Religion inherently stems from the roots of our nation and is a part of our thinking, lifestyle and belief. But, defining religion in case law has never been accomplished sufficiently and in the absence of a said definition; courts have passed on and set in motion a distorted ‘Chinese whisper’ which keeps on adding to the ambiguity of the word. Attempts such as “liberty of thought, expression, belief, faith and worship… religion is a matter of belief and doctrine concerning the human spirit expressed overtly in the form of ritual and worship”[1] have been made. The fundamental right to freedom of religion is guaranteed by the Constitution of India under Articles 25 to 28. Article 25 deals with the practice and propagation of a religion while Article 26 gives the freedom to manage religious affairs. Together, they strike a balance between the rigidity of right to religious belief and faith and their intrinsic restrictions in matters of religion, religious beliefs and religious practices and the guaranteed freedom of conscience to commune with his cosmos, creator and realise his spiritual self.[2] The right to religion guaranteed under 25, 26 isn’t an absolute, unfettered right to propagate religion but is one that is subject to legislation by the state limiting and regulating every non-religious activity.[3]
The essential religious practice test is adopted by courts to test whether the practice practised by the religion is essential or not and whether it could be limited by the religion itself. This is determined by “the doctrines of that religion itself.”[4] This test aimed to ascertain if a practice was essentially religious or not. It meant to check, whether the practice was in the scope of “the performance of outward acts in pursuance of religious belief, is, as stated above, subject to State regulation imposed to secure order, public health and morals of the people.”[5] Mukherjee J. said that, “A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well-being, but it will not be correct to say that religion is nothing else but a doctrine or belief.”[6] For example, if we assume Sati to be a part of religion, morality would demand its suppression because murder is a grave crime.[7] Another example is untouchability.[8] Article 17[9] was enacted with the hope of condemning a grave criminal and yet, common practice that was against public order and morality.
This paper aims to take cognizance of the ever-changing interpretation of this test and ascertain in terms of the cases cited whether these varying interpretations would change the decision in terms of the judgements referred. This shall be done by laying out the fundamentals of each of the different types of interpretations of the ancient test and thereby applying them to certain applicable cases. Thus, highlighting the usage of unrestrictive and unchecked powers of the courts in deciding case law by adopting the ‘hit and trial’ method of interpretation of the test while making it a mechanism of arbitrariness and further creating judicial anarchy in terms of the test in the process.
The term ‘essentially religious’ was used for the first time in the Constituent Assembly by BR Ambedkar. He said that religion should be confined to beliefs and rituals that were connected with ceremonials which were ‘essentially religious.[10]’
It was used for the first time in the Shirur Mutt case where the Court said that, “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself; all of them are religious practices and should be regarded as matters of religion within the meaning of article 26(b).[11]” In the Ratilal Panachand Gandhi, the Court said that, “no outside authorities has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate.”[12] This test was later used to determine the content of religion on the evidence of the followers of that religion and also the scriptures[13] which would reveal its tenets excluding superstitions or unessential accretions to that religion.[14]
So during this period, the ambit was clearly defined to limit a practice that had been referenced in the doctrines of a religion and also not to be ascertained by a statutory authority. This meant that the court or any statutory authority would not have any say in deciding whether a practice was an essential religious practice or not. They would have their say only if this practice violated the three restrictions of public order, morality and health under Article 25[15]. Also, no clarity was given on whether an essential religious practice violated a fundamental right or what would be the consequence of such a violation. As case law evolved, judgments were conditioned to suit the case and the test started with quoting the doctrine, then shifting to scriptures and evidence of followers, which then shifted to excluding superstitions. These shifts seemed minor but the biggest change was yet to come.
But then, the interpretation suffered a huge shift as it was changed in the case of Ram Prasad Seth v. State of Uttar Pradesh.[16] In this case, the Court substituted the term ‘essentially religious’ with ‘essential part of Hindu religion.’ This case, changed the interpretation drastically by trying to draw a parallel with ‘essentially religious’ and ‘essential to the religion.’ This was absurd as it created a whole new debate as the former meant a secular activity and the latter meant if the activity was required for the religion’s continuance.
The ancient test referred to the doctrines, practices, tenets, historical background, etc. of the given religion[17] to decide whether the practice was essential to the religion, but now the judiciary would be the one to decide since the interpretation was changed. Now, this minor mistake meant that the term ‘essentially’ was changed to ‘essential’ which meant that indirectly the entire discretionary power was handed to the judiciary on a minor grammatical shift. Moreover, no scope or test was laid out as to who would decide these aspects.
