Debating The Role of Indian Judiciary vis-à-vis ‘Essential Religious Practices’ Test

Nikhil Erinjingat

The Supreme Court of India in a landmark decision[1] ordered the disputed land in Ayodhya to be a used for building  and the Bhoomi Pooja was conducted with grandeur and splendor on 5th August 2020. Even though the dispute started with a land dispute, the matter decision put a great significance on ‘faith’.[2] In recent times the Supreme Court has had to deal with several cases involving question of ‘faith’-  the Supreme Court, earlier this year in a similar context involving questions of faith, constituted a nine-judge bench headed by the Chief Justice of India to review its 2018 judgment allowing entry of women of all ages to the Sabarimala Temple.[3] The Allahabad High Court disallowed in May the use of loudspeakers to recite Azaan stating that the use of sound-amplifying devices cannot be considered an integral part of Islam.[4] In both these cases, the judges delved into determining  essential religious practices   of the respective faiths. The test of  essential religious practices has been contentious and criticized due excessive interference of state in religious affairs.[5]  

This article, however, does not argue against the vagueness of the test per se, but rather argues that any test to determine  ‘essential religious practices’ will fail because of the fluid nature of religion. The article will further address the implication of  the test on the interpretation of Article 25 of the Constitution of India in  respect of religious practices which by virtue of their dynamic and fluid nature will not conform to any possible exhaustive test.

The Legal Underpinning of ‘Essential Religious Practices’

In order to understand the approach of the judiciary to the ‘essential religious practices’ test, it becomes pertinent to refer to the caselaw whereupon the Supreme Court has declared certain religious practices “essential” or “non-essential”.

The formulation of the test can be traced  to the Shirur Mutt[6] case where the court ascertained if a practice is essential to a religion by examining the tenets and doctrine of the religion, and  held that the fundamental right to freedom of religion will protect only those religious practices which are essential to that religion. The majority in the Sabarimala decision[7] held that all practices of a religion are not essential, and there are practices which are superstitious and require  to be distinguished from those  that are essential. Such a distinction between essential religious practices and superstitious practices was also made earlier in Durgah Committee Ajmer v. Syed Hussain Ali & Ors[8] wherein the apex court while deciding if excluding women from the inner sanctum of the Dargah was an essential practice of  Islam held the exclusion to not be an essential practice. On a similar line of argument, in  Shastri Yagnapurushdasji v. Muldas[9] the Supreme court made a rather slippery remark by calling the practice in question as founded on “superstition, ignorance, and complete misunderstanding of the teachings of Hindu religion”.

In Mohd. Hanif Quareshi v. State of Bihar, the Supreme Court held that cow-sacrifice is not an essential practice in Islam.[10] The Court, similarly, in Acharya Jagdishwarananda Avadhuta v. Commr of Police[11] held that the performance of the Shiv tandav in public is not an essential practice of the Anand Margi faith. In the contentious decision of Mohd. Faruqui v. Union of India[12], the Supreme Court held that though the right to offer prayer or Namaz is a religious practice of Islam, the right to offer prayer at any and every  location would not by itself be an essential or integral part of such religious practice (see Paragraph 81). Moreover, the Allahabad High Court in Afzal Ansari & Ors. v. State of U.P. & Ors.[13] declared that the use of loudspeakers for Azaan is not an integral part of Islam warranting protection of the fundamental right under Article 25 of the Constitution.

The courts have determined essential religious practices for Islam collectively. However, in  cases where Hindu religious practices were under challenge, whether the Shirur Mutt; Sabarimala; or Aurobindo case—the Supreme Court concretized the impugned religious practice(s) to a sect or denomination. This narrowing down is an inevitable consequence of the nature of the Hindu religion which will be discussed in the next section. In order to  understand  an essential practice in Hinduism, understanding its fundamental tenets  a becomes material. What could be deemed as Fundamental practice to a religion?

All the decisions referred in the previous section consider one central question: ‘Will not practicing a particular religious practice deprive the individual the membership of that  religion?’. Justice (Retd.) Ruma Pal during a public discussion remarked that in her opinion the fundamental test to determine an essential religious practice should be to ask oneself: “If absent the practice in question, will the person(s) remain a part of that religion?” There  is a fundamental flaw in this argument and its approach to the ‘essential religious practices test’. .  The test presumes the existence of certain practices, and only those practices (which is judicially recognized) becomes a legitimate religious practice protected under Article 25. Unfortunately, in Hinduism, there is no such set of rules. In Abrahamic religions, even though  certain reliance can at the least be placed on the texts considered central to the religion, since every sect believes in either different practices or deems particular practices to be fundamental, books like the Qur’an for Muslims, or the Bible for Christians, though being the supreme text, vary in practice,.[14] , in Islam, the belief in the supremacy of Allah as the only God is primary to being a Muslim. For a Catholic, it is mandatory to believe that Jesus was the Son of God, and a Jew submits to the Torah.  In Hinduism, there exists no single text which is the ultimate and final word of God(s). The Vedas are believed to be the most ancient texts of Hinduism; however, they do not enjoy  supremacy over the Bhagwat Gita or vice versa..[15] The Hindus may be monotheists[16], polytheists or even agnostic.[17] The aforementioned religious structures and practices of various religions highlight the diversity not just among their workings but also intra-religious variations in the practices and beliefs of their practitioners. or ‘Sindhu’

