Religious Freedom v/s Neutrality in matters of Faith: An overview Religious neutrality in public spaces: India's courts repeatedly balance religious freedom with the state's duty to uphold secularism
07, Jan 2025 | CJP Legal Research Team
The issue of illegal religious structures occupying public spaces and government land has long been a contentious one, bringing into question the balance between religious freedom and the state’s duty to preserve neutrality, secularism. The famous lines from the great poet Late Vayalar Ramavarma’s Malayalam song poignantly capture this conflict: “Man created religions, Religions created God, Man, religions and God together divided the earth and divided the heart. We became Hindus, Muslims, Christians, when we meet, we stopped recognizing each other. The earth became a madhouse.” These words echo the dangers of religious divisions that hinder unity and equal access to public spaces.
Violent upheavals including intra-community violence, even targeted pogroms have also witnessed this issue raising its head. The surge in not just identity politics but a majoritarian slant in wings of the Indian state have seen this visual manifestation –police jeeps and police stations with idols and or temples within, government offices observing religious ceremonies. Even court premises have not been immune to this trend.
What have India’s constitutional courts said on the issue? Has there been a consensus and unequivocal upholding of non-partisan neutrality? This legal resource examines the jurisprudence around this question.
In the case of Noorul Islam Samskarika Sangam Thottekkad v. District Collector, Malappuram, [2022 (5) KHC 595], the Kerala High Court emphasised this perspective, adding that “religion is the creator of religious places,” a timely reflection on the growing issue of illegal encroachments on government land. Further reinforcing this, the Court in Balakrishna Pillai v. Union of India, [2021 (4) KHC 282], beautifully articulated, “The God almighty is omnipresent… for the development of the National Highway, if the religious institutions are affected, God will forgive us. God will protect the petitioners, the authorities, and also the author of this judgment. God will be with us.” These cases is a reminder of the need to preserve public spaces for the common good, free from religious encroachments that threaten secular harmony.
Beyond encroachments, there is also the issue of maintaining the secular nature of the state by ensuring that religious activities do not take place within state-maintained institutions like police stations, government offices, or other public service entities.
No illegal religious construction on government land: Kerala High Court
On May 27, 2024, the Kerala High Court delivered a significant judgment emphasising the need to preserve religious harmony by preventing the construction of illegal religious structures on government land. Justice P.V. Kunhikrishnan, in his ruling, asserted that the construction of such structures, irrespective of religious affiliation—whether Hindu, Muslim, Christian, or any other—would not be permitted as it could lead to religious disharmony in the state. The Court highlighted the importance of the Preamble of the Indian Constitution, specifically the principle of a secular state, and noted that while religious freedom is a fundamental right, it does not extend to the encroachment of public land for religious purposes.
Justice Kunhikrishnan stressed Kerala’s unique position as a “God’s Own Country” with a high population density and a diverse religious landscape. The Court expressed concern that allowing religious structures to be erected on government land could spark disputes and law-and-order problems. He further pointed out that the government is focused on distributing land to landless individuals, and such land cannot be misused for religious purposes. By emphasising the need for communal harmony, the Court directed the identification and removal of unauthorised religious structures on government property, reinforcing the secular ideals enshrined in India’s Constitution.
The Judgement of Kerala High Court dated 27.05.2024 can be read here:
MP HC seeks list of temples and other religious structures within police stations
On December 16, 2024 the Jabalpur bench of the Madhya Pradesh High Court directed the state government to provide a detailed list of temples and other religious structures built within police station premises across the state. Chief Justice Suresh Kumar Kait, who presided over the hearing, ordered the government to submit the requested information within seven days. The court also sought details on the dates these structures were constructed and the specific orders under which they were established.
The petition, filed by advocate Satish Chandra Verma, challenges the legality of religious structures within police stations, arguing that such constructions violate the secular principles enshrined in the Indian Constitution. The court expressed dissatisfaction with the government’s vague response and made it clear that only precise and factual information would be accepted. It also emphasized the need for detailed records, including the legal legitimacy and orders authorizing the construction of these religious sites.
The petition contends that these constructions violate both Article 14 (Right to Equality) and Article 25 (Right to Freedom of Religion) of the Constitution. The petitioner argues that using state property for religious purposes undermines India’s secular framework. The next hearing is scheduled for January 6, 2025, by which time the government directed to present all relevant documents. Advocate Verma remarked, “This issue challenges the core principles of the Constitution, and we hope the High Court will take decisive action.” As per a report in Live Law.