Not noticing this mistake in interpretation, the Supreme Court adopted the ‘essential to the religion’ test in the case of Mohd. Hanif Quareshi v. State of Bihar, where the slaughter of cows was debated upon from the point of view of the Muslim religion under Article 25. The Court investigated the Hedaya book of Islam and said that no affidavit was filed by any person competent to expound the relevant tenets of Islam and it was found in the Hedaya Book that a Mussulman had to sacrifice either a goat for one or a cow or camel for seven persons.[18]
The same test was adopted in Ismail Faruqui v. Union of India, where the Court said 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 open.[19]”
In the case of Acharya Jagdishwaranand Avadhuta, the Anand Margis community had a practice in their culture of performing the Tandav dance on the street which included carrying weapons such as arms, tridents, daggers and human skulls on the street. It was held here that the Anand Margi faith could exist without such dance in the public since it offended the moral values of the general public. It was held that “courts have the power to determine whether a particular rite or observance is regarded as essential by the tenets of a particular religion.”[20]
As seen in the three cases mentioned above, a whole new interpretation was formed based on the mistake made in the Ram Prasad[21] case. Earlier, the courts didn’t have any say in determining whether a practice was essential to a religion or not since it was to be determined by the doctrines of the religion itself. But now, the Courts could judge the said practice’s essentiality to the religion by checking whether without the practice, a substantial part of the religion would vanish or not. Even if the practice ticked that box, it still was under the scrutiny of the tests of public order, morality and health. To summarise, the court brought in its own reasonable standard to judge a religion’s practices.
If this confusion wasn’t enough, many controversial cases where new methods were adopted came about: –
The Courts took the two tests as one and held that, “the court may have to enquire whether the practice in question is religious in character, and if it is, whether it can be regarded as essential to the religion.”[22]
Since, the Court already enjoyed the powers of dictating what practice was essential, in the case of Sastri Yagnapurushadji[23], the Court defined what it meant to be a Hindu and laid out the features of the Hindu religion. The power of the judiciary here was seemingly absolute as they applied both the tests and ultimately held the Swaminarayan sect as a part of the Hindu religion.
In the case of Shri AS Narayana Deekshitulu, the courtupheld the abolition of a hereditary right of a religious sect by adopting an investigative approach. The court said that, “All that is dross will be taken off, no doubt, but the essential parts of religion will emerge triumphant out of this investigation. Not only will it be made scientific-as scientific, at least, as any of the conclusions of physics or chemistry-but will have greater strength, because physics or chemistry has not internal mandate to vouch for its truth, which religion has… It may not be possible, therefore, to devise a precise definition of universal application as to what is religion and what are matters of religious belief or religious practice. That is far from saying that it is not possible to state with reasonable certainty the limits within which the Constitution conferred a right to profess religion.”[24] In this case, the Court aimed to decipher whether the hereditary right was reasonable or not. The whole point in this paper aims to bring out this point of reasonableness, and how it cannot be a standard in determining a religious practices’ essentiality since all unreasonable parts of a religion would be aimed to be taken off by way of the garb of reasonableness and would not leave a religion to what it truly was.
Apart from applying the two established tests, the Court adopted a third test by saying practices that came out of superstition couldn’t be considered religious. They said that, “Practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Article 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.”[25]
In the case of Javed v. State of Haryana the Court said, “The protection under Art.25 and 26 of the Constitution of India is with respect to religious practice, which forms an essential and integral part of religion. A practice may be a religious practice but not an essential and integral part of practice of that religion.”[26] So, it was held that Article 25 permitted legislation in the interest of social welfare and reform as part of public order, national morality and collective health of people and that, religious practice was not an integral part of the practices of the religion was not protected under Article 25.
In Bijoe Emmanuel v. State of Kerala[27], Chinappa Reddy J. approved the reasoning of Davar J. in Jamshedji v. Soonabai[28], to hold “the question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely or conscientiously held as part of the profession or practice of religion.” However, he had his reservations about the process as he warned the courts that, “The court’s personal views and reactions are irrelevant. If belief is genuinely and conscientiously held it attracts the protection of Article 25, but subject, of course, to the inhibitions contained therein.”
In the case of N. Adithyan v. Travancore Devaswom Board & Ors[29]., the Court adopted a new two-step test to determine whether people other than Brahmins could be ordained as Priests in a temple in Kerala. The custom had been in existence for a long time and a lot of evidence had been produced but the court still did not allow the same as they said, “Any custom or usage irrespective of even any proof of their existence in pre-constitutional days cannot be countenanced as a source of law to claim any rights when it is found to violate human rights, dignity, social equality and the specific mandate of the Constitution and law made by Parliament. No usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by courts in the country.”
