Abstract
India is a country where there are a lot of diversities on the grounds of language, race, religion, caste, etc. There are several religions prevalent in India. Due to this reason, State has rightly introduced the concepts of Secularism which means religious tolerance and equal treatment to all religions[1]. Secularism is not an anti-religious doctrine despite its emphasis on absolved of politics from religion, and theocratic society is not a solitary antonym of secular society.[2] All religions should be treated equally and given equal importance. Our constitution has provided the separation between secular and religious domains. The conflict between fundamental rights and religious practices leads to the invention of courts in religious matters. This research paper deals with the essential religious practices and their development.
Keywords
The Supreme Court of India, Essential religious practices, Constitution of India, Secular
Introduction
The constitution of India, 1950 in articles 25 to 28 provides ‘Right to freedom of religion’ which assures that the state should be neutral towards all religions and their respective religious practices. In the 42nd amendment of our constitution of India,’ a secular’ word was added to the Preamble of our constitution that affirms that the Government should not interfere in religious matters and all religions should be treated equally and given equal respect. Religion exists in the public sphere in India but the country has successfully retained its secular character.[3] Religious opinions and the acts done in pursuance of those opinions are religious practices.[4] Religion is a matter of faith of individuals or communities and is not necessarily theistic.[5]
What is essential religious practice?
The Supreme court has laid the doctrine of ‘essential element of religion’ to define what exactly and to delimit the boundaries of religious institutions. The doctrine of Essential Religious Practice was enunciated by the Supreme Court in Shirur Mutt[6] case, in 1954, by a seven-judge bench. It is a doctrine that shields the essential part of any religion, from any kind of legislative intervention under articles 25 & 26 of the Indian Constitution. But the determination of whether a practice/ritual is an integral part of any religion stays in the hand of the court keeping into consideration the doctrine of religion itself[7], keeping aside secular and superstitious practices and beliefs.[8] The Supreme court has evolved an “essential practice test” for the determination of what is secular or what is essential.
What is an essential practice test?
This practice is evolved by the Supreme Court of India in a case Sri Venkatarmana devaru v. the State of Mysore[9] to determine whether a practice is an essential religious practice or not. What is merely superstitious is to suppress the common people that violate the4 fundamental rights. It is considered a burden on the Indian Constitution.
In the case of Indian Young Lawyers Association & Ors. Vs. The State of Kerala & Ors. [10] , the apex court declared that the practice of restricting women of a specific age group in their ‘menstruating years’ from entering Sabarimala Temple is unconstitutional. And this practice violates the fundamental rights to equality, liberty, and freedom of religion which are mentioned under articles 14,15,19(1),21, and 25(1). Justice D Y Chandrachud in the Sabarimala Case made a rational point “Due to this essentiality doctrine, Judges are now assuming a theological mantle which we are not expected to do”.
In the year 2019, some Muslim women approached the Supreme court for their rights to enter the mosques. And it was held that this practice is an abrogation of the Fundamental rights of women. The Court rejected a suggestion by the Advocate General of Madras which proposed that only “essential” practices of religion be given constitutional protection, pointing out that “what constitutes the essential part of a religion is primarily to be ascertained regarding the doctrines of that religion itself.”[11]
In a case, Sardar Syedna Taher Saiffudin v. the State of Bombay[12]; It was further observed that what constitutes an essential practice is to be gathered from the texts and tenets of the religion. The legislature, the Court added, was not permitted to reform a religion out of existence or identity. In the case of Sunita Tiwari vs. Union of India And Ors.[13] , All the females of Dawoodi Bohra Community mandatorily went through the process of Female genital mutilation or ‘khatna’. It was contended that this practice is in violation of article 21 in terms of the UN Convention on the Rights of Child and the Universal declaration of human rights and should be considered an offense under the Indian Penal code. In Tilkayat Shri Govindlaji Maharaj v. the State of Rajasthan[14]; the practices in question should be treated as a part of the religion they must be regarded by the said religion as its essential and integral part; otherwise, even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may claim being treated as religious practices within the meaning of Article 26.
A case arose in front of the Supreme court of India against the judgment of Gujarat High Court, Goolrukh Gupta vs. Burjur Pardiwala [15] in this, the petitioner was denied to enter into the tower of silence which was a religious institution of the Parsi community after getting married to a Hindu husband. The main issue, in this case, is that the marriage of a girl in some other religion will mean the auto-conversion of the religion of that girl. The Supreme Court held that marrying a person of another religion does not lead to the conversion into that religion.
