The Triple Talaq case decided by the Supreme Court has won it a lot of appreciation in the last couple of months. A catena of similar judgments has been delivered by constitutional Courts in India in the recent and not-so-recent past in the matters of regulating noise pollution levels – be it the azaan or during Diwali, regulating the formation of pyramids (dahi-handi) during Janmashtami or even the ban on animal sacrifice for religious festivals.
Although each of these individual cases seemingly stems from a completely different subject area, the common strain that ties all of them in one long chaotic web is the consistent application of the inconsistent principle called the Essential Religious Practices test.
This test was coined by the Supreme Court way back in the year 1954 in the case of The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Thirtha Swamiyar of Shri Shirur Mutt. The Court, in this case, mentioned for the first time that what constitutes an essential part of a religion will be ascertained with reference to the tenets and doctrines of that religion itself.
So, what does the Essential Religious Practices test translate to in effect? This doctrine gives birth to an unstable system that gives judges the discretion to decide each invocation of Article 25 on its own merits, depending on which religion the petitioner belongs to. Even an elementary reading of this doctrine will immediately expose how flawed it is and that it is blatantly violative of Article 14.
That fundamental rights must be read harmoniously is trite law. That despite it, a doctrine such as the essential religious practices test has been coined by the Supreme Court is what is appalling.
The essential religious practices test baldly ignores the phrases “Subject to…. the other provisions of this Part” (namely Part III) and “equally entitled to”, hence further cementing the intention of the Article to be in perfect consonance with Article 14.
To highlight how this doctrine has led to mayhem over the years, it is important to discuss a few cases in which it has been implemented.
While deciding the case of Durgah Committee Ajmer v. Syed Hussain Ali and Ors, the Supreme Court held that sometimes there are practices, even secular ones, usually considered as part of the religion, that might actually be superstitions and not essential to the religion, and hence excluded from the protection of the Constitution. Through this judgment, the Court expanded further 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”. If this isn’t a slippery slope, what is?
In the case of Sardar Syedna Tahir Saifuddin Saheb v. State of Bombay, where the Court was to determine whether excommunication can be considered to be an essential religious practice of the Dawoodi Bohra community, the Court answered in the positive saying that the legislature was not permitted to “reform a religion out of existence or identity”.
The correctness or lack thereof of each of these decisions is of little relevance here. What must be focused upon is that the Supreme Court has failed to arrive at these decisions based on constitutional tests.
In the case of Shastri Yagnapurushdasji v. Muldas, the Satsangi group’s claim to be recognized as an independent denomination following the teachings of Swaminarayan was rejected by the Court on the ground that such claim is,
“founded on 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.”
Besides the fact that what is religion to one, might be superstition to another, it is not for the Court to grant to or disinherit from any individual or group, the status of a separate religious denomination. Any individual or group of individuals must be equally free to follow their traditions/rituals as long as the same are not barred by the restrictions given in Article 25, namely public order, morality, health and the other Articles of Part III.
The question is not just how the Court can venture into this area, the question is why should it?
In the case of SP Mittal v. Union of India, while dealing with the validity of the Auroville Act, 1980, the Court held that the teachings of Aurobindo only reflect his philosophy and not a separate religion. It thus took upon itself the tall task of establishing the difference between the ‘definitions’ of religion and philosophy. What turns out to be a complicated question for even professional theologians to accurately answer even after years of study, was answered with confidence by the Supreme Court in less than two years!
In the case of Acharya Jagadiswaranand Avadhuta and Ors. v. Comm. Of Police Calcutta and Ors, the Court accorded to the Anandamargis the status of a separate religious denomination, but held that because of recent affirmation of this worship, the tandav dance could not be considered as an essential element of the religious denomination.
In 1990, the Calcutta High Court asked the Supreme Court to reconsider this decision, stating that the courts must avoid the tendency to go down a path where religious practice would become what the courts wish the practice to be.
In Comm of Police v. Acharya J. Avadhuta, the Supreme Court denied the tandava dance, for a second time, the status of an essential religious practice. Justice AR Lakshmanan’s dissent in this judgment, however, highlights the absurdity of the majority decision.
“…essential practices are those that are accepted by the followers as a method of achieving their spiritual upliftment and the fact that such a practice was recently introduced cannot make it any less a matter of religion”.
This dissent aptly highlights the lack of uniformity, much less clarity, in the mind of the Court itself as to what it considers to be essential religious practice. Does it suit a constitutional court to use such a half-baked, whimsical doctrine as the basis for deciding precious fundamental rights issues of a billion-odd people?
More recently, the Supreme Court in 2014 refused to vacate an order of the Himachal Pradesh High Court banning animal sacrifice during the festival of Kulu Dushara and in other religious rituals of the Kulu region of the state. Just one year later, the same Supreme Court, while refusing to entertain a public interest litigation that wanted a ban on the practice of killing of animals in the name of religion, held that “it cannot close its eyes to centuries old traditions”!
Such a judge-centric approach to justice sans an iota of consistency or stable first principles is positively bothering, even if it demonstrates itself mostly in the form of interim orders.
A thorough reading of these judgments will reveal a few voices of judicial reason that keep surfacing from time to time, but sadly only as dissenting opinions. It is time to give strength to those voices and alter the course of this troubling jurisprudence that has ruled the roost for half a century.
The Court, while upholding or striking down practices, or even setting legal norms to be lived up to in its PIL jurisdiction, has to hold that the same is equally applicable to all citizens, irrespective of religion or irreligion.
The issue of determining noise decibel levels is an immediate and relatable example. If the Court decides that noise decibel levels cannot be allowed to cross a certain decibel level for residential areas, then the same should be applicable minus religious obstacles.
The essence of this argument is that, while a decision is being arrived at in a constitutional capacity, the Courts should be completely unconcerned with religion. Article 25 was never meant to be an absolute protection to be interpreted and applied independently of other provisions of Part III. The freedom of religion must be reconciled with the right of the state to employ the sovereign power to ensure peace, security and orderly living, without which the constitutional guarantee of civil liberty will be a travesty.
The Court’s development of the Essential Religious Practices test reflects an interventionist attitude. Applying the test has made it convenient for the courts to describe a practice as ‘’not essentially religious’’, as opposed to holding that it affects public order, morality, health or any other Fundamental Right, which would require a deeper analysis and equal application thereafter.
The Court has practically transformed itself into a theological wizard, transgressing its role as a constitutional authority by a large margin. It has also, by concretizing what is essential and unessential, snatched away from various religions the chance to reform themselves if they so wish.
What needs to be reflected upon by the Court is why should it matter whether the essential character of a religion is destroyed or its theology rendered irrelevant if the same is violative of other parts of the Constitution and is against established principles of public order, morality and health? The Constitution does not provide any such immunity, so why must the Court?
Religion has long been considered to be the opiate of the masses. The fact that a right as important and sensitive as the fundamental right to freedom of religion is being treated by the apex court with such an insouciant attitude, is both disappointing and dangerous, and is nothing but a ticking time bomb unless immediately rectified.
The author is an Advocate practicing in the Bombay High Court and the Supreme Court of India. You can write to her at firstname.lastname@example.org.