At first, the Court used to leave the task of determining an essential religious practice to the followers of the religion. Thereafter, it took the task upon itself by adding reasonableness to the picture. But, the recent norm in the judiciary with respect to the test has been controversial as the only commonality seen, seems to be the scope of judicial intervention and judicial supremacy in deciding whether a practice is to be allowed or not, under the unspoken garb of reasonableness.
For instance, in Vishwa Lochan Madan v. Union of India, fatwas were denied any form of legal status.[30] Moreover, in the Santhara judgment[31], where the practice of fasting unto death was declared unconstitutional on the ground of public order, morality and health, it was declared that the practice wasn’t an essential religious practice since, “It is not an essential part of the philosophy and approach of the Jain religion, nor has been practiced frequently to give up the body for salvation of soul.” In Khursheed Ahmad Khan vs State of Uttar Pradesh, it was said “What is permitted or not prohibited by a religion does not become a religious practice or a positive tenet of a religion. A practice does not acquire the sanction of religion simply because it is permitted.”[32] Then, the question that forms is that whether an uncodified practice that doesn’t violate fundamental rights or the tests and isn’t an essential religious practice can be banned or not?
Before moving on it is important to mention that these many interpretations point towards a ‘hit and trial’ method adopted by the Courts in determining whether a practice is an essential religious practice. The first attempt being, whether the practice is essentially religious (that is to be judged by the roots of the religion) the second being, whether the practice being essential to the religion or the third being, to adopt one of the alternate interpretations listed above.
Now, it is important to understand the discretion accorded to the Court by itself in deciding what constitutes a religious practice and the different tests adopted that bring about an anomaly of a secular body determining the religious practice on the basis of what is reasonable. If the religion itself is inherently unreasonable in nature, then reasonableness ought not to be a standard. As Dhawan and Nariman write, “With a power greater than that of a high priest, maulvi or dharmashastri, judges have virtually assumed the theological authority to determine which tenets of a faith are ‘essential’ to any faith and emphatically underscored their constitutional power to strike down those essential tenets of a faith that conflict with the dispensation of the Constitution. Few religious pontiffs possess this kind of power and authority.”[33]
The whole debate in this paper is about checking whether unfettered powers are conferred to the judiciary in deciding whether a practice in a religion is reasonable or not and whether this reasonableness is required or not? To what extent should there be ameliorative secularism[34] that allows the State to intervene in terms of religion? Will such institutionalisation of a religion takeaway from a religion what a religion is?
The trend of the intervention by the Courts is very visible because according to Courts, a religion is, “essentially a thing of sentiment. Man would not need them if he were only a bundle of intellectual and moral senses; but as he has also got sentiment and imagination, without which the former qualities would be inoperative, he cannot do without articulating his ideas and beliefs in some forms appropriate to sentiment.”[35]
In Adi Saiva Sivachariyargal Nala Sangam vs Govt of Tamil Nadu[36], the same sentiment of this paper has been echoed, “To determine whether a claim of state action in furtherance thereof overrides the constitutional guarantees under Article 25 and 26 may often involve what has already been referred to as a delicate and unenviable task of identifying essential religious beliefs and practices, sans which the religion itself does not survive. It is in the performance of this task that the absence of any exclusive ecclesiastical jurisdiction of this Court, if not other shortcomings and adequacies, that can be felt.”
Similar cautionary statements were propounded in the case of Chintamani Khuntia and Ors v. The State of Orissa[37], where the Court said that the Court would make religious practices what they wished them to be if they started enquiring on the rationale of a particular religious practice. “It is all the more doubtful when judicial dicta try to lay down the formula that whether a particular religious practice is an essential part of the religion or not is an objective question to be determined by the Court by looking to the tenets of the religion itself. The usual classification of objective and subjective tests is beset with many difficulties in this area.”
The question is whether we should we go back to the ancient test or continue with this ‘hit and trial’ and continue the cyclical process? Will the test keep on changing with respect to the case at hand, or is there a reasonable standard to be applied? What is this reasonable standard? Will usage of such a reasonable test destroy the innocence of a religion? Is judicial intervention required? All these questions are just the tip of the iceberg, if and when this issue is raised. The judiciary needs to understand that this area of law is an unanswered grey area that needs to be tended to and resolved at the earliest to prevent further disputable interpretations.
For the first set of cases, (Narasu Appa Mali[38], Laksmindra Swamiar[39], Ratilal Panchand[40], Ram Seth[41]) the test used was the first one, ‘essentially religious’ and the result would’ve been same with all other tests since those tests had stemmed out of the first test.
