Freedom as to attendance at religious instruction or religious worship in certain educational institutions

Article 22, Draft Constitution of India 1948

(1) No religious instruction shall be provided by the State in any educational institution wholly maintained out of State funds:

Provided that nothing in this clause 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.

(2) 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.

(3) Nothing in this article shall prevent any community or denomination from providing religious instruction for pupils of that community or denomination in an educational institution outside its working hours.

Article 28, Constitution of India 1950

(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.

Draft Article 22 (Article 28 of the Constitution of India 1950) was debated in the Constituent Assembly on 7 December 1948. It prohibited fully State-funded educational institutions from providing religious instruction to students. However, it allowed the delivery of such instruction in special circumstances.

Many members opposed the Draft Article and moved amendments. Some of their key arguments included: First, religious education in State institutions delivered with the consent of students/parents did not violate secularism. Second, in a bid to protect the right of minorities to receive instruction on their respective religions, the Draft Article prevented the same right of the majority community. And third, there was no need for blanket ban on religious education in State institutions, all that the Draft Article had to ensure was that no one is forced to receive religious instruction without their consent.

The phrase ‘wholly funded by the State’ particularly annoyed some members. One Member pointed out that an institution that received a miniscule private donation, might fashion itself as not being ‘wholly funded by the State’–a situation that was bound to generate conflict.

Coming in support of the Draft Article, a Member moved an amendment to extend the ban on religious instruction to all institutions–not just educational–to protect religious minorities from the majoritarian religious propaganda.

The Drafting Committee Chairman rejected most amendments and justified the Draft Article on three grounds: First, allowing religious instruction violated Draft Article 21 which stated that public funds could not be used for the benefit of one particular community. Second, considering the sheer number of religious communities in India, the task of providing religious education to each community would be a near impossible job for the State. And third, since the teachings of one religion could be against those of another, allowing for religious instruction within State institutions could lead to conflict and controversy within such spaces.

One Member asked the Drafting Committee Chairman whether the teaching of Vedas and Upanishads in State-funded Sanskrit colleges would fall within religious instruction. The Chairman said no, reasoning that religious instruction which was dogma, was distinct from the research/study of religion.

When it came to voting, the Assembly accepted only two amendments that aimed to clarify and remove inconsistencies within the Draft Article. The Draft Article as amended by the Assembly was adopted on 7 December 1948.