The Hon’ble Supreme Court of India, this Friday passed a verdict which has been hailed as a judgment in the right direction contributing significantly to the jurisprudence related to equality and dignity in India. The Court by a 4:1 majority struck down the prohibition on women from entering the Sabarimala temple. The judgment running over 400 pages provides for an interesting read on the interplay of Freedom of Religion vis-à-vis other Part III rights enshrined within the Constitution.
While the judgment certainly has key takeaways, it suffers from certain constitutional infirmities as well. In this post, I shall address both these fronts. I shall begin by discussing the two most important takeaways from the judgment and subsequently shall critically analyze where the Court went wrong.
The Provisions Involved:
Before I attempt to discuss the takeaways from the judgment, a discussion on the provisions involved would be pertinent. The entire dispute rested on the interplay between Article 25 & 26 and their interpretation as against other Fundamental Rights under Part III.
Article 25 of the Constitution guarantees to every citizen the freedom of conscience and the right to profess, practice and propagate religion. In other words, one has a right to his faith and also expressing that faith and propagating it. It is to be noted that the said right is not absolute and can be curtailed by the government under two broad heads : (clause 1 restriction and clause 2 restriction).
Clause 1 restriction:
The right under the Article can be restricted on grounds of public order, morality and health and other provisions of Part III.* Other provisions of Part III would include articles 14, 15, 17, 19, 21, 23. An appropriate example would be the practice of Santhara, wherein Jains starve themselves to death, as it is believed that it helps them achieve moksha ( i.e. salvation) [Nikhil Soni v. Union of India]. This was struck down by the Court, as it violated the Right to Life under Article 21.
Clause 2 restriction:
Clause 2 allows for two restrictions. First, the ground of regulating any economic, financial, political or secular activities associated with the religion [Article 25(2)(a)] . Therefore, an activity that is completely secular, like appointment of priests, management of funds, administrative boards etc., can be regulated by the state. One should note that the test for identifying whether the ground is attracted is the judicially developed doctrine of ‘essential practice’. The doctrine defines those activities as essential, in absence of which the religion is fundamentally changed [Misra J.,¶ 12]. It is these essential activities, which are protected from restriction of the first limb of clause 2.
The second ground for restriction is of providing social welfare and throwing open of Hindu religious institution of public character of all classes of Hindus [Section 25(2)(b)]. The judicial opinion of whether the essential practice doctrine applies to this sub-clause is not settled.
While Article 25 deals with one’s faith and its practice, Article 26 covers the right of religious denominations and sects, to manage their religious affairs. This right is also subject to the Clause 1 restrictions of Article 25 i.e. on grounds of public order, morality and health. However, the provision is silent on restrictions on grounds of Part III rights. The essential practice doctrine finds an application here as well, to ascertain the degree of state intervention.
Now that we have discussed the basic provisions involved in the judgment, I shall analyze the judgment. In my opinion, the judgment is noteworthy for its discussion on two core concepts i.e. the concept of religious denomination and the extension of the principle of untouchability.
1. Religious Denominations:
As discussed previously, Article 26 of the Constitution allows religious denominations certain rights. What constitutes religious denominations is answered by the judgment at great length especially in the opinions of Misra J., and Chandrachud J. The principles that can be culled out are:
- There must be a collection of individuals who have a system of beliefs or doctrine, which they regard conducive to their spiritual well-being
- The methodology of practicing the belief should be new and not a meagre modification of any religion
- There should be a common organization [Chandrachud J., ¶ 60]
- Designation should be distinctive [Chandrachud J., ¶ 60]
- Religion binds the individuals together and not caste or social status [ Chandrachud J.,¶ 63]
- Joining/following this group, leads to losing the previous religion [Misra J., ¶ 91]*
Therefore, for claiming the protection of Article 26, the above need to be mandatorily satisfied. A mere modification of practices of a religion, would not amount to religious denominations.
The discussion on denominations became crucial in the judgment because a major contention by the temple authorities was that they amount to a religious denomination and therefore, should be granted the protection of Article 26. The Court applying the above ruled in the negative.
2. The changing notion of Untouchability:
The Constitution of India prohibits anybody from indulging in the practice of untouchability. This protection is accorded the status of a fundamental right [Article 17]. However, interestingly what constitutes untouchability has not been defined in the Constitution.
