FREEDOM OF RELIGION AND ESSENTIAL PRACTICES DOCTRINE- DELINEATION OF EVOLVING CONTOURS AND ROLE OF JUDICIARY
Author: Adarsh Kumar
Co-Author: Anurag Tiwari
Damodaram Sanjivayya National Law University, Visakhapatnam, Andhra Pradesh
The everlasting pervasion of religion in one’s daily life doesn’t remain a convoluted fact and gets heightened with infusion of morality into the same. The nascence of the pervasion gets evinced by Christian fundamentalism to the revivalist Islam to the spread of Catholicism and the rise of Buddhist nationalism to the Hinduism in Asian Paradigm and the disputes pertaining to the same are based on substantive values and policy preferences. Greater amount of clarity is to sought with regards to these by referring to its relation with the Constitutional text and the synergy can be surmised as- -“The goal of a constitutional text must not be only a structured government, but a constructed political system, one that can guide the formation of a larger constitution, a way of life conducive to the constitutional democracy and must transpire into the well laid formal arrangements”
The domestic paradigm is not left short of the religious conflicts, however it gets tested at the helm of the “essential practices doctrine” and the constant tussle over the role of judiciary over the adjudication of the religious matters and the opposition gets reasoned as-“The unelected judiciary”. However, it has been a common instance that most of the times the basic precepts of- “Justice, Equity and Good Conscience” gets diluted in the name of customs and practices and the prevalence of activism of the judiciary has over the years instead of countermanding its prescribed role has gone to a fair distance to ensure gender parity and contemporary instances such as the “Sabrimala Judgment” and questioning the “FGM” practice readily attest to the same and thus giving way to an everlasting commitment to Constitutional morality instead of succumbing to the populist misconceptions
FREEDOM OF RELIGION AND ESSENTIAL PRACTICES DOCTRINE- DELINEATION OF EVOLVING CONTOURS AND ROLE OF JUDICIARY
HISTORICAL PERSPECTIVE- NASCENCY TO POIGNANCY
The rule of law and the rule of god have in a recurrent fashion been antithetical to each other as they are diametrically opposed and there exists a plethora of reasons for the same, however it is an undeniable fact that they did share certain aspects which led to the inference of congruity between the two, each with its own scriptures which are sacrosanct, community references etc. The potential conflict between them got intensified by the initial skirmishes at the intersection of the various global trends pertaining to the same.
The inception of the conflict can be traced back to the surge in the Christian fundamentalism to the revivalist Islam to the spread of Catholicism and the rise of Buddhist nationalism to the Hinduism in Asian Paradigm and a common link being the sheer infusion of religion with morality as even today the same is deeply embedded within all the religion laced activities, however religion as of today still holds a great deal of vengefulness towards the basic tenets of secularisation in the contemporary context. The major clash can be seen between religion and constitutionalism on the front of substantive values and policy preferences.