In the second set of cases, for instance, Mohd. Hanif Quareshi[42], the Court went on to check if the practice was ‘essential to the religion.’ If they would’ve applied the first test, the Mohd. Hanif Quareshi judgement might have been different. This is because, the Hedaya book was judged by the court on whether the slaughter of cows was essential to the religion. The court shouldn’t have gone themselves into the text but should’ve allowed the followers to decide whether the practice was essential to their faith or not. And, in any case, the court could have disallowed the case on the restriction of health or public order but by labelling their practice as inessential to their religion it showed the reasonable criteria applied.
Thereafter, in the Ismail Faruqui[43] case, the ‘essential to the religion’ test was applied. Once again, had the first test been applied, the result of whether the State could take over land upon which there is a mosque might have been different. In the Acharya Jagdishwar[44] case, the essential to the religion test was applied and it was said that the religion would still continue if the practice was disallowed. This absolutely shows the arbitrary approach of the courts in approaching any problem.
In the Tilkayat[45] and Sastri Yagnapurushadji[46] both tests were adopted and the results would be same. The case would be similar in terms of the AK Deekshitulu[47] case.
In the Durgah[48] committee case, state intervention in management of the affairs of the Durgah was allowed and this case was judged on the basis of the Durgah never having control of the property. Moreover, the Court added that any practice that was superstitious would not be considered a part of the religion and therefore not be under the ambit of constitutional protection.
This seems preposterous as so many practices of religions are superstitious as religion relies on communitarian conscience.[49] And, many practices will always be superstitious but still need to be allowed because that is the very simplicity of religion, it exists to give people the hope of a higher force of nature, God. It may be the faith of a person offering milk to a Shiva-Lingam or the hereditary right of a child succeeding his priest father in a temple. The very point here is that religion exists so that people follow a moral code and aspire to become better human beings. And, it is this moral code on the basis of which the principles of law have been arrived at. So much so that, religion, religious beliefs, law, jurisprudence and judicial activism are deeply interlinked.[50]
In the Javed [51] case, the issue was related to bigamy. And, it was held that the practice of having more than one wife or procreating more than one child could be regulated or prohibited in the interest of public order, morality and health. But, a distinction was created by the courts between an essential and an inessential practice, which couldn’t be done according to the first test. Since, in the first test, the courts didn’t have the power to check the essentiality of a religious practice.
In the Bijoe [52] case would only differ in terms of the court having discretionary authority over the case, while the Adithyan [53] case, adopted both tests and would be same if applied.
But, the whole problem here is that, when courts try to ascertain the essentiality of a religious practice, they put the said practice under a reasonable microscope, which is certainly not required. If these cases are seen from the ancient test perspective, where one is to look at the practice by the evidence of the followers and of that religion and scriptures[54], the same might not have been held. But the other side’s argument relies of the how everything cannot be tolerated and while freedom of religion and exercise is permitted, it is the duty of the courts to not allow anything in the name of religion by imposing its outer limits.[55]
This leads us to another issue, highlighted in the Javed [56] case. What is greater, the test itself or the restrictions? In every case discussed above, even if a religious practice is considered as essential or not, the Courts anyways have had restrictions in order to ban the practice. Moreover, with the inclusion of the social reform requirement, courts have even more powers to wield their arbitrariness over a case. So, by applying the restrictions every single judgment would be decided beforehand and ascertaining the essentiality of the religious practice would be deemed unnecessary and inconsequential. This will go a long way in curtailing this process as the whole case would function very smoothly by directly referring to the restrictions of public order, health and morality and avoiding the controversial essential religious practice test by not giving the opportunity to the courts to check the essentiality of a practice but still maintaining their supremacy by allowing them to have checks on the practice by way of the restrictions.
After seeing the whirlwind of jurisprudence and ever-changing interpretations on this subject, it seems that it’d be better to follow Justice Sinha’s dissenting judgment in the Syedna Saiffudin[57] case. Justice Sinha held that if a practice violated the civil rights of a person then it could not be given constitutional protection.
He said to, “draw a line of demarcation between practices consisting of rites and ceremonies connected with the particular kind of worship, which is the of the religious community, and practices in other matters which may touch the religious institutions at several points, but which are not intimately concerned with rites and ceremonies the performance of which is an essential part of the religion.”[58] And that, Article 26(b) would only provide constitutional protection to the former right. Thus, by drawing this line of demarcation between rights, he said excommunication was the latter and therefore, wasn’t intimately concerned with rites and ceremonies, which was the essential part of a religion.