The order of MP High Court dated 16.12.2024 can be read here:
The issue raised in the petition is of significant constitutional importance, as it challenges the presence of religious structures within police station premises, questioning their alignment with India’s secular principles. The Madhya Pradesh High Court’s scrutiny highlights concerns over the use of state property for religious purposes, potentially undermining the secular nature of the state, as guaranteed by the Constitution. This case touches on the delicate balance between religious freedom and the state’s duty to maintain neutrality. It also raises questions about the potential violation of citizens’ right to equality and freedom of religion under Articles 14 and 25.
MP High Court temporarily stops temple construction in police stations
On November 4, 2024, the Madhya Pradesh High Court’s principal bench in Jabalpur also issued a significant directive banning the construction of temples on police station premises, igniting a debate on religious structures within state institutions. Led by Chief Justice Suresh Kumar Kaith, the bench issued notices to senior state officials, including Chief Secretary Anurag Jain, Director General of Police Sudhir Saxena, and the Jabalpur district administration, seeking explanations on how religious structures were being erected on government property. This practice potentially contradicted the secular framework of the Indian Constitution. Notices were also sent to the Home Department, Urban Administration Department, and the Station House Officers (SHOs) of four Jabalpur police stations—Civil Lines, Vijay Nagar, Madan Mahal, and Lord Ganj—where temples stood.
The order of MP High Court 04.11.2024 can be read here:
In 2006, Gujarat High Court ordered removal of religious structures upon public spaces
In year 2006, the Gujarat High Court, prompted by a news report in The Times of India (Ahmedabad Edition, May 2, 2006), which revealed that 1,200 temples and 260 Islamic shrines had encroached upon public spaces, took suo moto action. The High Court on May 2, 2006, issued an interim order directing the Gujarat government to take immediate steps to remove religious structures from public spaces without discrimination and to submit a report on the progress.
In response, the Union of India appealed to the Supreme Court, arguing that the interim direction issued by the Gujarat High Court resembled a final order, which could only be made after hearing all parties involved. The Supreme Court stayed the implementation of the Gujarat High Court’s order on May 4, 2006. Subsequently, the Additional Solicitor General (ASG) informed the Supreme Court that the central government, after consulting with the concerned state secretaries, would seek a consensual approach to address similar issues nationwide and requested time to do so.
The matter returned to the Supreme Court on July 31, 2009, when ASG Gopal Subramanian filed an affidavit. He stated that no religious structures—whether temples, churches, mosques, or gurudwaras—would be allowed on public streets or public spaces.
However, this matter is yet to be decided by the Gujarat High Court’s division bench, and is listed for January 2, 2025 for hearing.
Home Secretary informed the Union that no such construction is permitted
Notably, during the hearing of this case before the Supreme Court, the then Solicitor General of India, Gopal Subramanian submitted letters dated September 19 and September 23, 2009, from the Home Secretary, which were addressed directly to the Solicitor General of India. The content of letter reads as under:
“I had taken a meeting with the Chief Secretaries of the States on 17.09.2009 with a view to evolve consensus on the problem of encroachment of public spaces by religious structures. I am glad to report that after the meeting, the following consensus emerged: –
- No unauthorised construction of any religious institution namely, temple, church, mosque or gurudwara, etc. shall be permitted on public street/public space.
- (ii) In respect of unauthorised constructions of any religious nature which has taken place in the past, the State Governments would review the same on a case by case basis and take appropriate steps. This will be done as expeditiously as possible.”
When the Supreme Court says ‘no’ to religious structure within public spaces
The matter initially revolved around the issue of illegal religious structures encroaching upon public spaces in Gujarat. However, recognising the far-reaching implications and potential consequences of the case, the Supreme Court took a significant step and impleaded all states and Union Territories as respondents in the petition. The Registry was directed to issue notices to all states and Union Territories within three days. Additionally, the Union of India was instructed to supply the entire set of papers to all standing counsel representing state governments and Union Territories.
Subsequently, on September 29, 2009, the division bench of the Supreme Court, consisting of Justices Dalveer Bhandari and Dr. Mukundakam Sharma, issued an important directive. The Court ordered that state governments and Union Territories review existing unauthorised religious constructions on a case-by-case basis and take prompt action to resolve the issue. Furthermore, as an interim measure, the Court mandated that “no unauthorised construction shall be carried out or permitted in the name of a Temple, Church, Mosque, or Gurudwara on public streets, public parks, or other public places.”
