Separating Chaff From Grain: Essential Religious Practices Test

A 3 judge bench of the Supreme Court recently reserved its judgment in a case whereby the petitioners had challenged Karnataka High Court decision to ban Hijab in schools. 

The issues surrounding the interplay between religious freedoms and other fundamental rights have been re-agitated.

Larger Issues 

A nine judge Bench which was constituted by the present Chief Justice of India S. A. Bobde is yet to begin to decide the larger issues. Religious freedoms enshrined under the Constitution has to be dissected and their fetter by way of right to equality will be tested. Articles 25 and 26 of the Constitution contemplate that every person shall have the freedom to profess with the riders of morality, public order and health and, the freedom to manage religious affairs. A chequered colonial struggle which left this nation with opened cracks and crevices impelled the constitutional draftsmen to enshrine explicit religious freedoms in the Constitution. Religious diversity and multifarious cultural hues had to be given primacy in the country's supreme legal document, so that people can embrace their identities and peace prevails. These religious freedoms were ordained in the Constitution to position India as a republic that will not interfere or tinker with religious practices and traditions and will ensure freedom for divergent theological pursuits.

On the one hand, religion remains the most pivotal catalyst which assimilates people in the mainstream and also instils a sense of moral wisdom in a person, but on the other it also in many ways, embarks to disenfranchise and otherise people who hold views which are incongruous to the ritualistic orthodoxy of the religion. Religion is a veiled form of oppression and still remains the bulwark of discrimination against recalcitrant sects within a religion. Entrenched religious divisions like the caste system, which has been in existence since time immemorial, have dealt a devastating blow to equality in the society.

Exclusionary Practice - Constitutionally Protected?

The seminal question, germane to the idea of the larger issues, which the Supreme Court will have before it, would be whether a religious practice which is exclusionary and defeats the mandate of right to equality deserves to be protected by Articles 25 and 26.

Essential Religious Practices Test

To decide this broad issue, Court will have to touch upon its doctrinal principle of essential religious practice also known as the essentiality test. The proposition of essentiality has its genesis in The Commissioner, Hindu Religious Endowments, Madras vs. Shri Lakshmindar Thirtha Swamiyar of Shri Shirur Mutt popularly known as Shirur Mutt case. The court, in the above-mentioned case, opted for a very innocuous route stating that what constitutes the essential part of a religion is to be ascertained with reference to the doctrines of that religion itself. The Court said: "what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or ablations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of article 26(b).”

Religious Denomination Vis-A-Vis Individual Rights

The Court declared that a religious denomination or sect assumes supervening autonomy and authority in deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no institution outside the religious realm has any jurisdiction to interfere with their decision in such matters. What this test entailed was a flurry of jurisprudential stances by the Court which are inconsistent, to say the least. In the five-judge verdict in The Durgah Committee, Ajmer and Anr vs Syed Hussain Ali and Ors’ (1961), Justice P B Gajendragadkar inserted the ‘secular’ requirement of rationality to the essentiality test. In this case the Durgah Committee denied validity to “practices (which) though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself”.

In another judgment Gramsabha of Village Battis Shirala vs Union of India and Ors’ (2014), a particular sect relied on the Shrinath Lilamrut to claim before the Bombay High Court that capturing and worshipping a live cobra during the Nagpanchami festival was an essential part of their religion. The court, however, relied upon Dr P V Kane’s Dharmashastracha Ithihas, which referred to the general Hindu practice, to dismiss this contention.

Sabarimala Judgment - Case In Point

Supreme Court in its judgment in the Sabarimala case, pronounced a majority dictum denouncing the exclusion of menstruating women from entering the religious shrine of Lord Ayappa on the ground that the deity is a celibate. By doing so, the apex court held that the practice of exclusion of menstruating women did not pass muster of right to equality and was, inter alia, against the Constitutional fabric.

The Court, in a sense, made a departure from the much-invoked test of essentiality and placed more reliance upon the virtues of constitutional morality and fundamental rights. The central theme of the present 9-judge Bench would be to consider whether the essentiality test would hold the field in the contemporaneous times when we are witnessing a juridical era of constitutional morality.

Fundamental Rights Prevail Over Religious Rights 

In Sri Venkataramana Devaru v. State of Mysore (1958), the Supreme Court examined the vires of the Madras Temple Entry Authorisation Act of 1947, which was introduced with object of eradicating “the disabilities imposed by custom or usage on certain classes of Hindus against entry into a Hindu temple.”

The court held the law as valid on the ground that statutes promulgated under clause 2(b) of Article 25 were broad exceptions to the freedom of religion ensured by both Articles 25 and 26. In this judgment, the Court deemed it fit to hold the supremacy of other rights over and above the religious rights. The conflict between religious rights and right to equality is emblematic of the presupposed inconsistency between constitutional provisions.

Case Against Essential Religious Practices Test

If the doctrine of essential religious practice or the essentiality test is accepted in its present incarnation, then no canon of constitutional law can trammel the trajectory of religious freedoms, regardless of the discrimination or indignity they perpetuate. This test subscribes to the unacademic hypothesis, that any essential religious practice, no matter how patently wrongful, is protected by the law of the land as freedom of religion. In the absence of caveats to this yardstick, the Court has since its inception, been reluctant to dissect it further and groom its contours.

In State (NCT of Delhi) v. Union of India (2009), the then Chief Justice Dipak Misra wrote that courts must interpret constitutional provisions “in the light of the spirit of the Constitution”. “Constitutional morality”, he added, “means the morality that has inherent elements in the constitutional norms and the conscience of the Constitution.” Another judge in that case wrote that constitutional morality was “an expectation of behaviour that will meet not just the text but the soul of the Constitution.” Constitutional morality, which is the heart and soul of the Constitution, would never let a vice that discriminates a section of society in the garb of religious freedoms survive. If we look up to the constituent assembly debates around religious freedoms, we will be compelled to realise that the Constitution makers did not suggest even remotely, that religious freedoms would prevail over and above the other fundamental rights including right to equality.

Religious Freedoms Contravene Constitutional Morality 

The Constitutional morality is a newly devised postulation by the Supreme Court. Its edges are indefinite and fluid. Much like the basic structure, constitutional morality too, is an area which is imprecise and thus amenable to judicial discretion. Many would argue that this doctrine stretches the jurisdiction of the court and allows it to decide unfathomable intricacies. In my humble opinion, the constitutional courts were established with the mandate to ensure the rule of law in the society. With an increasingly belligerent Executive at the helm, rights envisaged by the Constitution are hammered in a routine manner. The grand scheme of the Constitution deserves to be expounded before the republic.

This is what constitutional morality prescribes. Constitutional morality is the abstract spirit of the Constitution which cannot be construed from its text. Religious freedoms under the Constitution, no matter how robust, do not give carte blanche to discriminatory religious practices. Religious practices which derive its authority from the Constitution, cannot, in the same sweep, claim exemption from other fundamental rights which are curtailed in the manifestation of such practices. When the Supreme Court decides the larger issues, which revolve around fundamental rights vis a vis religious freedom, it should remember its role, which is to ensure egalitarianism and non-discrimination in the society.