In the contemporary secularised nations the formerly granted role to religion is blatantly supplanted despite the fact that secular constitutionalism still differentiates between the sacred and what is profane, however the omnipresence of religion in the lives of people gives religion an edge and the same is well complemented by the words of Benjamin Berger, who in an astute fashion observed:- “The religious conscience ascribes to life a divine dimension that infuses all aspects of being, the authority of divine extends to all decisions, actions, times and places in the life of a devout”
The beginning of the very piece shall be a blatant attempt to attach sincere amount of discernment as to the existence of a synergetic relationship between the liberalistic paradigm and the prevalent normative diversity. One can with sheer ease and grace attach a great deal of relevance with the words-“The goal of a constitutional text must not be only a structured government, but a constructed political system, one that can guide the formation of a larger constitution, a way of life conducive to the constitutional democracy and must transpire into the well laid formal arrangements”
The simple picture of liberalism is quite reflective of the “objectivity” quotient and thus connotes conformity to the well-laid tenets of the limited government principle and thus establishing an equilibrium situation as between one’s private freedom and the prevailing power. However, as we delve into the debacle one of the major decried notions as being that of “Indoctrination” and “radicalization” entailing a perfected intellectual homogenization and much of relevancy can be traced back to the hidden notion that the 1st amendment must not only protect the beliefs and freedoms but must embark upon its formation and thus negating the irreverent notions towards intellectual political sovereignty
It must be noted that it has been for ages that there is seen an existence of an enigmatic relationship between Religion and state thus demanding a pedantic approach and much of reminiscence can be attributed to the Church and state relationship as stated earlier as at that point of time a perfect ground was laid down for the buttressing the interventionist attitude of the church during the middle ages in Europe and political legitimacy was the bi-product of recurrence, but soon the same faded into obscurity and thus entailing a perfect interplay between equality and religious freedoms thus entailed the development of a developed secularisation
As we delve further the same suffers from an auto limitation as the very notion of faded role of religion, and adding to the same the very fact that the same hasn’t transpired into a global phenomenon and much of poignancy can be attached to the very fact that mere reduction of religious communities would entail a decreased share of believers. If one infers that mere separation of state and church would stand as a monolithic to the strengthening of the secular fabric, thus would be fallacious as it is not logically concretised, It can be however be safe to infer that it was a visage deserving fair share of veneration and stood as the nascent version of the present secular fabric. As we delve further, there was seen development of two new alternatives:-
1) Separation of church and state
2) Protection of religious pluralism along with uniformity between church culture and values
The theological perspective shall hold a great deal of relevancy to the whole debacle as at the particular juncture the words of J.S Mill would be highly informative- “Language has a core attribute as being a cohesive materialisation of the thoughts of our elders and same forms inheritance of all that is yet to come”.The words pertaining to the concepts of sovereignty and human rights are fairly indicative of experiences and constitutionalism and all are the spawn of long historical developments which has a perfect constant and that being Religion
THE DOMESTIC PARADIGM AND THE ESSENTIAL PRACTICES DOCTRINE- THE PAST AND THE PRESENT
The prevailing democratic reality as being contemporaneous to the whole religion debacle is well characterized by the growing role of courts in politics, as the same is marked by an increased role of activists who in a regular fashion utilize the constitutional machinery to foster their values and ideas. And the same holds manifest primacy worldwide and is visible in the enactment of bills and judicial review powers. The same turned out to be a buttressing foundation of the whole democracy as it increased the reach and ambit of the populace.
Delving further as discussed earlier, the major premise is that the societies which are founded upon deep religion-based division to experience a recurrent struggle over the public sphere. The panacea of the governmental interference being the separation of the two as being the classic liberalistic notion.
By taking the basic tenets of reason and supplementing it with that of the historical context, it can be easily surmised that the constitutional principles have a greater deal of prevalence as compared to that of certain advancements by politicians. The judges around the world have also been aware of the prevailing phenomena and thus they are considered as the present guardian of the new era of life, liberty and expression, and much of it can be attributed to the events which have made us realize the importance of human rights as being the World War ii
Delving further, it must be noted that the whole judicial empowerment phenomenon has generated ample debate over the role of the courts, however much of criticism is also faced by the same as a demand is placed upon the empirical foundation of its efficiency and is considered as an unelected body can veto the popular executive choice and yet another point being that of retraction from that of compromise and consensus-based political progress
Much of poignancy can be attached to the very point that whether the attitude of judiciary towards all the prevailing conflicts involving one’s faith is fair enough, thus connoting whether an activist label attached to the same or the attitude conforms to the Separation of power doctrine. As stated the very separation of powers doctrine has long been a contentious issue as a smooth working of a state works on a supposition that no discord prevails among the state’s organs, however the same is a sad account as our democracy has witnessed various instances where an administrative void has been created thus enlarging the vacuum
A poignant observation of Lord Denning where he went on state that- “A judge cannot simply fold his hands when a defect surfaces then he must set forth to find the true legislative intent and must supplement the same with written words so as to give it force and life. The judge must not alter the material of which the act is woven, but he can and should iron out the creases”. The religion quotient however stands on a different footing as compared to other ones as the same falls within the core of one’s individual freedom. Here the contours of secular character do play a core role as the same connotes the neutral character of the state and a reasoned differential behaviour merely for the uplifting the disadvantaged sect.