Alternatively, another solution would be to remove this redundant test at all. In effect, the solution proposed means to say that, once, the followers of the community determine whether the practice is an essential religious practice, the courts could exercise their discretion by applying either of the restrictions of public order, health and morality and in any case banning the said practice. This would also clarify the unspoken area of law on how an uncodified practice would be adjudicated upon if it violated fundamental rights as it would again be judged by the tests itself. This idea is proposed because the whole controversy begins when the court confers the authority of deciding what is an essential and what isn’t an essential religion practice in a religion, because they judge a religion under an unspoken garb of reasonableness, as enumerated in the cases above, which is exactly what a religion should not be judged with. The approach and undertone being that, when the restrictions of public order, health and morality exist, there is no need for the court to delve into such controversial matters of what is an essential religious practice and what isn’t. This would be beneficial because, the whole opportunity of the courts bringing reasonableness into the matter would fizzle out.
Originally published here.
[1] SP Mittal Etc. v. Union of India, 1983 SCR 1 729.
[2] Shri AS Narayana Deekshitulu v. Andhra Pradesh, 1996 AIR 1765.
[3] Sri Adi Viisheshwara of Kashi Vishwanath Temple, Varanasi v. State of U.P. and Ors.,1997 4 SCC 606.
[4] Ram Prasad Seth v. State Of U.P. And Ors., AIR 1957 All 411.
[5] Ratilal Panachand Gandhi v. The State Of Bombay, 1954 AIR 388 1954 SCR 1035.
[6] Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar of Sghirur Mutt, 1954 AIR 282.
[7]Seervai H.M., PUCL Bulletin, “Religious Freedom under Our Constitution and Social Reform”.
[8] Id. n. 7.
[9] The Constitution of India, 1950.
[10] Ambedkar BR., Constituent Assembly Debates, Volume VII, 2nd December 1948.
[11] Supra. n. 6.
[12] Supra. n. 5.
[13] Rana Muneswar v. State, AIR 1976 Pat 198.
[14] Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, 1964 1 SCR 561.
[15] The Constitution of India, 1950.
[16] Supra. n. 4.
[17] Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853.
[18] Mohd. Hanif Quareshi v. State of Bihar and Ors., 1958 AIR 731.
[19] Ismail Faruqui v. Union of India, 1995 AIR 605.
[20] Commr. Of Police v. Acharya Jagadishwarananda Avadhuta (2004) 12 SCC 808.
[21] Supra. n. 4
[22] Supra. n. 14.
[23] Sastri Yagnapureeshadji v. Muldas Bhurdas Vaishya, 1966 3 SCR 242.
[24] Supra. n. 2.
[25] Durgah Committee, Ajmer v. Syed Hussain Ali, 1962 1 SCR 383.
[26] Javed v. State of Haryana, 2003 8 SCC 369.
[27] Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748.
[28] Jamshedji v. Soonabhai, ILR (1909) 33 Bom 122.
[29] N. Adithyan v. Tranvancore Devaswom Board, AIR 2002 SC 3538.
[30] Vishwa Lochan Madan v. Union of India, 2014 7 SCC 707.
[31] Nikhil Soni v. Union of India, 2016 2 RLW.
[32] Khursheed Ahmad Khan vs State of Uttar Pradesh, 2015 SCC 439.
[33] Derrett, Religion, Law and the State in India, 447.
[34] Gary Jacobsohn, The Wheel of Law: India’s secularism in comparative constitutional context.
[35] Dilawar Singh v. State of Haryana, 2015 1 SCC 737.
[36] Adi Saiva Sivachariyargal Nala Sangam vs Govt of Tamil Nadu, 2016 2 SCC 725.
[37] Chintamani Khuntia and Ors v. The State of Orissa, AIR 1994 Ori 46.
[38] State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84.
[39] Supra. n. 6.
[40] Supra. n. 5.
[41] Supra. n. 4.
[42] Supra. n. 18.
[43] Supra. n. 19.
[44] Supra. n. 20.
[45] Supra. n. 13.
[46] Supra. n. 23.
[47] Supra. n. 2.
[48] Supra. n. 25.
[49] Sir Venkataramana Devaruand v. State of Mysore, 1958 AIR 255.
[50] Sunil Ambwani J., Religion and Jurisprudence by Samvada, September 6-8, 2013.
[51] Supra. n. 26.
[52] Supra. n. 27.
[53] Supra. n. 29.
[54] Supra. n. 25.
[55] Ramji Lal v. State of U.P., 1957 SCR 860; State of Karnataka v. Dr. Praveen Bhai Thogadia, AIR 2004 SC 2081.
[56] Supra. n. 26.
[57] Supra. n. 17.
[58] Id. n. 55.