The implication of applying any test to determine essential religious practices would fail to operate for  religious practices since there is not anything which could be objectively enlisted to be called essential to a certain religion. . Thus, the answer to whether visiting  places of worship, celebrating a certain religious festival/ event  ,offering prayer and any other religious practice typically attributed as to a certain religion  is an essential practice would be in the negative because a

Finding a Solution to the Perplexity

Our constitution framers gave us a largely liberal constitution. With  reference to the case laws, which suggest that right to religion frequently conflicts with other rights such as equality, life and freedom. Fortunately, the framers of our Constitution have provided the solution for the conflict between right to religion and other fundamental rights in the provision of Article 25 itself.. When one’s right to religion conflicts with another’s fundamental rights, Article 25 does not prevail as the Article is made subject to “…other provisions of this Part” (that is, Part III), a restriction often overlooked. In other words, when Article 25 conflicts with any other fundamental rights such as Article 14 or Article 21, in every case irrespective of whether  the impugned religious practice is essential or not, the other fundamental rights will prevail.[18]

Therefore, the test of essential nature of any religious practice should not be material  when it comes to protection of rights under Article 25. Lastly, g  the suspensive restrictions under Article 25 provide  the best way to ensure justice instead of falling into the rabbit hole of determining essential religious practices of a religion , as there would be  high subjectivity and sensitivity in the realm of faith would be to do away with the said test . The removal of such test would be  advantageous  to all the religions, since the legitimacy of their religious practices will not be judicially determined by a subjective test. The test to determine the legitimacy of any religious practice must be strictly be based on Article 25’s restriction- “Subject to…other provisions of this Part”. This will ensure limited interreference of judiciary in religious affairs of the people while ensuring that no practices of any religious which is in contravention to the rights enshrined in Part III survive judicial review. This would ensure a harmonious co-existence of all these rights as envisaged by  the framers of our Constitution.  Thus, the scope of the article can be extended to any religious practice(s)  irrespective of their origin in a faith whose practice shall come under judicial scrutiny in the future.


Nikhil Erinjingat is a student at Ramaiah College Of Law, Bangalore.


Photo Credits: Sonu Mehta/Hindustan Times

Notes:

[1] M Siddiq (D) Thr Lrs, v. Mahant Suresh Das & Ors, Civil Appeal Nos 10866-10867 of 2010.

[2] Ibid., at p.929.

[3] Krishna Rajagopal, SC to frame issues for 9-Bench hearing on religious rights, THE HIDU,  https://www.thehindu.com/news/national/sabarimala-case-sc-to-frame-questions-relating-to-discrimination-against-women-in-religions/article30724662.ece

[4] Rintu Mariam Biju, Reciting Azaan through sound-amplifying devices not an integral part of Islam, not protected under Article 25 of Constitution: Allahabad HC, BAR AND BENCH, https://www.barandbench.com/news/litigation/reciting-azaan-through-sound-amplifying-devices-not-an-integral-part-of-islam-not-protected-under-article-25-of-constitution-allahabad-hc

[5] Ranojoy Sen, ‘Legalising Religion: The Indian Supreme Court and Secularism’ (East West Centre Washingto, 2007) at p.22-23, https://www.files.ethz.ch/isn/35334/PS030.pdf

[6] The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Thirtha Swamiyar of Shri Shirur Mutt, (1954) SCR 1005.

[7] Indian Young Lawyers Assn. v. State of Kerala, 2018 SCC OnLine SC 1690.

[8] (1962) 1 SCR 383.

[9] 1966 SCR (3) 242.

[10] (1959) SCR 629.

[11] (1983) 4 SCC 522.

[12] (1994) 6 SCC 360.

[13] Public Interest Litigation (PIL) No. ­ 570 of 2020, Allahabad High Court (15th May 2020).

[14] Shashi Tharoor, Why I am a Hindu, p.2 (2018).

[15] Shashi Tharoor, Why I am a Hindu, (Chapter- My Sacred Book), p.52 (2018).

[16] ekam sat vipra bahudha vadanti which means- That which exists is One; the sages call It by various names.

[17] Rig Veda, X.129

[18] Shampa Devi, Conflicting rights: equality or religion?, DECCAN HERALD (Oct. 15, 2018), https://www.deccanherald.com/opinion/perspective/conflicting-rights-equality-or-697994.html

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