Taking into account the attitude of the judiciary towards religion as a whole holds paramount importance. As already stated, the definition of religion with regard to the constitution along with the fact that how the judiciary has defined the sacred and the Secular while adjudicating upon cases. The primary basis for the court is to dismiss the practices which are not fundamental to the religion itself, therefore elimination of all the extraneous factors involved. As concerning the approach of the US Supreme Court, they tend to reject all practices which countermand the basic tenets of Secularism, and the prime example of the same is the case and thus it can be surmised that the American model of Secularism is assimilative in nature as the political principles in the development of American Nation, whereas ours is ameliorative in nature
The genesis of the essential practices doctrine can be traced back to the speech of Dr.B.R Ambedkar who during the Constitutional assembly debates stated that:-“The scope of religion is multitudinous and covers the aspect of life and death and we should strive to limit the definition of religion and we shall not extend it beyond what is essential in nature”. The striking aspect of the attitude of the judiciary while adjudicating upon matters pertaining to religious matters is to analyze it on the modernist front rather than from the lens of the practitioners of religion, however, over the years this role of the courts has been questioned as no express constitutional authority is granted to them
It must be noted that the “essential practices” have been derived from the principles of “Justice, Equity and Good Conscience”. A case in point as regards to the essential practices doctrine was enunciated in the case and was responsible for laying down guidelines as to what constitutes a religious denomination, the major contribution of the decision was that it included rituals and other practices as a part of one’s religion thus giving a wide definition. Justice B.K Mukharjee had drawn a comparative construct and rejected the observation of the US Supreme Court case definition of religion in which was found inadequate according to him, however, the case a wider definition of religion was given and was supported by Justice B.K Mukharjee where the protection was not only granted to “Liberty of Opinion” but all acts did pursuant to the same. It must be noted that the limitations imposed upon Freedom of religion on the front of Morality, Public order and Social protection can be attributed to the US and Australian Constitution
A perfect synchronicity can be maintained by taking heed of the case, where unlike the Shirur Matt judgment, the holy scriptures were taken into account. In this case, the issue was whether a woman can conduct perpetual worship at a burial place. Upon the perusal of the scriptures, it was observed that the Shastraic basis is a prime condition for dedicating a place for perpetual worship, but must be conducive to the needs of modern society and must have wide recognition in the society and as opposed to the Shirur Matt case, the court brought Public Policy at the forefront
The case where the issue was whether the Madras Temple Authorisation Act removed the bar on Harijans to enter the temple which was made for worship only for the Brahmins Saraswats. The major clash occurred between Article 26 and Article 25(2)(b) the former spells out the right to manage the private affairs of a place made for worship, the latter which talked of what constitutes as an essential religious practice. The major contention as put forth by the petitioners represented by C.K Daphtry was the invalid nature of the exclusionary practice undertaken. In this matter, Justice Aiyer placed reliance on Scriptures and greater importance was given to that of Article 25(2)(b) of the Indian Constitution which called for implied limitations on places of worship however it did allow exclusion of the lower castes at certain instances, but it was within the scope of authority of the court to decide as to what constitutes as essential to one’s religion
Delving further into the domestic context, the very conception of having a theocratic arrangement is wholly unwelcomed in nature, however the undercurrents always had a proper place for the same in the entire national setting. Much of relevancy can be attached to the case where the Supreme Court observed that-“Secularism is more than mere passive attitude of religious tolerance, but is an active and positive concept of equal treatment of all religions” by the same a common assertion that passed on was that the state allows the citizens to profess and practice religion, it impliedly doesn’t allow them to perform it in non-religious matters
