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Essential Religious Practice Test

Publications, Research paper

ABSTRACT

India is a diverse country, which has so many religion but sometimes this diversity becomes problematic when it comes to religion matter although the constitution of India and other acts has given so many rights and protection ,but sometimes certain religious practice seems to be conflicting with a fundamental right, and whenever such situation arises or such religious practice get challenged the judiciary in most of the case apply this test which is known as “essential religious practice test”.This research paper will cover the origin, how it is applied in judgment, and what is the problem of essential religious practice. Moreover, at the end of this research paper, some suggestions are mentioned regarding essential religious practices and their implementation.

KEYWORDS

Essential Religious Practice Test, Religion Law, Article 25, Diversity Problem

INTRODUCTION

The Indian constitution clearly mentions the word ‘secular’ which if we go by judgments means that the state has no religion and it does not promote any religion but in the same constitution it is the duty of the state to protect each and every religion which is clearly mentioned from article 25 to 28 of Indian constitution. And each and every religion has some sort of practice that is common in their religion and performed by followers. Now the question arises, do all religious practices get protected by these articles that are mentioned in the Indian constitution? The answer to this question is that NO, not all religious practices are protected under these articles of the constitution only essential matters of religion are covered and protected by these articles. The current secular nature is the result of the debate that took place when the Constitution was made.

RESEARCH METHODOLOGY

This paper is descriptive in nature and covers all aspects of essential religious practice based on secondary sources of information better explained with the help of landmark judgments.

CONSTITUENT ASSEMBLY DEBATES

There were many objections made during the debate.

Problem with the word ‘propagating’

Mr . Tajamul Hussain said that

“I feel, Sir, that religion is a private affair between oneself and his Creator. It has nothing to do with others. My religion is my own belief, and your religion, Sir, is your own belief. Why should you interfere with my religion, and why should I interfere with your religion? Religion is only a means for the attainment of one’s salvation. Supposing I honestly believe that I will attain salvation according to my way of thinking, and according to my religion, and you Sir, honestly believe that you will attain salvation according to your way, then why should I ask you to attain salvation according to my way, or way, should you ask me to attain salvation according to your way? If you accept this proposition, then, why propagate religion? As I said, religion is between oneself and his God. Then, honestly profess religion and practice it at home. Do not demonstrate it for the sake of propagating. Do not show to the people that this is your religion for the sake of showing. If you start propagating religion in this

country, you will become a nuisance to others. So far it has become a nuisance.” [[1]]

WHAT IS AN “ESSENTIAL” RELIGIOUS PRACTICE TEST?

Before understanding what is an Essential Religious Practice Test, let’s understand what exactly Article 25 and Article 26 of the Indian constitution say about religion.

Right to Freedom of Religion

Article 25. (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

(2) 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.

Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina, or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly [[2]]

Article 26. Subject to public order, morality, and health, every religious denomination or any section thereof shall have the right—

  • to establish and maintain institutions for religious and charitable purposes;
  • to manage its own affairs in matters of religion;
  • to own and acquire movable and immovable property; and
  • to administer such property in accordance with the law. [[3]]

CONCEPT AND ORIGIN

It is believed that this doctrine originated in one of the constituent assembly debates which took place on 2nd December 1948 where Dr. Bhimrao Ambedkar mentioned the word essential practice, as it goes like this

“Coming to the question of saving personal law, I think this matter was very completely and very sufficiently discussed and debated at the time when we discussed one of the Directive Principles of this Constitution which enjoins the State to seek or to strive to bring about a uniform civil code and I do not think it is necessary to make any further reference to it, but I should like to say this that, if such a saving clause was introduced into the Constitution, it would disable the legislatures in India from enacting any social measure whatsoever. The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing that is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials that are essentially religious. It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession, should be governed by religion. In Europe there is Christianity, but Christianity does not mean that the Christians all over the world or in any part of Europe where they live, shall have a uniform system of law of inheritance. No such thing exists. I

personally do not understand why religion should be given this vast, expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, so full of inequalities, discrimination, and other things, which conflict with our fundamental rights. It is, therefore, quite impossible for anybody to conceive that the personal law shall be excluded from the jurisdiction of the State. Having said that, I should also like to point out that all that the State is claiming in this matter is the power to legislate. There is no obligation upon the State to do away with personal laws. It is only giving power. Therefore, no one need be apprehensive of the fact that if the State has the power, the State will immediately proceed to execute or enforce that power in a manner that may be found to be objectionable by the Muslims or by the Christians, or by any other community in India”. [[4]]

The concept of essential religious practice test originated in the landmark judgment of Shirur Matt [[5]] case.

Where the honorable court held that

“…what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or ablations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning

of Article 25” [[6]].

So basically it draws lines between the religious practice that are essential for any particular religion and which are not essential in nature.

HOW IT IS APPLIED IN TODAY’S CONTEXT WITH SOME LANDMARK JUDGMENT

Now the question arises of how it is applied in today’s modern judgment if we look at the recent judgment which also created so many questions regarding the complex diversity of our nation. One such judgment is the Practice of Triple Talaq.

