Abstract
The following paper deals with the ‘essential religious practice test’ and its applicability in the case of Indian Young Lawyers’ Association v. State of Kerala. The paper firstly begins with the inception of the ‘essential religious practice test’ in Indian Jurisprudence and how the basic test has undergone changes in the later cases relating to the religious practices. Various cases have also been discussed where the ‘essentiality test’ was applied by the courts which have been used to analyse the subjectivity of the said test and how it may have a positive or a negative impact on an entire religion. A few dissenting opinions of the judges in a few cases have been discussed so as to show that how the Judiciary too feels the need to bring a reformation in the ‘essentiality test’. Further, the judgment and opinion of all the Constitutional Bench in the Sabarimala has been discussed in a detailed manner only with reference to the opinion of the judges in the application of the ‘essential religious practice test’ in the said case. The opinions of the judges are used to come to a conclusion that how the judges may have varied opinions due to their discretion being used by them. The paper later discusses a few reformations that may be brought into the ‘essential religious practice test’ as well as an alternative test so as to avoid a lot of discretion of the judges in applying the test. The entire idea behind the paper is to discuss the shortcomings of the current test being used by the Judiciary to decide religious matters and how can these shortcomings be rectified to ensure a harmony between the Judiciary and the religion.
INCEPTION AND EVOLUTION OF ESSENTIAL RELIGIOUS PRACTICE TEST
In most of the religious cases that come before the courts in India, a common ground for the test of every religious practice is determined by the application of the essential religious practice test. The essential religion practice test had been developed by the Honourable Supreme Court of India in The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshminadra Tirtha Swamiar of Sri Srirur Math[1] in which it was laid that the sole authority of deciding the essentiality of any test is the people of the said religion itself, however the courts may have a say in it. Subsequently, a new proposition was added to the said case in Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan[2]. It was laid that at times the beliefs of the people of the same religion may themselves be in contradiction to each other with reference to the essentiality of a said practice and hence it was for the Court to decide the essentiality of a religious practice in such cases. The essentiality test states that every religious practice which comes into question before the court of law has to be tested for its essentiality. A particular religious practice is said to be an essential part of the religion in cases where the said practice forms the core of the religion. If a particular religious practice is not essential, such a practice is not protected by Article 25 of the Constitution of India. Such a religious practice if found to be in contravention to any of the fundamental rights may be declared to be unconstitutional.
The essentiality of a practice is to be decided on the basis of the tenets and the doctrines of a particular religion. Since, the tenets and the doctrines of any religion are generally not well settled, the essential religious practice test has given a free space for the judges to use their discretion to determine the essentiality of any religious practice.
Since, the inception of the ‘essential religious practice test’, it is being heavily used by the courts of law to determine and adjudge religious matters. In the case of Durgah Committee Ajmer v. Syed Hussain Ali and Ors.[3], the Court held that a few times mere superstitions are followed by a particular religion for a long period of time which then come to called a religious practice. Thus, the Court further developed the idea of the essential religious practice test and rather than discussing and deciding over the essentiality of a particular practice, it provided the judiciary with more discretionary power to call a religious practice to be a superstition in its entirety. It is the essential religion practice test which has been used excessively by the Supreme Court of India in the recent Triple Talaq case[4] and the Sabrimala Temple case.[5]
In Mohammad Harif Qureshi v. State of Bihar[6], the court had to decide whether the prohibition of cow slaughter would disallow the followers of the religion of Mohammedean, that is, the Koran from practicing a ritual of their religion on the day of Bakri-id, the Court held that it was not an integral part of their religion as per their holy sculptures and hence it was not protected by Article 25 of the Constitution of India.
In Seshammal v. State of Tamil Nadu[7], the Court held that the appointment of priests is not an essential practice of any religion and the court has the right to interfere in matters relating to the appointments, emoluments and other benefits of the priests. In continuance of the same, appointment of a non-Brahmin as a priest was upheld.[8]
In the case of Shastri Yagnapurushdasji Vs. Muldas[9], the Supreme Court declined the plea of an entire community to be called as a separate religious denomination following the teachings of Swaminarayan holding that the entire Satsangi group was founded on superstition and complete ignorance of the true teachings of Hinduism. Further, on the basis of the teachings and tenets of Swaminarayan, the Satsangi group was indeed called to be a part of the Hindu denomination rather than having one distinct identity of a denomination. Further, in the case of SP Mittal Vs. Union of India[10], the Court held entire community following the teachings of Aurobindo to not be a religious denomination. The ratio was that the teachings of Aurobindo was just a philosophy of life and a separate religious denomination cannot be formed by following a mere philosophy that teaches one the art of living a peaceful life.