If one is to peruse the literature on the practice of untouchability in India, it stems from the caste system wherein traditionally the people belonging to the lower castes were considered untouchables and discriminated accordingly. Chandrachud J., goes beyond this traditional view by delving deeply into the rationale behind untouchability i.e. the belief that an individual/group of people are impure and therefore no contact with the same should be made [Chandrachud J., ¶ 57]. Drawing an analogy, the Hon’ble Judge remarks, similar is the treatment meted out to women in the temple, as they are not allowed entry due to the belief that they are menstruating and are impure. He uses this line of reasoning to strike down the practice as violative of Article 17. Such a purposive interpretation is not only commendable but infuses fresh air to the equality jurisprudence.
Where did the Court go wrong?
It would be incorrect to presume that the judgment does not suffer from infirmities. Instead of analyzing the opinion of every Judge, I shall instead discuss two issues which were common in all opinions.
a. The path of essential practice:
In the beginning of the post, I have discussed that rights under Article 25 are subject to Part III of the Constitution i.e. fundamental rights. Although an express extension of the same has not been made to Article 26, the extension is logical on two counts. First, given that India is a constitutional democracy, no right is absolute and is subject to reasonable restrictions. Second, post the decision of Maneka Gandhi v. Union of India, no provision in Part III has been dealt in isolation from the others. A joint reading approach has been implemented, whenever a question of fundamental rights is to be determined. Therefore, it is settled that every religious practice has to be tested on the touchstone of Part III rights. The Court has insufficiently applied this test and has instead completely applied the essential practice test. This in my opinion is incorrect.
It should be noted that the test of essential practice is an additional test applicable only when state intervention under Article 25(2) and Article 26 is attracted. Even if a practice is termed essential, it would not by itself save it from being tested on Part III. For example, there is a religious group founded on the notion of purity which believes that only Brahmins, Kshatriyas should enter their temples. Allowing Shudras in the temple would impure the deity and their religion. This practice finds a place both in their texts and has been followed since time immemorial. Although this practice would be an essential practice due to its mention in holy texts and it being followed for ages, it would still violate Article 17 as it promotes untouchability, thereby being struck down. However, in the instant case, the Court instead of adopting the mandatory test of Part III, undertakes the scrutiny of whether the practice of prohibiting women is essential [Only the opinion of Chandrachud J., briefly touches upon a Part III scrutiny, whereas other Hon’ble Judges focus on the essential practices]. This seems to given an assumption that the Court believes if a practice is essential, it becomes inviolable, which is incorrect.
There exists another problem with this approach of the Court. Such a stance puts a religious practice through a two-step scrutiny. First, the scrutiny of essential practice and then the scrutiny under Part III. Such an intense assessment, fundamentally affects the tenets of the religion, which is contrary to the libertarian stance the Court takes by terming one’s right to faith as fundamental to his existence, as it itself curtails exercise of that faith, by interfering in it severely.
The presence of two tests for curtailing the rights of Article 25 and 26, allows for more state intervention and reduces the scope of religious freedom. For example, let us assume the government issues a notice for acquisition of a mosque. The managing board of the mosque would contend that it violates their rights under Article 25 and 26. As per the instant decision, the Court here would apply the essential practice test and reach a conclusion that it is not essential to the religion, thereby allowing the state to acquire the mosque.* Here the existence of a mosque is not tangibly affecting any rights but it is still being acquired due to the essential practice doctrine.
To address this extreme state intervention, I propose the abolishment of the essential practice doctrine and only retaining the Part III test as a criterion which would lead to a religious practice being struck down if it violates fundamental rights of any person. If this path is adopted, there would be lesser practices that would be struck down and religious freedom will increase.
Figure A above showcases the current grounds of restrictions under the Articles. As you would see, the bigger circle is the freedom of religion, and the two smaller circles are the area where that freedom is not available. Due to this, the space for religious freedom reduces.
On the contrary, Figure B has a larger area for religious freedom as there is only one small circle restricting the same. Therefore, allowing for more religious freedom than Figure A.
b. Restricting the possibility of establishing new religions:
India guarantees to every citizen the freedom of professing and practicing any religion. Interestingly, what constitutes a religion is not defined in the Constitution. India has inter alia the following religions i.e. Hinduism, Islam, Christianity, Buddhism, Jainism etc. However, I had often wondered whether our Constitution allows creation of a new religion.