The order of Supreme Court dated 29.09.2009 can be read here:
Is encroachment in the name of religion not questionable?
Encroachment in the name of religion is a contentious issue because it raises fundamental questions about the role of the state in regulating public spaces and maintaining a secular environment. While religious freedom is guaranteed by the Constitution, it is crucial to ask whether encroaching upon public spaces for religious purposes is justified. The state, as the custodian of public order, has the constitutional duty to ensure that its institutions remain separate from religious or worship activities. This separation is key to maintaining a secular state, where public resources and spaces should not be monopolized by any religious activity.
The question arises: should religious activities be allowed to take over public spaces that are meant for the common use of all citizens? If religious structures are permitted to encroach upon public land, it undermines the principle of equal access to space for all citizens, regardless of their beliefs. Furthermore, it puts the state in the precarious position of endorsing religious activities in a way that may conflict with its duty to maintain neutrality and equal treatment for all religions. The state must ensure that public spaces remain accessible, inclusive, and free from religious encroachment.
When Rajasthan ADJ bans temple construction on police station premises
Rajasthan’s Additional Director General of Police (Police Housing), A. Ponnuchami, issued a directive on October 25, 2021, prohibiting the construction of temples within police stations and their surrounding areas. This move was aims to uphold the religious neutrality of state institutions and prevent religious encroachment in public space
Ponnuchami highlighted that over the years, various police departments had constructed religious places of worship, violating the Rajasthan Religious Buildings and Public Places Act of 1954. Under this law, religious structures cannot be built in public spaces, including government buildings and parks, without approval from the District Collector and local authorities. The directive was seen as a necessary step to restore adherence to the law and maintain the neutrality of public institutions.
Rajasthan High Court dismissed the PIL against ADJ order banning temple construction
Subsequently, the order faced legal challenge in the Rajasthan High Court. On November 11, 2021, the Rajasthan High Court dismissed a petition challenging the state police’s decision to prohibit the construction of shrines within government premises. The petition, filed by Pooja Gurnani, argued that the police’s circular interfered with religious beliefs by barring religious structures in public spaces. The circular was issued in line with the Rajasthan Religious Buildings and Public Places Act, 1954, which mandates that places of worship cannot be built in public areas, including government buildings and parks, without approval from the District Collector and local authorities.
The Court, led by Chief Justice Akil Kureshi and Justice Rekha Borana, referenced the October 25 circular in its ruling. The bench emphasized that the circular merely called for strict adherence to the 1954 Act, urging authorities to enforce its provisions. The court noted that there was no legitimate grievance from the petitioner since the circular aimed at ensuring compliance with the law.
Additionally, the court dismissed Gurnani’s request to exempt government buildings and police stations from being classified as “public places” under the 1954 Act. Justice Kureshi clarified that the court could not direct the legislature to amend laws in any specific way.
The order of Rajasthan High Court dated 11.11.2021 can be read here:
J&K High Court also issued directive on illegal religious encroachments
On September 3, 2020, the Jammu and Kashmir High Court also took significant action concerning illegal religious structures encroaching on public land. The court, led by the then Chief Justice Gita Mittal and Justice Puneet Gupta, directed the Divisional Commissioner of Jammu, Kashmir, and Ladakh to gather detailed reports from all Deputy Commissioners regarding such encroachments. These encroachments were primarily on public spaces, including streets, parks, and other public areas. The directive aimed to ensure that authorities take immediate and comprehensive action on this issue.
Focus on detailed reports and timely action
The court, referencing previous Supreme Court order in Times of India (Suo Moto) 2006, on similar matters, insisted that the Divisional Commissioner obtain reports under specific headings: the location of the encroachments, the area covered, and the identity of the encroachers. This step was part of an effort to identify and address the widespread issue of unauthorized religious structures occupying valuable public land. The court ordered that these reports be compiled and submitted within six weeks. Additionally, it directed that the information be reviewed by the Chief Secretaries of Jammu and Kashmir and Ladakh to ensure that a suitable policy decision was made.