In Acharya JagdishwaranandAvadhuta v. Commissioner of Police[11], the court after a rigorous practice of reviewing the religious texts and revisiting various religious practices of the Amanda Margis, came to the conclusion that the tandava dance was not an essential part of their religion. The verdict was upheld in the case of Commissioner of Police v. Acharya JagdishwaranandAvadhuta[12]
Indeed, something to be noted is that the Court is a body of well learned men of law and not a body of theologians who can themselves adjudge whether a particular practice is essential for a religion or not merely on a few submissions made by the counsels. Through the essential religious practice test, the judiciary has at times been forced to decide cases against the general consensus of the religions themselves as the courts tend to take a more secular view, at times, and go against the strong religious beliefs of the followers of a particular religion. The issue is not the judiciary trying to regulate the religious practices to ensure the safety of the fundamental rights of the citizens, the issue is the essential religious practice test which gives the judges a lot of discretion to decide the cases that involve any religious matter or a practice. In the aforementioned judgment the dissent of Justice AR Lakshmanan indeed highlights the lack of consistency between the opinion and the interpretation of the judges when they apply the ‘essential religious practice test’ in a particular case. His dissent reads thus, “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”[13]. Justice AR Lakshmanan dissented with the view of the majority that a practice can be essential to a religion only when it is being practiced by a religion for a considerable period of time. Indeed, on careful consideration of Justice AR Lakshmanan’s dissent, one can again understand that how discretionary powers are available with the judges while dealing with the ‘essential religion practice test’. On one hand, a judge may be of an opinion that a practice to be essential for any religion it must be practiced for a long period of time while another judge may feel that such a condition is not required. Again, the idea of the term ‘a considerable amount of time’ is vague and may have different considerations for each individual judge, further leading to unstable interpretations and judgments in a particular matter.
Justice J.P. Banarjee made a remarkable observation in the case of Acharya JagdishwaranandAvadhuta v. Commissioner of Police[14], while it was being judged in the Honourable High Court of Calcutta. His observation read thus, “If courts started enquiring and deciding the rationality of a particular religious practice, then there might be confusion and the religious practice would become what the Courts wished the religious practice to be.” The observations made by Justice J.P. Banarjee are noteworthy because he himself believes that all the judges of all the courts are not well equipped with the ideas of all the religions in a manner that they can determine what is essential and what is not essential for a religion. Indeed, if the authority rests solely with the judiciary to decide the religious practices, the law would start interfering with the religions in an unnecessary manner, at times, which would indeed go against the fundamental rights of the people to propagate and practice their own religious practices which are essential to their religion as per their beliefs and traditions.
Article 25 of the Constitution of India states that, “Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.”[15]The essential religious practice in a way goes against the aforesaid Article as it gives a lot of discretion to judges to decide whether a particular test should be held to be essential for a religion or not. Article 25 clearly states that every person has a right to practice and propagate his religion provided that it is not against public order, morality and health. However, through the essentiality test, the judges may merely test a practice for its essentiality rather than looking at the validity of a religious practice from the point of view of the Constitution. Further, the test laid before the judges is to determine the essentiality of a test on the basis of the tenets and the doctrines of a particular religion. Since the basis on which the test of these practices is based is not minutely or perfectly defined, it itself becomes an unstable rod to measure the essentiality of a particular religious practice.
CRITICAL ANALYSIS OF THE SABARIMALA JUDGEMENT
Chief Justice Dipak Misra. (for himself andJustice A.M. Khanwilkar.)
The learned Chief Justice held that the practice of excluding the Hindu women to enter the temple was not an essential practice and hence the same was not protected under Article 25(1) of the Indian Constitution. The learned Chief Justice adopted a view generally accepted in common parlance and held that exclusion of women of any age group could not be regarded as an essential practice because it was in sheer contradiction to the essential part of the Hindu religion which allowed Hindu women to enter into temples to offer prayers. Further he held that since there was no evidence to support the claim of the respondents that the practice of excluding women was an essential practice, the court couldn’t accord to consider it as an essential religious practice. Every religious practice’s essentiality depends upon the doctrine and the tents of a particular religion.[16] Since the Honourable Chief Justice was not satisfied with the submissions of the respondents on the essentiality of the religious practice of excluding women the learned Chief Justice ruled in the favour of the petitioners.
