constituent Assembly debated these tensions and devised a constitutional structure that accommodated religious pluralism while defining the limits of state intervention. However, the contemporary trajectory suggests an erosion of these safeguards, with the state assuming a role that extends beyond reasonable oversight into the realm of ideological control.
Preserving the Constitutional Balance
Protecting this constitutional equilibrium requires sustained engagement from civil society, legal scholars, and community organisations. The need of the hour is to reassert the constitutional guarantees enshrined in Articles 26 and 28 through legal advocacy, policy discourse, and public mobilisation. It is imperative to challenge legislative and executive actions that disproportionately target religious minorities and to foster a broader dialogue on the role of faith in a secular democracy. Educational initiatives promoting interfaith understanding and institutional resistance against unwarranted state control are essential to preserving India’s commitment to pluralism.
The current moment is a test of India’s constitutional integrity. Upholding the principles of religious freedom against encroachments by the state is not just a defence of minority rights – it is a defence of the democratic ethos itself. The balance envisioned by the framers must not be allowed to tilt in favour of state hegemony at the cost of fundamental freedoms.
[The writer is Assistant Secretary, Jamaat-e-Islami Hind]