The order of J&K High Cour dated 03.09.2020 can be read here:
The issue of religious neutrality in the functioning of state-maintained public premises and offices is a crucial aspect of upholding the secular framework of a nation. In India, the Constitution mandates that the state shall not support or favour any religion, and it must remain neutral in matters of religious practice and beliefs. This principle is reflected in various judicial rulings and actions taken to prevent religious encroachments on government land and public spaces, as well as the maintenance of secularism within state-run institutions.
Secularism and public spaces: addressing the challenge of religious encroachments
The balance between religious freedom and the state’s obligation to maintain secularism has been a recurring theme in India’s legal landscape. The issue of religious structures on public spaces, particularly government-owned land, has sparked debates about the limits of religious expression and the importance of preserving secularism. The Kerala High Court’s recent ruling in Noorul Islam Samskarika Sangam Thottekkad v. District Collector, Malappuram (2022) reinforces this by underlining the state’s duty to maintain public spaces free from unauthorised religious structures. This principle is enshrined in the Indian Constitution, which mandates a secular state where no religion receives preferential treatment.
The misuse of government land for religious purposes
One of the most contentious issues in this debate is the construction of religious structures on government land. As Kerala High Court Justice P.V. Kunhikrishnan stated, religious structures—whether Hindu, Muslim, Christian, or others—cannot be allowed on public land. This was echoed in the court’s decision to remove unauthorized religious encroachments from government properties, highlighting that the state cannot permit the misuse of public resources for religious activities. This ruling stressed the importance of secularism in ensuring that no religious structure dominates public spaces, thus fostering harmony among different communities.
The Court’s reasoning in cases such as Balakrishna Pillai v. Union of India (2021), where the need for a secular state was emphasized, reflects the broader societal concern that allowing religious encroachments on government land could lead to religious disharmony. The constitutional commitment to secularism mandates that public spaces remain neutral, ensuring equal access for all citizens, regardless of their religious affiliations.
The role of state institutions in upholding secularism
State institutions, including police stations and government offices, are meant to remain neutral in matters of religion. The public manifestation of this neutrality is a space and authority free from religious symbolism. The presence of religious structures within such institutions challenges this neutrality, as highlighted by the Madhya Pradesh High Court’s ongoing scrutiny of religious constructions within police stations. In a recent directive, the MP High Court asked the state government to provide detailed information about these religious structures, pointing out that the construction of temples or other places of worship in government-run institutions could undermine the secular fabric of the state. The challenge raised in this case is of constitutional significance, questioning whether such religious structures violate the principles of Articles 14 (Right to Equality) and 25 (Right to Freedom of Religion) of the Indian Constitution.
Similar concerns were raised by Rajasthan’s Additional Director General of Police, who prohibited the construction of temples within police stations to uphold the secular nature of state institutions. This directive was in line with the Rajasthan Religious Buildings and Public Places Act, 1954, which prohibits religious structures on public land without prior approval from authorities.
The constitutional mandate: religious neutrality of public spaces
Religious neutrality is a fundamental tenet of India’s Constitution, which forbids the state from endorsing any religious activity in its institutions. This principle is reinforced by judicial rulings that prohibit the encroachment of public spaces for religious purposes. For instance, the Gujarat High Court, as early as 2006, ordered the removal of thousands of religious structures from public spaces, reaffirming the constitutional requirement for secularism. The Supreme Court, too, directed those unauthorized religious constructions be reviewed upon public spaces nationwide, underscoring that no religious structure should be allowed to occupy public land.
A unified approach: the need for policy and enforcement
The rise in unauthorised religious structures underscores the importance of strict enforcement of laws to maintain secularism and the effective use of public spaces. It is essential that all levels of government—from the local to the national—take consistent action in preventing the encroachment of religious structures on government land. The actions taken by various High Courts, such as the Kerala and Madhya Pradesh High Courts, highlight the need for a clear and cohesive policy that addresses both existing and future encroachments, ensuring that public spaces are preserved for the collective benefit of all citizens, irrespective of their religious beliefs.
However, while religious freedom remains a cherished right in India, the construction of religious structures on government land is a misuse of public property that undermines the secular nature of the state. Judicial rulings, including those from the Kerala and Madhya Pradesh High Courts, serve as important reminders of the need for vigilance in upholding constitutional values of secularism and ensuring that public spaces remain accessible to all. The state’s duty is to protect these spaces from religious encroachments, fostering a society that values harmony, equality, and religious neutrality.
Related:
Rajasthan HC endorses police order to bar worship areas on gov’t premises
Rajasthan ADG bans temple construction on police station premises