The learned Chief Justice held that such a practice of excluding women was not an essential practice because the Hindu religion could not be fundamentally altered because of it. Further the learned Chief Justice placed reliance on Commissioner of Police v. Acharya JagadishwaranandaAvadhuta[17] where the court held thatthe practice which changes with the efflux of time cannot be regarded as a core upon which religion is formed.
In the aforementioned judgement, Justice A R Laxman had, in his dissent, held that just because a practice was introduced recently cannot make it unessential to the religion. Hence two contradictory opinions of two different judges have emerged. In such a scenario, it is not a well settled law but the discretion of judges which categorise a particular religious practice as essential. One needs to remember that judges are men well learned in law. They cannot be expected to be aware of each and every aspect of a particular religion. Therefore, complete discretion of judges in religious matters is not desirable. Chief Justice Misra has certainly ignored the dissent of Justice Laxman in the Avadhuta[18] case because his opinion is in absolute contradiction to the one stated by Justice Laxman.
Justice R.F. Nariman.
Justice Nariman has addressed the issue of essential religious practices in his judgement but has not decided whether the practice of excluding women is an essential religious practice or not. He held that what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. He referred to Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan[19] where it was held that whether a practice is an essential religious practice or not should always be decided by the court of law. He also relied on Sri VenkataramanaDevaru v. State of Mysore[20] where it was held by the Honourable Supreme Court that when denominational rights were such that to give effect to them would substantially reduce the right conferred by Article 25(2)(b) then ideally Article 25(2) prevails over Article 26. “If it is mixed up with secular activities the dominant nature of the activity test is to be applied. The Court should take a common- sense view and be actuated by considerations of practical necessity.”Justice Nariman has thus concurred with the past judgements on essential religious practices but has held the practice of excluding women as unconstitutional.
Though he has not explicitly declared the particular practice is question to be non-essential to the religion, by positively responding to the idea of allowing women to enter the temple proves that he believed to be not an essential practice, implicitly. Justice Nariman in his judgment has clearly mentioned that the idea of essentiality of a practice depends upon the practices of the religion. The major contradiction comes into existence when most of the people of the religion form the idea of not allowing women to enter into the Sabrimala temple as it is prescribed to them by their religion. A prescription of a religion practiced for a long period of time indeed forms a doctrine for a religion. This doctrine may or may not be accepted by a judge as per his discretion and idea of the particular religion like Justice Nariman and other majority judges declared such a doctrine to be non-existent in the eyes of law.
Justice D.Y. Chandrachud.
Justice Chandrachud has, in addition to applying the religious practice test has also invoked the doctrine of constitutional legitimacy which emphasizes on preserving the basic constitutional values associated with the dignity of an individual. He referred, in support of his argument, to Sri VenkataramanaDevaru v. State of Mysore[21] where the Honourable Supreme Court held that “Where the protection of denominational rights would substantially reduce the right conferred by Article 25(2)(b), the latter would prevail against the former.” Justice Chandrachud’sview seems to be complete and pragmatic because in a way it places the constitutional morality and constitutional ethos at the foremost position.
In his judgement he has opined that the court must not grant protection to a claim derogating the dignity of women. In the ethos of the Constitution, it is inconceivable that age could found a rational basis to condition the right to worship. He further held that the constitutional values of dignity, equality, liberty stand above anything else which brooks no exceptions even when confronted with a claim of religious belief. He also asserted that the practice of excluding women was derogatory to an equal citizenship. Further, to suggest that women cannot keep the Vratham is to stigmatize them and stereotype them as being weak and lesser human beings.
The aforementioned conclusions make it clear that Justice Chandrachud considers equality at the heart of the constitutional values and any deviation from the principle of equality cannot be allowed even if it interferes with the rights of a particular group of people. Justice Chandrachud has went beyond the traditional meaning of Article 25 & 26 and has tried resolving the predicament of essential religious practice test which has often raised the attention of Indian courts and jurists. By extending the constitutional principles of equality and dignity, which he believes are the priorities on which the edifice of the constitution stands, to the present case he has, in a way, held that to uphold the values of the Constitution i.e. dignity, liberty and equality is the primary objective of the Supreme Court. So when a group’s religious freedom conflicts with the right to equality of an individual, the latter would prevail.