SHAYARA BANO vs UNION OF INDIA[[7]]

Facts of Case

Shayara Bano filed a Writ petition in the Supreme Court pleading to declare three practices talaq-e-bidat, polygamy, and nikah-halala as unconstitutional as they violate the fundamental rights of the women enshrined in Articles 14, 15, 21 and 25 of the Indian Constitution.

Issues Involved

  1. Whether the practice of Triple Talaq is valid?
    1. Whether Triple Taqal should be treated as an essential religious practice?

Judgment

In this landmark judgment, the honorable court held that the practice of triple talaq is unconstitutional and even the holy Quran does not allow it also. The court held that it was against the basic tenets of the Quran and thus violative of the Shariat. The honorable court comes to this conclusion only by reading ancient texts like Quran, etc.

BAN ON SLAUGHTER OF COWS – MOHD.HANIF QUARESHI V.STATE OF BIHAR[[8]]

Case Background

12 petitions were filed under Article 32 of the Indian constitution, which challenged the constitutional validity of three legislative banning the slaughter of certain animals in Bihar, Uttar Pradesh, and Madhya Pradesh.

Judgment of the Case

After reading Hamilton’s translation of Hedaya’s book xliii at p.592 the court held that the sacrifice established for one is a goat and that for seven a cow or camel .further the court held that

“We, however, find it laid down in Hamilton’s translation of Hedaya Book XLIII at p. 592 that it is the duty of every free Mussulman, arrived at the age of maturity, to offer a sacrifice on the Yd Kirban, or festival of the sacrifice, provided he be then possessed of Nisab and be not a traveler. The sacrifice established for one person is a goat and that for seven a cow or a camel. It is therefore, optional for a Muslim to sacrifice a goat for one person or a cow or a camel for seven persons. It does not appear to be obligatory that a person must sacrifice a cow. The very fact of an option seems to run counter to the notion of an obligatory duty. It is, however, pointed out that a person with six other members of his family may afford to sacrifice a cow but may not be able to afford to sacrifice seven goats. So there may be an economic compulsion although there is no religious compulsion. It is also pointed out that from time immemorial the Indian Mussalmans have been sacrificing cows and this practice, if not enjoined, is certainly sanctioned by their religion and it amounts to their practice of religion protected by Art.” [[9]]

Conclusion of the Case

The reasoning which has been applied in the above-mentioned case is purely based on essential religious practice and it can be seen by the above reasoning that nothing comes from outside the religion, all the interpretation done by the judiciary is by reading the holy ancient text book.

PLACE OF OFFERING PRAYERS – DR M. ISMAIL FARUQUI AND ORS. VS UNION OF INDIA (UOI) AND ORS.

Facts of the case

The constitutional validity of the acquisition of certain areas at Ayodhya act 1993, it has been contended that the acquisition of a mosque violates the rights given under article 25 of Indian constitution.

Judgment -The court held that

“The correct position may be summarized thus. Under the Mahomedan Law applicable in India, title to a mosque can be lost by adverse possession . If that is the position in law, there can be no reason to hold that a mosque has a unique or special status, higher than that of the places of worship of other religions in secular India to make it immune from acquisition by exercise of the sovereign or prerogative power of the State. 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. Accordingly, its acquisition is not prohibited by the provisions in the Constitution of India. Irrespective of the status of a mosque in an Islamic country for the purpose of immunity from acquisition by the State in exercise of the sovereign power, its status and immunity from acquisition in the secular ethos of India under the Constitution is the same and equal to that of the places of worship of the other religions, namely, church, While offer of prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as to form an essential or integral part thereof. Places of worship of any religion having particular significance for that religion, to make it an essential or integral part of the religion, stand on a different footing and have to be treated differently and more reverentially

temple etc. It is neither more nor less than that of the places of worship of the other religions. Obviously, the acquisition of any religious place is to be made only in unusual and extraordinary situations for a larger national purpose keeping in view that such acquisition should not result in extinction of the right to practice the religion, if the significance of that place be such. Subject to this condition, the power of acquisition is available for a mosque like any other place of worship of any religion. The right to worship is not at any and every place, so long as it can be practiced effectively, unless the right to worship at a particular place is itself an integral part of that right”.  [[10]]

PROBLEM WITH “ESSENTIAL RELIGIOUS PRACTICE TEST”

Although this test was the basis of many landmark judgments, it too has an evil side, for example, recently CJI DY Chandrachud J says that

“There is a problem with our jurisprudence. The essentiality aspect has taken charge of A.25 but it should not be so. Because if something is essential it becomes inviolable. [6]”

What it means is that if any religious practice is essential by nature and falls under the scope of social evil, it will become problematic for the judge and society because ultimately it will be given protection under Article 25 of the Indian constitution. Also, it sometimes raises the question of whether does judiciary has the power to decide what is essential and what is not.

