New Delhi: BJP MP Nishikant Dubey has called for scrapping Articles 26 to 29 of the Constitution in the wake of Tuesday’s terrorist attack on tourists in Jammu and Kashmir’s Pahalgam.
At least 26 people were killed in what is one of the deadliest terrorist attacks on civilians in the Kashmir Valley in recent years. Several others were injured.
Following the incident, Dubey wrote in a post on X in Hindi, “When the country was divided in the name of Hindus and Muslims, then those who made Hindus second class citizens by giving more rights to Muslims in the name of minority just for vote bank should speak about the Pahalgam incident, whether today’s murder was carried out on the basis of religion or not?”
देश का बँटवारा जब हिंदू व मुसलमान के नाम पर हो गया तो केवल वोट बैंक के लिए अल्पसंख्यक के नाम पर मुसलमानों को ज़्यादा अधिकार देकर हिंदुओं को दोयम दर्जे का नागरिक बनाने वालों को आज पहलगाम की घटना पर बताना चाहिए कि आज की हत्या धर्म के आधार पर की गई या नहीं? लानत है सेकुलर वादी…
— Dr Nishikant Dubey (@nishikant_dubey) April 22, 2025
“Shame on secular-wadi leaders! Come what may, the Pakistan-occupied Kashmir will be ours. Have patience, this is Modi’s government whose Home Minister is Amit Shahji. It is time to end Articles 26 to 29 of the Constitution,” he added.
The four Articles talk about religious freedom, and cultural and educational rights. ThePrint explains what these Articles say and what courts have ruled on them.
The journey of minority rights
In the landmark TMA Pai Foundation case of 2002, the Supreme Court traced the journey of how minority rights came to be included in the Constitution.
It pointed out that on 27 February 1947, several committees were formed for drafting the Constitution. The same day, the Advisory Committee formed a sub-committee on minorities for a report on the rights of minorities. Also, Constituent Assembly member KM Munshi suggested to the sub-committee on Fundamental Rights that certain minority rights be made a part of the Fundamental Rights as well.
Munshi then sent a letter to the members of the minority sub-committee recommending that certain fundamental rights of minorities be incorporated in the Constitution.
His recommendations spoke about allowing all citizens to use their mother tongue and script. It said “national minorities”—religious or linguistic—should have equal rights with other citizens in forming, controlling and administering at their own expense, charitable, religious and social institutions, schools and other educational establishments with the free use of their language and practice of their religion.
According to the 2002 apex court judgment, this recommendation was inspired, among other things, by the Polish Minority Treaty, a part of Poland’s Constitution, created in response to historical attempts in Europe and elsewhere to prevent minorities from using or studying their own language.
The sub-committee on minority rights then made its recommendations. While initially Constituent Assembly member GB Pant suggested these rights be made a part of the Directive Principles of State Policy, Munshi stuck to his demand for their inclusion in the chapter on Fundamental Rights, which are enshrined in part III between Article 12 and 35.
Article 26
It allows “every religious denomination” freedom to establish and maintain institutions for religious and charitable purposes, and to manage its own affairs in matters of religion, and to own, acquire and administer movable and immovable property.
This right is subject to “public order, morality and health”.
When the Constituent Assembly debated the provisions, Dr BR Ambedkar moved an amendment to make the right conditional to public order, morality and health. He explained “it is not the purpose to give absolute rights in these matters relating to religion”.
The Supreme Court has ruled that a religious denomination must satisfy three conditions: it must be a collection of individuals who must have common faith, common organisation, and designation by distinctive name. Applying these conditions, the court has ruled that members of the Pushtimarg Vaishnava Sampradaya form religious denominations, but members of the Swaminarayan Sect don’t.
Once determined whether a community is a religious denomination, the courts then look into whether a practice is an “essential religious practice” of that denomination, to determine the scope of protection to be offered. The court has held that only practices integral to the religious denomination are protected.
