RELIGIOUS FAITH AND CONSTITUTIONAL MORALITY: A CASE STUDY OF SABRIMALA TEMPLE
Raj Krishna and Shashwat Pratyush
“You can never separate social life from religious life.”
– Alladi Krishnaswamy Ayyar
Debates on the Fundamental Rights in the Advisory Committee (April 1947) In September 2018, the Supreme Court of India by a 4-1 majority ruled in favor of lifting the restriction on women of age group 10-50 years from entering the Sabarimala temple. The Apex Court in its judgment held that “the practice of barring entry to women between the ages of ten and fifty violated their fundamental rights to equality, liberty and freedom of religion, Articles 14, 15, 19(1), 21 and 25(1).” As a result Rule 3(b) of the 1965 Kerala Hindu Places of Worship (Authorization of Entry Act) which provided for the exclusion of “women at such time during which they are not by custom and usage allowed to enter a place of public worship” was struck down. However the Supreme Court in its review petition judgment decided to keep the Sabarimala review petition and other writ petition pertaining to Sabrimala shrine pending because there are certain constitutional questions pertaining to the right to religion which directly affected the Sabarimala issue, were bound to come up in some of the other cases pending before the Court.
Religion is a sine qua non of human existence. Religion has been at the center of human societal existence since time immemorial. India is a pluralistic society and a country of religions. Religion has always been very volatile subject in India both before and after independence. Most of the Indians are incurably religious. Religion has played a tremendous role in the development of Indian society.
Thus the emergence of India as a secular state in the mid twentieth century was a remarkable social, political & religious phenomenon. Equal treatment and religious tolerance are the essential parts of the Indian Secularism. Donald E Smith explains that Secularism implies non-communal or non-sectarian, but it does not mean irreligion.
It means respect for all faiths and religions. State does not recognize any particular religion as state religion. In India all religious group enjoy the same constitutional protection without any approbation or discrimination. Freedom of religion has been bestowed by the constitutional protection. Part III of the Indian Constitution provides for the religious freedom in India.
Indian Constitution and Right to Freedom of Religion
Articles 25 to 28 of the Indian Constitution confer rights relating to the freedom of religion not only on citizens but to all persons in India. Article 25 (1) of the Constitution states that “every person and not only Indian citizen the freedom to profess or practice religion subject to public order, health, morality, and other provisions relating to Fundamental Rights.” However the State is not prevented from making any law regulating or restricting any economic, financial, and political or other secular activity which may be associated with religious practice
; or any law providing for social welfare and reform, or for throwing open of Hindu religious institutions of a public character to all classes and sections of the Hindus
. Furthermore the rights conferred on persons and religious denominations by Article 25 are not absolute. Their exercise is subject to maintenance of public order etc… Article 26 of the Constitution gives special protection to religious denominations. Article 27 of the Indian Constitution states that, “no person shall be forced to pay any tax for promotion of any religion.” However, this provision does not invalidate levy of a fee to provide some services.
The concept of secularism was not expressly incorporated into the Indian Constitution at the time of commencement, though it was deeply embedded in the constitutional philosophy. Eventually in 1976, vide 42nd Amendment of the Constitution, the word “secular” was introduced into the Preamble of the Constitution.
In the case of S.R. Bommai v. Union of India the Supreme Court of India held that “Secularism is a part of the basic structure of our Constitution.” In recent times the constitutional provisions pertaining to religion has raised important questions of interpretation. However on a whole, the Supreme Court of India has interpreted these provisions with a view to promote inter-religious amity, harmony and accord and the same has also been accepted by society at large.
Essential Religious Practice Test in India: A Conceptual Discussion
The concept of Essential Religious Practice Test is nowhere mentioned in the Indian Constitution. It is a result of judicial activism or rather judicial over-enthusiasm. Dr B.R. Ambedkar was the first person who spoke about the essential religious practice doctrine in India. In one of his speeches he said that, “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 which are essentially religious.”
The term “Essential Religious Practice” was thus meant to be used with an objective to distinguish between religious activities and secular activities. It is because at that time there were certain activities which were propagated under the veil of religious activities but were actually contrary to the basic tenets of Constitutional principles. As a result the phrase “essentially religious” was brought into existence to fight against the perpetration of immoral and irrational activities in the name of religious freedom.
The Essential Religious Practice Test was for the first time propounded by the Supreme Court in the case of The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Thirtha Swamiyar of Shri Shirur Mutt. The Apex Court in this case observed that “what constitutes an essential part of a religion will be ascertained with reference to the tenets and doctrines of that religion itself. ” The court, in that case, adopted a very safe passage by stating that “what constitutes the essential part of a religion is to be decided with reference to the doctrines of that particular religion itself.”