With regards to the essentiality of the religious practice of excluding women in Sabarimala Temple he referred to precedents like The Commissioner, Hindu Religious Endowments, Madras vs. Sri LakshmindraThirthaSwamiar of Sri Shirur Mutt[22], Durgah Committee, Ajmer v. Syed Hussain Ali[23]etc. Laying emphasis on these precedents he explained the evolution of the doctrine of the essential religious practice test in India. He further held that “A practice claimed to be essential must be such that the nature of the religion would be altered in the absence of that practice. If there is a fundamental change in the character of the religion, only then such a practice be claimed to be an ‘essential’ part of the religion”. Since the respondents failed in proving the practice of excluding women as an essential practice of their religion, Justice Chandrachud ruled in favour of the appellant allowing women to enter the shrine.
Justice Chandrachud has affirmed the role of courts in determining the essentiality of a religious practice as held in the Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan[24]. The opinion of Justice Chandrachud tries settling the decade old disputed test used in determining the essentiality of a religious practice. Justice Chandrachud is very clear in his opinion that if a religious practice is against the constitutional values of equality, liberty and dignity then such a religious practice cannot be said to be constitutional. Justice Chandrachud has included a new dimension to address the existing dilemma of the conflict between fundamental rights. The opinion of Justice Chandrachud settles the law relating to the religious practices. If the religious practice is against the constitutional morality then it is supposed to be struck down by way of judicial intervention. Impliedly, Justice Chandrachud has placed the right to equality above the right to religion and has provided sound reasoning for the same.
The Dissent of Justice Indu Malhotra.
Justice Malhotra has opined that it is not for the courts to determine which of the religious practices are to be struck down except if they are pernicious, oppressive or a social evil like Sati. In her view the issue of what constitutes an essential religious practice is for the religious community to decide. Further discussing the conflict of Article 14 with Article 25 & 26, Justice Malhotra has held that religious customs and practises cannot be solely tested on the touchstone of Article 14 and the principles of rationality embedded therein. Justice Malhotra has propounded that the claim of petitioners cannot be accepted because the right to gender equality is protected by permitting women of all ages to offer worship in all other Lord Ayyappa temples. Further she held that “Judicial review of religious practices ought not to be undertaken, as the Court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practise one’s religion according to one’s faith and beliefs. It would amount to rationalising religion, faith and beliefs, which is outside the ken of the courts.”[25]
Justice Malhotra has disaccorded with Justice Chandrachud’s view in placing Constitutional Morality at the supreme position. Justice Malhotra has opined that “Constitutional morality in a secular polity would comprehend the freedom of every individual, group, sect, or denomination to practise their religion in accordance with their beliefs, and practises.”[26] She has emphasized that it is the court’s duty to harmonise the rights of all persons, religious denominations to practise their religion as per their beliefs. Further Justice Malhotra rejected the claim of the petitioners that the practice of excluding women tantamounted to untouchability on the groundthat Article 17 of the Indian Constitution only referred to the practice of untouchability against Harijans or people from depressed classes and not women.
With regards to the essential religious practice test, Justice Malhotra has held that since the practice has been followed since time immemorial (centuries old) it has become central to the worshippers of Lord Ayyappa and hence is an essential religious practice. After deciding that the worshippers of Lord Ayyappa constituted a separate religious denomination, Justice Malhotra further held that interference with the mode of worship of this religious denomination would affect the character of temple and the beliefs of the worshippers. Justice Malhotra relied on S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthapuram[27], where testimony of three witnesses were considered by the Honourable Kerala High Court to establish that the practice of excluding women from the Sabarimala shrine was centuries old.
Justice Malhotra in her dissent stated, “Equal treatment under Article 25 is conditioned by the essential beliefs and practices of any religion. Equality in matters of religion must be viewed in the context of the worshippers of the same faith.”[28] Thesignificance of this statement lies in its basis which gives the religious practices its ownimportance. Justice Malhotra has indeed tried to set a norm which states that every practiceshould be tested in consonance with the faith and belief of the worshippers of that particularreligion rather than a few judges deciding on their own discretion the essentiality of aparticular practice.
