Introduction:
India as a nation always had a policy of religious tolerance. it never ceases to surprise that why wasn’t the word secular added into the constitution from the start it was only in 1976 by the 42nd amendment when the word secularism was added to the preamble to the Indian constitution. A term that was added to the constitution almost 29 years after independence makes one think. The answer in my opinion lies in the fact that the notion of Secularism in India is very different than the notion of Secularism is the separation of State from religious activities. Unlike the USA where the first amendment to the U.S constitution prohibits Congress from making any law ‘respecting an establishment of religion’ or ‘prohibiting the free exercise thereof’[1].
India believes in a different notion of Secularism altogether. When one looks at article 25 which gives the freedom of conscience and free profession, practice and propagation of religion. One will always notice the power of the state to regulate such activities under article 25(2[2]) which states that Nothing in this article shall affect the operation of any existing law or prevent the State from making any law:
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. One will always find that the state has been overarching power over the religious institutions.
Religious denominations have the right, under Article 26(d) of the Constitution, to administer their movable and immovable property ‘in accordance with law’. This power is not absolute in the sense While the government can regulate a religious denomination’s right to administer its property, it cannot altogether take over the administration of its property as held in the case of Ratilal Panachand Gandhi v. State of Bombay[3], so one notices the power of the state to regulate religious affairs as a whole is a very different idea of Secularism than what the world follows.
Court’s understanding of Religious Practices and the Principle of Essential Practices
The Supreme Court has held that the word ‘religion’ essentially means two things. Firstly, it means the liberty of religious opinion and belief. the Supreme Court has also noted that religion, as to say, is not necessarily theistic since there are religions in India like Buddhism and Jainism which do not believe in the existence of God. Secondly, religion includes acts done in pursuance of religious belief[4]. However, these are protected so long as they are integral and essential to a particular religion. In the early years, the court would ask itself whether the practice in question was religious, i.e. whether it was ‘essentially religious as opposed to secular.[5] Nowadays the supreme court has adopted a new principle where it decides whether a practice is an essential practice of a particular religion or not.
The Supreme court has laid down some important principles as to whether a practice is an essential practice or not, they are:
- In deciding whether something is essential to a religion, the court takes into account the views of the denomination in question. [6]
- Only the ‘core beliefs’ of a religion are essential to it.[7]
- A practice is considered to be essential if the religion itself would fundamentally be altered in its absence. A practice is essential if it has not been changed in any way. A practice is considered to be essential if the religion itself would fundamentally be altered in its absence. A practice is essential if it has not been changed in any way[8].
- A practice is essential to a religion if it is obligatory. [9]
The Supreme Court has said that courts must take ‘a common-sense view’ and be practical while deciding such questions. Some amount of control or supervision over the due administration of’ religious endowments, the court has held, is permissible.[10]
Understanding the Indian Notion of Secularism Problematic
The supreme court’s principle as to whether a practice is obligatory or not is problematic for example the Supreme Court has held that a ‘mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in the open.’[11] In another case, the supreme court has held that merely because an activity takes place inside a temple or is connected to a temple does not make it religious and integral to religion. [12]Further going forward in another case, the SC has held that the followers of Sri Aurobindo were not a religious denomination, since his teachings, said the court, was a philosophy, not a religion. [13]
A law enacted in Andhra Pradesh said that when the position of the head of a ‘math’ or Hindu monastery became vacant, due to the death, resignation, or removal of the old one, the customary successor could not assume his office unless he had the ‘permission’ of the government-appointed commissioner. The commissioner could refuse his permission on grounds like if he felt the successor lacked ‘basic knowledge of the Hindu religion and philosophy’, ‘unquestionable moral character’, or even a ‘religious temperament with implicit faith in discipline and practice’. This very provision was upheld by the supreme court [14]
Another provision in the Andhra Pradesh law which allowed the commissioner to reject a person nominated by the mathadhipati, or the head of the monastery, to be his successor was upheld.[15]
In the case of Rajesh Himmatlal Solanki versus Union of India [16], in May 2010 the Gujrat HC held a Hindu ritual a Bhoomi Pujan, at a ceremony for laying down the foundation for its new building Rajesh Himmatlal Solanki filed a PIL challenging the use of Hindu pandits to chant shlokas as by doing this the state has identified it with a particular religion and this goes against the spirit of the constitution his lawyer argued that by doing this the state had created an adverse feeling among those who were not Hindus and shaken the confidence of people on the secular nature of the state. Dismissing the appeal with costs the court upheld as the ultimate aim of the prayers is holy and as Hindus and non-Hindus both were to use this building it does not violate the principle of Secularism. The court also called Solanki’s view that Hindu shlokas will hurt the sentiments of other religions so-called pervert and the court in its finding also observed that offering prayers for laying the foundation stone is not an essential practice in any religion I find the court’s verdict very problematic and illogical because why do they have to subscribe to a particular religion to do such a ritual plus what about those who do not consider these practices not holy and view these practices as a state subscribing to a particular religion.