In Seshammal & Ors. V. State of Tamil Nadu[16] ; The court held that the purpose of the Act was to regulate secular functions like management and administration, which included the appointment of the Archaka. It did not however aim to regulate or change the rituals and ceremonies followed in the temples.
In Sri Venkataramana Devaru vs. State of Mysore[17] , the issue was whether the exclusion of people outside Hindu temples was an essential practice or not. It was concluded that the temple was open for all Hindus but some ceremonies were carried out only by a certain class of worshipers as per information in puranic literature. The appointment of a head of a Hindu temple on a hereditary basis cannot be considered as an essential religious practice and Court can intervene in this matter.[18] In Adi Saiva Sivachariyargal Nala Sangam v. Government of Tamil Nadu[19] ; the Court reiterated that though the appointment was a secular function, the denomination of the Archakas must be in accordance with the Agamas. The Agamas restricted the appointment of Archakas to particular religious denominations. The Supreme Court[20] held that it was not an essential practice and could not be offered constitutional protection under Article 25 and the Court held that it was against the basic tenets of the Quran and thus violative. A practice that is merely permitted or not prohibited by religion cannot be considered an essential tenet that was sanctioned by that particular religion. Triple Talaq is only a form of talaq which is permissible in law, stated to be sinful.
CONSTITUTIONAL PROVISIONS
Article 14[21] Equality before law
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.
Article 15[22] Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth, or any of them,
be subject to any disability, liability, restriction, or condition with regard to
(a) access to shops, public restaurants, hotels, and palaces of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads, and places of public resort maintained
wholly or partly out of State funds or dedicated to the use of the general public
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
(4) Nothing in this article or clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or the Scheduled Castes and the Scheduled Tribes.
Article 19[23] : Protection of certain rights regarding freedom of speech etc.
(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practice any profession, or to carry on any occupation, trade, or business
(2) Nothing in sub-clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offense
(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause
(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause
(5) Nothing in sub-clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe
(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,
(i) the professional or technical qualifications necessary for practicing any profession or
carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any
trade, business, industry, or service, whether to the exclusion, complete or partial, of citizens
or otherwise.
Article 21[24]. Protection of life and personal liberty
No person shall be deprived of his life or personal liberty except according to the procedure established by law.
Article 25[25] Freedom of conscience and free profession, practice, and propagation of religion.
(1)Subject to public order, morality, and health and 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.
Article 26[26] gives special protection to religious denomination and lays down that every religious denomination or a section thereof has the right—
(a)to establish and maintain institutions for religious and charitable purposes;
(b)to manage its affairs in matters of religion;
(c)to own and acquire movable and immovable property; and
(d)to administer such property in accordance with the law.
Article 27[27] Freedom as to payment of taxes for promotion of any particular religion —No person [shall] be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.
Article 28[28] : Freedom as to attendance at religious instruction or religious worship in certain educational institutions–
(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 that 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 recognized 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.”
Article 32[29]. Remedies for enforcement of rights conferred by this Part:
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
RESEARCH METHODOLOGY
Secondary online sources were used to collect data. This approach was adopted in order to describe, analyze and interpret the developments of essential religious practice. The reliance for the collection of data as a source in this paper has predominantly been upon the websites, articles, annual Databases, and judgments of various courts. The research methodology is based on the factors, reasons, legal provisions, and case laws that have been adopted in the research paper and there are various collections of data from various resources. The researcher has also relied on scholarly articles to substantiate their findings.
REVIEW OF LITERATURE
This article protects matters of religious doctrine or belief as well as acts that were done in pursuance of religion- rituals, ceremonies, and modes of worship. This article deals with the religious tolerance that has been one of the characteristic features of Indian Civilization from
the starting of its history. This also embodies the secular nature of the Indian Polity which the founding fathers considered the foundation of the Constitution. This Right isn’t guaranteed
just to the citizens of India but to all persons.
However, does this mean that there is no restriction on this right and the State can make
no regulations for the same and the Courts cannot independently act? That is untrue, this article and right aren’t absolute and the State can put reasonable restrictions and regulate the practice of a particular religion up to some extent. The difficulty is that the law does deals with what exactly essential practice is or whatnot.
Article 25 and 26 of the constitution deal with the equal aspect theory of secularism adopted by the constitution. Article 25 provides that subject to public order, health, morality, and fundamental rights enshrined in the constitution, every individual has the right to freedom of conscience and religion. Article 26 adds in this the right to freely manage religious affairs of their religion. However, Article 26 is also subject to public order, health and morality.
METHOD
The constitution of India, 1950 in articles 25 to 28 provides ‘Right to freedom of religion’ which assures that the state should be neutral towards all religions and their respective religious practices. In the 42nd amendment of our constitution of India ‘ the secular’ word was added to the Preamble of our constitution that affirms that the Government should not interfere in religious matters and all religions should be treated equally and given equal respect.