The interplay between rights of a religious denomination and individual dignity will also be examined by a nine-judge bench of the Supreme Court formed to hear the larger question on faith and fundamental rights referred to it by a bench that was dealing with review petitions in the Sabarimala case.
In addition to the Sabarimala case, another petition pertaining to the Dawoodi Bohra community raised similar questions. In a 1962 judgment, the Supreme Court had recognised the community as a religious denomination under Article 26, and had held that excommunication was an integral part of the community’s religious structure—thereby striking down the Bombay Prevention of Excommunication Act 1949.
However, in 2023, a five-judge Constitution bench referred the issue to the nine-judge Sabarimala bench to examine whether the right of the community to excommunicate its members can be balanced with the other fundamental rights under the Constitution.
This was after the 2023 bench observed that excommunication has many civic consequences, prima facie affecting a person’s fundamental right to live with dignity and the right to live a meaningful life under Article 21 of the Constitution. This nine-judge bench is also set to examine if the word “morality” under Article 26 is meant to include “Constitutional morality”.
More recently, Article 26 has become a talking point with the Supreme Court hearing a batch of petitions challenging the Waqf (Amendment) Act, 2025. The petitioners, among other things, claim this law violates Article 26.
For instance, one of the petitions contends that “the Bill seeking to give an alleged secular colour in the management of the Waqf Board (by inclusion of non-Muslims members in it) is contrary to Article 26 of the Constitution of India”.
Articles 27 and 28
Article 27 bars the State from imposing taxes on funds used for promotion of any particular religion or maintenance of a religious denomination.
Article 28 bars fully State-funded educational institutions from imparting religious instruction to students. But its clause 2 makes an exception for educational institutions administered by the State but established under any endowment or trust which requires that religious instruction be imparted in the institution.
The Supreme Court explained in a 2002 judgement that while “education of religions can be imparted even in ‘educational institutions’ fully maintained out of State funds”, this has to be different from ‘religious education’ which can be imparted in educational institutions maintained by minorities or those under Clause 2 of Article 28.
In his concurring opinion in the 2002 judgment, Justice DM Dharmadhikari had explained that the words “religious instructions” have been held as not prohibiting education of religions dissociated from “tenets, the rituals, observances, ceremonies and modes of worship of a particular sect or denomination”.
“The academic study of the teaching and the philosophy of any great Saint such as Kabir, Gurunanak and Mahabir was held to be not prohibited by Article 28 (1) of the Constitution,” the court noted.
Also read: Nadda draws the line, but unease over Supreme Court’s moves continues to simmer within BJP
Article 29
Article 29 is aimed at protecting cultural and educational rights. It gives the right to any section of citizens who have a distinct language, script or culture of its own, to conserve the same.
Clause 2 of this Article provides the right to citizens to not be denied admission into State maintained and State-aided institutions only on the grounds of religion, race, caste or language. Therefore, once a minority institution takes government aid, it becomes subject to Clause 2 of this Article.
In the 2002 landmark TMA Pai case, the Supreme Court pointed out that this provision does not refer to any specific religion, even though the marginal note of the Article mentions the interests of minorities.
Article 29 is often interpreted alongside Article 30 of the Constitution, which grants minorities the right to establish and administer educational institutions. It protects both religious and linguistic minorities. Clause 2 of the provision also prohibits the government from discriminating against any educational institution on the grounds that it is managed by a minority community, while granting aid to educational institutions.
For instance, in the TMA Pai case, the Supreme Court ruled that the State government or the University may not be entitled to interfere with that right in respect of unaided minority institution, in view of the right of minorities to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution.
However, it clarified that the moment aid is received or taken by a minority educational institution it would be governed by Article 29(2) and would then not be able to refuse admission on grounds of religion, race, caste, language or any of them. In other words, it would not be able to give preference to students of its own community.
(Edited by Ajeet Tiwari)
Bigots weaponizing the ghastly attacks to forward their agenda. Hindus are not and never were second class citizens of India. It Many of us are starting to reexamine the appeasement theory.