It was in the case which did spark an initial impression of countermanding the entire secular arrangement as prevalent in the nation, as Hinduism was given the stature of “not merely a religion, but a way of life”. The very term “Secular” got added in the year 1976 after the 42nd Amendment, 1976 and had differing features from the US “Non establishment” clause as being the wall of separation connoting neutrality, however taking heed of the domestic context, the result is the essential and non-essential functions and the former is afforded the judicial protection and as stated earlier one simply cannot attach an absolutist connotation to Article 25-28 of the Constitution of India. The whole approach as concerning the domestic context can be characterised as “Ameliorative secularism” and as the times progressed the approach has been a mixture of strict intervention, non-interference and equidistance as the case may demand and the modernist imperative has been a perfect ground for further progression. The major test of discernment readily remains the essential test doctrine, reflected in the case where the performance of “Tandava” did not form a part of essential practice of Aanand Marga and collecting Gifts for charitable purpose do not form a part of essential practice of religion and similarly a clear demarcation was made between philosophy and religion
Now delving further, greater deal of clarity is ought to be sought as to the essential religious practices as poignancy can be sought by referring to the words of Gajendragadkar who stated that- “It is true that the decision regarding the question as to whether a certain practice is a religious practice or not, as well as the question as to whether an affair in question is an affair in matters of religion or not, may present difficulties because sometimes practices, religious and secular, are inextricably mixed up. This is more particularly so in regard to Hindu religion because as is well known, under the provisions of ancient Smritis, all human actions from birth to death and most of the individual actions from day to day are regarded as religious in character. Though the task of disengaging the secular from the religious may not be easy, it must nevertheless be attempted”
It must be noted that the essential religious freedom has been given a closer judicial scrutiny as dispelling all elements of superstition falls as a prime concern for the state, thus being a valid cause for empowering the state with the same, however the same was not free from tussles as the Para goes-“though the impetus for the court’s rationalization and homogenization of religion has its origins in a liberal-democratic conception of secularism and the nation state, as exemplified by India’s first prime minister, Jawaharlal Nehru, and philosopher-President Sarvepalli Radhakrishnan, there is a significant overlap between the judicial discourse and the ontology of Hindu nationalism”
One way of construing the work of the judiciary is that its work of dispelling all the ambiguities surrounding the usage and interpretation of the legal semantics, as one can see the expanded version of the case where the whole observation went on as follows:- “Bareheaded devotees complained they were prevented by the covered-headed ones from entering the mandir and worshipping there. The High Court, quoting precedents, underlined the general principle according to which the right to worship a deity according to one’s own belief is of a civil nature”
In order to have a middle path the Supreme Court of India has most of the times in its decision have gone for certain interpretations which can be termed as having innovativeness and the same necessitated practical necessity. It must be noted that one of the prevalent feature of the religious paradigm of the Indian society is heterogeneous and judicial intervention in the same includes- Allowing Muslim Dawoodi Bohras to excommunicate members for religious reasons as reformation cannot dispel the religion out of existence and protecting the Jehovah’s witnesses after refusing to sing the national anthem in school
CONTEMPORARY INSTANCES- THE DEEPENING
Adding another contemporaneous instance with the subject matter, we ought to refer to the case, where the constitutionality of “Female Genital Mutilation” was in question. A greater deal of poignancy would be achieved if the same is to examined under the tenets of “Essential Religious Practices”. The practice of FGM involves circumcision and total or partial removal of Female genitalia, upon taking heed of the historical perspective the whole objective of the practice is to ensure sexual fidelity of females belonging to Dawoodi Bohra community
It is a noteworthy fact that the complications that arise out of this practice tend to be fatal and includes- Excessive bleeding, Shock, Haemorrhage, Menstrual problems etc. As submitted by the Petitioners the same is to be read with reference to Section 319-326 of the Indian Penal Code, 1860 which defines Hurt and various degrees of the same and Section 3 of the POCSO Act, 2012 which defines penetrative sexual assault, It however remains a saddening thing that no legislative framework pertaining to the prohibition of FGM exists in India
The major infirmity of the practice is that it doesn’t stand on the footing of Article 21 of the Constitution of India, as observed in the case where it was observed that:-“When we talk of sound and stable system of administration of justice, all the stakeholders in the said legal system need to be taken care of”. Another feature that adds to the gravity of the situation is the practice of being excommunicated for the fear of speaking out against the grisly practice is highly entrenched. A sliver of hope exists as Maharashtra Prohibition of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016 which makes excommunication by any local body an offence and is punishable with a term of 7 years or a fine of Rs.5 lacs and the legislation has equal applicability over the Bohra Community as well.