SUGGESTIONS
The Legislation should make laws which interprets that what amounts to essential religious practices and whatnot. Although the Supreme court has given a doctrine on essential religious practices as it is not mentioned that what amounts to essential or what is mere superstition, it becomes a difficult task to solve the issues. As Courts cannot excessively interfere in religious matters which can lead to conflict among people of different religions. The Court observed that “as to what constitutes an essential part of religion or religious practice has to be decided by the Courts with reference to the doctrine of a particular religion or practices regarded as parts of religion.”[30] To allow any authority to judge the truth or falsity of a religious belief or practice is to destroy the guarantee of religious freedom in the Constitution.[31] Although the Supreme court evolved the “essential religious practice test” to examine what is secular and what is religious it has to face a lot of criticism.
CONCLUSION
The doctrine of essential practice test limits the boundaries of the religious institution and also it is mentioned in Articles 25 and 26 that the court cannot interfere in religious practices. But in some cases, religious institutions tend to suppress the fundamental rights of the common people in the name of essential religious practice which leads to the intervention of Courts to protect the rights and provide justice to them. There are several cases registered in various courts regarding this issue and multiple aspects of this essentiality have been given by the Indian judiciary. There is no clarity in the Indian Constitution concerning that what amounts to essential practice or whatnot. But while exercising this doctrine, the courts should keep in mind that excessive interference in religious matters should be avoided. Although the Courts have drawn a line between what is mere superstition and what is essentially religious to a religion. What is a religion to some is pure dogma to others and what is a religion to others is pure superstition to some others.[32] Practices through religion may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself.[33]
Name: Garima Kamboj
College: University Institute of Legal Studies, Panjab University, Chandigarh.
[1] S.R.Bommai v. Union of India (2002) 8 SCC 481
[2] Peethambaram v. Supt. Of Police, CBI, 1996 (1) KLF 173 at 175
[3] Ranbir Singh & Karamvir Singh, Secularism in India: Challenges and Its Future, 69 INDIAN J. POL. SCI. 597, 603 (2008)
[4] Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Tirtha Swamiyar of Shri Shirur Mutt,1954 AIR 282
[5] S Pal: India’s Constitution-Origins and Evolution,1st ed., Vol 2
[6] The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Tirtha Swamiyar of Shri Shirur Mutt, 1954 AIR 282
[7] Ratilal v. State of Bombay, (1954) A.I.R. 1954 S.C. 388.
[8] Durgah Committee v. Hussain Ali, A.I.R. 1961 S.C. 1402
[9] Shri Venkatarmana Devaru v. State of Mysore ,1958 SCR 895
[10] Indian Young Lawyers Association And Ors. Vs. The State Of Kerala And Ors., 2018 SC 492
[11] The commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Tirtha Swamiyar of Shri Shirur Mutt, 1954 SCR 1005
[12] Sardar Syedna Taher Saiffudin v. State of Bombay, 1962 AIR 853
[13] Sunita Tiwari vs. Union of India and Ors. 2018 SCC Online SC 2667
[14] Tilkayat Shri Govindlaji Maharaj v. the State of Rajasthan, 1964 SCR (1) 561
[15] Goolrukh Gupta vs. Burjur Pardiwala,2017 SCC Online SC 1275
[16] Seshammal & Ors. V. State of Tamil Nadu, (1972) 3 DCR 815
[17] Sri Venkataramana Devaru vs. State of Mysore , AIR 1958 SC 255
[18] A.S. Narayana Deekshitulu v. State of Andhra Pradesh, (1996) 9 SCC 548
[19] Adi Saiva Sivachariyargal Nala Sangam V. Government of Tamil Nadu ,(2014) 5 SCC 75
[20] Shayara Bano v. Union of India ,(2017) 9 SCC 1
[21] INDIA CONST. art. 14
[22] INDIA CONST. art. 15
[23] INDIA CONST. art. 19
[24] INDIA CONST. art. 21
[25] INDIA CONST. art. 25
[26] INDIA CONST. art. 26
[27] INDIA CONST. art. 27
[28] INDIA CONST. art. 28
[29] INDIA CONST. art. 32
[30] N. Adithayan vs. Travancore Devaswom Board (2002) 8 SCC 106 at 123
[31] US vs. Ballard, 88 L.Ed.1148
[32] S.P. Mittal vs. Raghubir and others, AIR 1983 SC 1
[33] Durga Committee , Ajmer & Anr. Vs. Syed Hussain Ali & Ors.