However in 1958 we observed a shift in the Court’s approach of interpreting Essential Religious Practice Doctrine. In the case of Durgah Committee, Ajmer v. Syed Hussain Ali and Ors, the Supreme Court was asked to decide upon the validity of Durgah Khawaja Sahet Act, 1955 which it eventually upheld.
However the Court in this case observed that “whilst we are dealing with this point it may not be out of place incidentally to strike a note of caution and observe that in order that the practices in question should be treated as a part of 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 make a claim for being treated as religious practices within the meaning of Art. 26. Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous an 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 Art. 26 may have to be carefully scrutinized; 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.”
The Supreme Court with this judgment expanded its role in interpreting not only what it means to be “religious”, and what is “essential” and what is not, but also to rationalize religion and to purge it of “superstitions”. The most problematic aspect of this kind of interpretation is that the Court now acts as a gatekeeper for letting in only what is the essence of the religion while discarding other things from the ambit of religious freedom. This in turn adversely affects an individual’s religious liberty and autonomy. Additionally, the Courts also showed reluctance in making guidelines for deciding what constitutes essential to a religion.
In the case of Sardar Syedna Tahir Saifuddin Saheb v. State of Bombay, the Supreme Court observed that “excommunication can be considered as an essential religious practice of the Dawoodi Bohra community and therefore the legislature is not supposed to reform a religion out of existence or identity.”
This was then followed by the case of Shastri Yagnapurushdasji v. Muldas, wherein the Satsangi group argued before the Court that they should be recognized as an independent denomination following the teachings of Swaminarayan. However the Court rejected that claim and observed that “such claim of the Satsangi Group is founded upon superstition, ignorance and a complete misunderstanding of the true teachings of the Hindu religion and of the real significance of the tenets and philosophy taught by Swaminarayan himself.”
In the case of SP Mittal v. Union of India the Court was called to decide upon the validity of the Auroville Act, 1980. The Apex Court in this case held that “the teachings of Aurobindo only reflect his philosophy and not a separate religion.” As a result the Court took upon itself the task to establish the difference between the definitions of religion and philosophy.
Furthermore, in the case of Acharya Jagadiswaranand Avadhuta and Ors. v Comm. Of Police Calcutta and Ors, the Supreme Court gave Anandamargis the status of a separate religious denomination, but held that “the tandav dance could not be considered as an essential element of the religious denomination.”
In 1990, the Calcutta High Court asked the Apex Court to reconsider its decision because the Calcutta High Court opined that the courts must avoid going down to such a path wherein religious practice would become what the courts wish the practice to be. However in Comm. of Police v. Acharya J. Avadhuta, the Supreme Court for the second time denied the tandava dance the status of an essential religious practice. It is pertinent to note that in the dissenting opinion Justice AR Lakshmanan’s highlighted the absurdity of the majority decision.
The Supreme Court again applied this ERP doctrine in 1994 (Ismail Faruqi Vs Union of India) wherein the Centre’s acquisition of the disputed site in Ayodhya was challenged. The Court in this case observed that “a mosque was not essential to the practice of Islam because Muslims could offer namaz anywhere.” This judgment was widely criticized for lowering the status of Mosques in Islam.
Even in recent times our Constitutional Courts have met with several occasions wherein they have faced the question of constitutional validity of a particular religious practice.
In the case of Nikhil Soni v. UOI, the Rajasthan High Court, while dealing with the validity of Santhara practice observed that “Santhara is not an essential religious practice and therefore not protected under Article 25.” In the Shayara Bano case the Supreme Court declared the practice of Triple Talaq unconstitutional. However the Court in this case further observed that “the way in which the Courts are deciding the validity of a religious practice is not unanimous. There is a lack of clear and objective criterion for deciding the validity of religious practice under ERP Test.”
INDIAN YOUNG LAWYER ASSOCIATION AND OTHERS V. THE STATE OF KERALA AND ORS: A CASE STUDY
On 28th September 2018, India’s Supreme Court delivered a landmark judgment in the case of Indian Young Lawyers Association v The State of Kerala, concerning the entry of women into the Sabarimala temple. Four judges in 3 separate opinions ruled in favor of women’s entry, while the sole woman judge on the bench dissented. CJI Dipak Misra and Justice R.F. Nariman decided the case on the basis of essential religious practices test and also whether Article 26 was applicable in this case or not. On the other hand the dissenting opinion of Justice Indu Malhotra and the concurring majority opinion of Justice D.Y. Chandrachud discarded the essential religious practice test altogether.
The verdict triggered a slew of protests across the country. Many review petitions were filed against this verdict of the Apex Court. The 5 judge bench led by CJI Ranjan Gogoi referred the review petitions challenging the court’s decision to allow women of all age group entry into the Sabarimala temple in Kerala to a larger bench. Chief Justice of India Ranjan Gogoi in his judgment observed that “the question of whether a court can intervene in matters that are essential to a religion is yet to be decided.” As a result this review petition can’t be decided now. The authors in this essay will only be discussing about the Sabrimala judgment of 2018 and not the review judgment and developments afterward.