As observed in the case-“Life is precious in itself. But life is worth living because of the freedoms which enable each individual to live life as it should be lived. The best decisions on how life should be lived are entrusted to the individual. They are continuously shaped by the social milieu in which individuals exist. The duty of the state is to safeguard the ability to take decisions – the autonomy of the individual – and not to dictate those decisions. Life’ within the meaning of Article 21 is not confined to the integrity of the physical body. The right comprehends one’s being in its fullest sense. That which facilitates the fulfilment of life is as much within the protection of the guarantee of life”
It is imperative on our part to question the validity of FGM at the helm of Freedom of religion as enshrined under Article 25-28 of the Constitution of India, 1950. It can be easily surmised that the FGM practice connotes unlawful bodily invasion of a female as very well reflected in the case where it was observed that-“No state recognition can be given to any organisation that discriminates against women” as majoritarian views laced with morality of a tradition must not overshadow the individual autonomy of an individual”. It must be noted that the rule of law extends to everyone and to the denominational temples as well. A practice may be a part of religion but may not form an essential part of the same and thus couldn’t be afforded protection under Article 25-26
Adding to the same, the case,where the Rajasthan High Court declared the practice of Santhara as illegal in nature, for the practice connoted fast until death when the human body does not serve the purpose of life anymore. As blatant it may seem, the practice couldn’t withstand the judicial scrutiny when the same was examined at the helm of “Essential religious practices”
Similarly the case where the primary issue was validity of the basis of disallowing women from 10-50 years? Whether the practice of exclusion was a part of the Essential religious practices?, Whether a separate religious denomination could be afforded to the Ayyapa Temple?, Whether Rule 3(b) of Kerala Hindu Places of Worship Act, 1965 is Ultra Vires to the Act?
Analysing the same the Supreme Court in majority held as for the first issue that the basis fails to satisfy the requirements of Article 14, 15 of the Constitution of India. In the entirety of the judgment the most poignant issue to be addressed is that whether there can be accorded status of separate religious denomination to the temple. The Supreme Court did not accord the temple the status of a separate religious denomination as in Para 88 of the judgment. The primary requirements for constituting a separate religious denomination are:- “Distinctive beliefs, Separate name and a common organisation”
The factors which motivate the reasoning being the public nature along with other temples to Lord Ayyapa where such inhibitions do not apply summed with the fact that no exclusionary practice could be claimed to be valid at the helm of “Essential religious practices” under Article 25(1) of the Constitution of India. Along with the same no concrete evidences have been placed to back up the immemorial antiquity of the said practice, and most importantly Section 3 of the of Kerala Hindu Places of Worship Act, 1965 prohibits discrimination against any class and the word class is inclusive of “Gender” as well thus being Ultra Vires to the parent act. It is pertinent to note that “morality” aspect was also involved and Justice Deepak Mishra along with Justice Khanwilkar observed that the term “Morality” must not succumb to populist misconceptions but rather to be construed as constitutional morality
The basic precepts which tend to operate every tenet of law is that of Justice, Equity, Good Conscience, and the ever present need of a transformed social order combined with elements of constitutionalism.The transformation which in turn spells out the need to have a transformed social and egalitarian order which in turn is termed as transformative constitutionalism which holds its root to the South African Constitution. As already stated, the activist label as attached to the judiciary can be well attributed to the fact that the major goal of it was to wholly dispel ills and superstitions that have grappled us in the name of custom and culture
It is a noteworthy fact the essence of transformative nature of the Indian Constitution is of vital importance as the dynamism of the constitution makes it an organic document and the same shares greater synchronicity with the elements of constitutionalism. As stated earlier the precepts of a constitution which remains transformative in nature was very well asserted by J. Chandrachud in the case as he went onto state that the presence of an independent republic and presence of independent governing systems evince a palpable transformation. The very concept also places upon the judicial arms of the state a duty to uphold the supremacy of the constitution as the same acts as an impetus for driving the country towards an egalitarian order, and the magnum opus of the democracy derives its soul and will from the core values enshrined in it. It must be noted that one of the major daunting task was the drafting of the Indian Constitution and to have some sort of clarity over the two potential thematic clashes which till today are alive and breathing, namely being-
1) State’s role
2) Religious Paradigm.