In another case, it was held that a statutory board was within its power to appoint a non-Malayala Brahmin to the post of priest in a Hindu temple, even though traditionally, Brahmins alone held priesthoods at the temple.[17]
In the case of Stainislaus v. State of Madhya Pradesh [18]held that Article 25 did not give ‘the right to convert another person to one’s religion but only to transmit or spread one’s religion by an exposition of its tenets. The supreme court could have held that right to propagate religion does not include the right to convert by undue influence, fraud, and fraud but the Supreme court held otherwise. By doing so the Supreme court ignored the listener’s right to conscience under Article 25
The Courts have Moved-on
In its recent Ajodhya judgment, the question, in this case, was whether the Babri Masjid was indeed a mosque under Islamic jurisprudence. It was argued that several theologically prescribed principles of Islamic law, e.g. that no graves should be situated close to a mosque, were not observed there, which denuded it of the character of a mosque. Rejecting this argument, the Supreme Court held that “it would be inappropriate for the court to ‘enter upon an area of theology and to assume the role of an interpreter of the Hadees”.
The court further noted that “The true test was whether those who believe and worship have faith in the religious efficacy of the place where they pray”. The 5-judge bench unanimously held that ‘as a secular institution, set up under a constitutional regime must steer clear from choosing one among many possible interpretations of theological doctrine and must defer to the safer course of accepting the faith and belief of the worshipper.[19]
Earlier Dy Chandrachud in the Sabrimala case noted that “Due to this essentiality doctrine, Judges including Supreme Court judges are now assuming a theological mantle which we are not expected to do.” He also further noted that
“The issue of what constitutes an essential religious practice is for the religious community to decide. It is not for the courts to determine which of these practices of a faith are to be struck down, except if they are pernicious, oppressive, or a social evil, like Sati. The test should be whether a practice subscribes to the Constitution irrespective of whether it is essential or not”[20].
Conclusion
Who is the court to decide whether a particular practice is essential to a religion? The court in my frank opinion should be the interpreter of law and not religious texts. One important thing to note here is what if there is a dissenting opinion where one half of the bench thinks it to be an essential practice and the other half of the bench thinks it is not an essential practice as in the triple talaq judgment where it was 3-2 verdict striking down Triple talaq. This surprisingly implies that we are giving importance to only one school of thought and are ignorant of the other school of thought and reasoning in a subject which is not the court’s domain. I tend to agree with the reasoning given by Justice DY Chandrachud the test should be whether a practice subscribes to the Constitution irrespective of whether it is essential or not. The court allows some amount of control and supervision but the amount of government interference and interference by the court in the current scenario is itself taking away the very essence of articles 25 and 26.
References:
[1] First amendment to the U. S constitution
[2] Article 25(2) of the Indian constitution
[3] 1954 AIR 388
[4] AIR 1954 SC 282
[5] Article 25(2a) of the Indian constitution
[6]AIR 1958 SC 255
[7] (2004) 12 SCC 770
[8] Supra in 7th citation
[9] Supra in 6th citation
[10] Supra in 4th citation
[11] (1994) 6 SCC 360
[12] (1997) 8 SCC 422
[13] (1983) 1 SCC 51
[14] (1996) 8 SCC 705
[15] Supra in 14th citation
[16] 2011 (1) GLR 782
[17] (2002) 8 SCC 106
[18] 1977 SCR (2) 611
[19] M Siddiq (D)Thr Lrs vs Mahant Suresh Das & Ors, civil appeal no 10866 of 2010, judgement dated 9th November 2019
[20] Krishnan, M. (n.d.). Question of Law: Essential Religious Practices Test a “problem in our jurisprudence”, DY Chandrachud J. Retrieved June 24, 2020, from https://www.barandbench.com/columns/question-of-law-essential-religious-practices-test-a-problem-in-our-jurisprudence-dy-chandrachud-j
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