CJI Dipak Misra and Justice Khanwilkar’s Judgment on Sabrimala
CJI Dipak Misra and Justice Khanwilkar in this case observed that the devotees of Lord Ayappa at Sabarimala do not constitute a “separate religious denomination”.
Misra CJI and Khanwilkar J. further held that “the fundamental rights chapter of the Constitution is applicable to the Temple because it is governed by a statutory body. Furthermore women have an enforceable right under Article 25(1) to enter the temple which cannot be undermined by a contrary right of exclusion because, on facts, excluding women does not constitute an “essential religious practice” that is protected by Article 25(1). Moreover, on facts, this practice appears to have commenced only in 1950, and therefore lacks the ageless and consistent character that is required of an “essential religious practice” (para 125).” As a result CJI Dipak Misra and Justice Khanwilkar ruled in favor of the right of women to enter Sabarimala.
Justice Nariman’s Judgment in Sabrimala Case
Justice Nariman in his judgment has observed that “barring women of a certain age from accessing Sabarimala is an essential religious practice, and therefore protected by Article 25(1). However Sabarimala shrine fails the rigorous test for a separate denomination. Therefore, even if there is an essential religious practice excluding women, this practice is hit by Section 3 of the Act, which provides for non-discriminatory access to all classes of Hindus.”
In the 29th paragraph of his judgment, Justice Nariman further observes that “in case wherein there is a clash of rights under Article 25(1): the right of women to worship, and the right of the priests to exclude them. The text of Article 25(1) – which uses the phrase all persons are equally entitled to practice religion, decides the clash in favour of the women.”
Justice Chandrachud’s judgment in Sabrimala Case
Justice Chandrachud in his concurring judgment has observed that “the Essential Religious Practice Doctrine in its present form is unsustainable.” The learned judge further noted that “the judiciary should not venture into religious areas wherein it lacks both the competency and legitimacy to pronounce upon the beliefs internal to religion.”
However he came out with a new method on how courts should deal with matters of religion and faith. The learned judge observed that “courts should adopt a deferential attitude to such cases touching on religious matters and deem the practices under scanner as essential, but nevertheless investigate whether such customs, beliefs or usages violate fundamental rights of an individual.”
Justice Chandrachud’s judgment provides a powerful articulation of a transformative interpretation of Articles 25 and 26 which further provides a strong intellectual foundation for advancing such a reading in the times to come.
Justice Malhotra’s dissenting opinion
Justice Malhotra in her judgment has criticized the essential religious practices test. Justice Malhotra observes that “the ERP Test has been consistently applied by the Courts in a very inconsistent manner. The essential religious practice does not have a fixed criterion and is often determined at the whims and fancies of the judge hearing the case. The test enables judges to become prophets and determine what falls within the contours of a religion and what does not. This ultimately leads to inconsistent outcomes inasmuch as, it seeks to rationalize religion and purge it of superstitions.”
But having held thus she suggested no alternative except to hold that “it is not for the courts to determine which of these practises of a faith are to be struck down, except if they are pernicious, oppressive, or a social evil, like Sati.”
“In the dialogue between constitutional freedoms, rights are not isolated silos. In infusing each other with substantive content, they provide a cohesion and unity which militates against practices that depart from the values that underlie the Constitution – justice, liberty, equality and fraternity. Substantive notions of equality require the recognition of and remedies for historical discrimination which has pervaded certain identities. Such a notion focuses on not only distributive questions, but on the structures of oppression and domination which exclude these identities from participation in an equal life. An indispensable facet of an equal life, is the equal participation of women in all spheres of social activity. ”
-Justice D.Y. Chandrachud
Nowhere else in the world Constitutional Courts pronounce judgments on theological creeds and canons. Till date courts in India have determined the scope of the freedom of religion clauses in India’s Constitution by determining whether a practice over which protection is sought is essential to religion or not. However a better alternative is possible.
Legal scholar Gautam Bhatia as an alternative has proposed an anti- exclusion principle. This principle can be applied in cases wherein the constitutional protection is sought for religious customs or practices, and where there is a conflict within the religious communities. The anti-exclusion principle states that the Government and the Courts must respect the integrity of the religious groups except in cases where in the said practice leads to the exclusion of individuals from economic, social, or cultural life which would adversely affect their dignity.
The form of analysis is similar to that of anti-discrimination law. However it is pertinent to note that the Anti-Exclusion principle cannot be applied in cases where in the State controls the religious institutional property. These cases will continue to be subject to the religious/secular distinction drawn by the constitutional text.
The Indian Constitution recognizes group autonomy because in various occasions community promotes individual freedom and dignity. Living in group is essential for one’s self-development. However this very group in certain instances can also restrict the freedom and dignity of an individual and it is in those circumstances the Courts are supposed to step in and balance the competing claims.