Also, it is important to note that every time we invoke reasoning while deciding what is essential and what is not then this will create the problem same as observed by Justice Indu Malhotra the landmark judgment of Sabarimala judgment where she gave the dissenting opinion. What is said in the Sabarimala judgment it goes like this

“the rationality of the religious beliefs or practices, which would be outside the ken of the Courts. 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 submissions made by the Counsel for the Petitioners is premised on the view that this practice constitutes gender discrimination against women. On the other hand, the Respondents submit that the present case deals with the right of the devotees of this denomination or sect, as the case may be, to practice their religion in accordance with the tenets and beliefs, which are considered to be “essential” religious practices of this shrine” [[11]]

Further, she also criticized the invocation of rationality in matters of religion as she added that

“Notions of rationality cannot be invoked in matters of religion by courts. The followers of this denomination, or sect, as the case may be, submit that the worshippers of this deity in Sabarimala Temple even individually have the right to practice and profess their religion under Article 25(1) in accordance with the tenets of their faith, which is protected as a Fundamental Right”. [11]

CONCLUSION

Although the essential religious practice test is based on many judgments but the Indian judiciary has to find an alternative method that can be more effective and proportional as CJI DY Chandrachud says correctly, “The test should be whether a practice subscribes to the Constitution irrespective of whether it is essential or not” [6].

Also, it is important to note that many juris advocate the principle of ‘anti-exclusion principle’ to be used by the Indian judiciary in place of essential religious practice tests that will be more logical .

REFERENCES

  1. CONSTITUTION OF INDIA, Mr . Tajamul Hussain – 03 Dec 1948 Archives – Constitution of India, (last visited Aug. 14, 2023).
  2. INDIAN CONST. art. 25.
  3. INDIAN CONST. art. 26.
  4. CONSTITUTION OF INDIA, Dr. Bhimrao Ambedkar – 02 Dec 1948 Archives – Constitution of India, (last visited Aug. 14, 2023).
  5. The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Thirtha Swamiyar of Shri Shirur Mutt, (1954) AIR – 282.
  6. Murali Krishnan, Essential     Religious Practices Test a “Problem         With Our Jurisprudence”, Bar and Bench, (last visited Aug. 14, 2023), https://www.barandbench.com.
  7. Shayara Bano Vs Union Of India, AIR 2017 9 SCC 1 (SC).
  8. Mohd.Hanif Quareshi V. State Of Bihar, AIR 1958 SC 73.
  9. Mohd. Hanif Quareshi & Others vs The State Of Bihar, 1958 AIR 731, 1959 SCR 629.
  10. Dr M. Ismail Faruqui And Ors. Vs Union Of India (Uoi) And Ors., AIR 1995 SC 605, JT 1994 (6) SC 632, (1994) 6 SCC 360, 1994 Supp 5 SCR 1 (Dr M. Ismail Frauqui And Ors. vs Union Of India (Uoi) And Ors. on 24 October, 1994 (indiankanoon.org).
  11.  Indian Young Lawyers Association vs The State Of Kerala on 28 September 2018, WRIT PETITION (CIVIL) NO. 373 OF 2006, (Indian Young Lawyers Association vs The State Of Kerala on 28 September, 2018 (indiankanoon.org).

Saurabh Singh

Babu Banarasi Das University, Lucknow, Uttar Pradesh

[1] CONSTITUTION OF INDIA, Mr . Tajamul Hussain – 03 Dec 1948 Archives – Constitution of India, (last visited Aug. 14, 2023).

[2] INDIAN CONST. art. 25.

[3] INDIAN CONST. art. 26.

[4] CONSTITUTION OF INDIA, Dr. Bhimrao Ambedkar – 02 Dec 1948 Archives – Constitution of India, (last visited Aug. 14, 2023).

[5] The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Thirtha Swamiyar of Shri Shirur Mutt, (1954) AIR – 282.

[6] Murali Krishnan, Essential   Religious Practices Test a “Problem            With Our Jurisprudence”, Bar and Bench, (last visited Aug. 14, 2023), https://www.barandbench.com.

[7] Shayara Bano Vs Union Of India, AIR 2017 9 SCC 1 (SC).

[8] Mohd.Hanif Quareshi V. State Of Bihar, AIR 1958 SC 731.

[9] Mohd. Hanif Quareshi & Others vs The State Of Bihar, 1958 AIR 731, 1959 SCR 629.

[10] Dr M. Ismail Faruqui And Ors. Vs Union Of India (Uoi) And Ors., AIR 1995 SC 605, JT 1994 (6) SC 632, (1994) 6 SCC 360, 1994 Supp 5 SCR 1 (Dr M. Ismail Frauqui And Ors. vs Union Of India (Uoi) And Ors. on 24 October, 1994 (indiankanoon.org).

[11] Indian Young Lawyers Association vs The State Of Kerala on 28 September 2018, WRIT PETITION (CIVIL) NO. 373 OF 2006, (Indian Young Lawyers Association vs The State Of Kerala on 28 September, 2018 (indiankanoon.org).