What turned out to be the panacea was the concept of “Secularism” and the same had requisite amount of dissimilarity with that of the liberalistic wall of separation model. It must be noted that what secularism entailed was a neutral attitude of state towards religion and the interventionist approach of the state for upholding the magnanimity of the state and complementing its role as a Welfare state as contemplated under Article 38 of the constitution of India. It is ought to be noted that the religious freedoms have been defined both as a collective right and an individual right, limited by interests in the public order and the ever honest attempt of the state to enhance the inclusiveness quotient and much of synchronisation is done via the presence of Article 17 of the constitution of India, providing equal access to Hindus in places of public character
THE CASE OF SECULARISM-THE CASE OF USA
The case of secularism requires much more of a convoluted mind, in order to get a keen insight of the same, as it is a well known fact that the whole paradigm of religion cannot be delineated with a straight jacket formula. In order to get greater poignancy, a comparative analysis ought to be made
Delving further, if the case of USA is taken the same has seen a plethora of debates and the entire premise merely rests on the “establishment clause” and the way it was interpreted and the entire doctrine of separation of church and state and the same was easily reflected in the case, where there was seen recurrent stress upon the very neutral character of the state as pertaining to its involvement in religious matters. The very connotation of an establishment clause pertains to the very fact that neither a state nor the federal government can pass a law that would aid one religion or all of them or would give preferential treatment to an of it
Much of poignancy can be attached to the case as the same was responsible for introducing a test as per which the primary component was that the government action must be reflective of secular character and the Secondary purpose being that it must neither advance or inhibit one particular religion and this entailed “the lemon test” which mandated every action of the government to pass through the particular test thus ensuring a proper role of the government as it readily heightens the “objectivity quotient” and mandates proper scrutiny of context, history and logic for ensuring sound implementation and the same entailed two new test, one being the “Endorsement test” and “Coercion test”, as the former one connote taking into heed a reasonable man as to whether he would consider the action as an endorsement of religion
The latter one can be viewed as right to freely propagate one’s view and connotes that there must not be any form of compulsion and to be protected by any impugned actions of the state and the aggrieved person must show that he has sincere belief and was burdened by the state, it must be noted that the belief must be central and the compulsion must be direct and not incidental. It was in the case there was seen a significant shift in the whole applicability of the test and it was held that the impugned actions of the state must have a direct impact over one’s religion and any encroachment incidental in nature would not be entertain
It is an undeniable fact that despite having a neutral arrangement as regarding the entire gamut of religion in the whole process of democracy, it simply cannot be denied that it still has a major role in it. Adding to the same the entire conflict dynamics has to be construed in a rational manner and the way reason commands it. As it must be noted that exercising one’s right does not extend to creating inhibition on someone else’s and it is not an obscure fact that in the name of customs and traditions there has been seen blatant discrimination between sects, gender etc.
However, judiciary did came to the rescue and laid rational grounds for prevention of the same and the major question being that whether the same amounts to judicial overreach and conclusively the same doubt ought to be dismissed right off the bat as one lay faith on an organ of the state which has constantly guarded our rights and made us aware of our duties and one can correctly infer that the same judiciary has saved us from the scourge of various legislations which were quite unfair. Thus it can be safely concluded that the judiciary ought to be given sufficient space to work and the entire interpretation of secularism must not be given a state-oriented one but should be a wide and expansive one connoting greater inclusiveness and with the proper implementation of the same would complement the transformative aspect of the Indian Constitution.
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