The Constitution of India provides for secularism as a basic inalienable feature. The term has been defined to mean that the state has no religion of its own [TMA Pai v. State of Karnataka at ¶ 331]. Furthermore, Article 25 guarantees the citizens freedom of conscience and practicing and propagating any religion. The interpretation of the Courts of the Article 25 lends support to the proposition:
“The Constitution has left every person free in the matter of his relation to his Creator, if he believes in one. It is, thus, clear that a person is left completely free to worship God according to the dictates of his conscience, and that his right to worship as he pleased is unfettered so long as it does not come into conflict with any restraints, as aforesaid, imposed by the State in the interest of public order, etc. A person is not liable to answer for the verity of his religious views, and he cannot be questioned as to his religious beliefs, by the State or by any other person.”
Therefore, given our Constitution’s commitment to secularism and freedom of conscience and religion, it can be argued that one has the right to create a new religion and follow it. While creation may seem plausible, I believe that such a new religion would face two hurdles i.e. difficulty of separate identity and inapplicability of Article 25 protection.
b.1. Inapplicability of Article 25:
Let us assume that a person ‘A’ establishes a new religion with his own tenets and has several followers believing in the same ideology. Given our constitutional framework, the next reasonable step would be to think that ‘A’ would also get the protection of religious freedom under Article 25. However, that is not the case.
As discussed, the protection under Article 25 is allowed to every citizen but this protection can be restricted on several grounds. Since, clause 1 restriction applies to everybody unanimously, let’s skip that and try testing the clause 2 restriction, which is tested by the essential practice test. The Courts in the past have reached this conclusion by looking at the religious scriptures and the duration for which that practice has been followed. The longer the duration, the higher the possibility of it being categorised as an essential practice.
Sadly, a new religion would never satisfy the test of duration of practice or even having a religious scripture, resulting in practically no protection under the Article, allowing state intervention, as and when it deems fit.
b.2. The Ghost of Religious Denominations:
Article 26 also stands as a major hurdle in the path of establishing a new religion in India. Article 26(2)(b) grants freedom to manage the affairs of a religious denomination does not define what a religious denomination means. Courts have interpreted it to mean, ‘a religious sect or body having a common faith and organisation and designated by a distinctive name’ [The usage of the term ‘religious sect’ in my opinion is problematic, given that it creates being part of an existing religion, a prerequisite]. An additional requirement is that the faith and practices of a denomination should not be a modification of any existing religion. This in my opinion creates a problem.
India currently has five major religions i.e. Hinduism, Christianity, Islam, Buddhism, Jainism. All these religions have certain basic tenets. By not recognizing modifications of a religion as a separate religion, a new religion gets compartmentalised into the existing religions. Now every new religion would be tested against the existing practices and wherever the practices are similar, the religion shall not be granted the protection. For example, if a new religion has idol worship as a tenet, it shall be tested against Hinduism and Christianity as both allow idol worship. The result shall be that it is considered a modification of either of the two and protection of the Article shall be denied.
As I have explored various discussions surrounding Article 25 & 26 in light of the Sabarimala issue, I am of the opinion that the essential practice test is currently redundant. It serves no purpose and in fact promotes intervention which ideally a secular and a pluralistic nation must not encourage. While I agree, a minimum intervention is necessary for protection of rights, the doctrine exceeds that threshold, striking sharp at freedom of religious practices.
I agree with the result of the judgment; however I disagree with the path taken by the Court. By extensively relying on the essential practice doctrine and the test of religious denominations, the Court not only restricts the practices of existing religions, it also curtails creation of new religions.
[The opinions expressed in the article are solely of the author. In this current post, the author has for the sake of clarity incorporated examples for which certain terms delineating various castes have been mentioned. By doing so, the author does not wish to offend any individuals belonging to any caste.]
* The term ‘public order’ has been explained in the previous post. Health would allow curtailing of practices that are detrimental to one’s physical well-being (practice of starving unto death). Morality here would mean constitutional morality i.e. adhering to the constitutional mandate and norms i.e. equality, justice, dignity, freedom etc.
* The above principles have been culled out after reading the judgments cited by the Court.
* Although Sinha J., rendered a dissenting opinion in the judgment, the above views were endorsed by the majority.