THE FUTURE OF ESSENTIAL RELIGIOUS PRACTICE TEST AND ALTERNATIVES
As it is clearly evident from the Sabarimala judgement, there are different and contrasting opinions of the judges with respect to the determination of essentiality of a religious practice. If the situation persists, every case would be decided by the Courts on its own discretion rather than a settled principle of law. Under such circumstances it is imperative for the Indian judiciary to devise a uniform principle which can serve as a future roadmap for determining the essentiality of a particular religious practice.
The Sabarimala judgement had four different opinions by five eminent judges of Indian judiciary. What remains to be ascertained is whose judgement can have a uniform application across all cases to come in future. Chief Justice Misra and Justice Nariman’s judgement has indeed decided upon the essentiality of the practice of excluding women in the Sabarimala case but they have not devised any new principle which can be a probable solution to the existing conflict of the essentiality test and the use of discretion by the judges. The reason for the same is the judgements have failed to provide a legal principle on which essentiality of a religious practice can be decided. The Chief Justice Misra and Justice Nariman have affirmed the law laid down in the precedents and therefore have failed to provide a solution to tackle the discretion available to the judges in matters concerning the essentiality of religious practices.
It is important to note that Justice Chandrachud’s ruling provides an effective and a uniform solution to the predicament of the essentiality of religious practices existing in Indian Legal System. Justice Chandrachud during the proceedings of the said matter mentioned very aptly that the ‘essential religious practice test’ is a major limitation with the Indian jurisprudence. He himself went on to provide an alternative to the present essentiality test which is being used in a very arbitrary manner by the Indian courts. He said that whether a particular religious practice should be allowed or not should depend upon the constitutionality of the practice. If a religious practice is in consonance with the principles of the Constitution and majorly with the sanctioned Fundamental Rights, then such a religious practice should be allowed by the courts. However, if any practice is contradictory to the provisions of the Constitution, the same must be declared to be unconstitutional by the courts. As per his opinion, there should be no need for the courts to look at the essentiality of a practice with reference to the religion. All practices are to be checked for the principles so established by the Constitution of India. If the test proposed by Justice D.Y. Chandrachud is followed then the major drawback of the ‘essential religious practice test’, that is, the discretion of the judges would be certainly solved. This is because the Constitutional principles are laid down and well defined thus giving a lesser scope to use individual interpretations too often. The said test establishes the Constitution to be the grundnorm of deciding the fate of every religious practice rather than the individual opinions of the judges.
Justice Malhotra’s judgement is also equally significant in determining the future of essentiality of religious practices in the Indian Judiciary because Justice Malhotra has been successful in providing a concrete solution to the existing dilemma. Justice Malhotra has very clearly held that determination of essentiality of a religious practice should completely lie with the religion itself. If the courts were to interfere then it would interfere with the right to freedom of religion of such religious group. But there is a drawback in her reasoning. If her opinion was to be followed then the issue of conflict of rights remains unanswered. As in present case, there might be a situation where religious rights of one community interferes with the religious rights of another. Under such cases if the courts leave the matter upon the parties then it would lead to a lot of uncertainty. If this particular aspect gets resolved then Justice Malhotra’s opinion can be a very good counter to the opinion of Justice Chandrachud. In such a case it would be upon the Supreme Court to decide whose opinion would supersede, in light of supervening public interest.
Further, if no opinion has to be accepted then in such a case, an alternative or reformation to the ‘essentiality test’ can be a formulation of a common basis on which every religious practice can be tested instead of the current practice of allowing the judges to exercise their own discretion in such cases. It is suggested that the judiciary, instead of deciding the fate of each and every case on its discretion, can base their ideas of using the test on points such as whether or not a particular religious practice has the following characteristics: (a) is in consonance with the statute, (b) reasonability of allowing the practice, (c) peaceable enjoyment, (d) certain and definite, (e)confirms to morality and public order etc. By using such a test, the judiciary will continue to exercise its power to regulate the religious practices and will also be enabled to effectively construe thediscretionary power available to the judges in the present ‘essentiality test’.
CONCLUSION
As it is rightly said by George Bernard Shaw that “Never forget that if you leave your law to judges and your religion to bishops, you will presently find yourself without either law or religion.” In India, it is indeed not possible to separate the judiciary from the religion. The people of India have to accept some amount of judicial interference in their religion and religious practices. With regards to the test for the essentiality of religious practices, it needs to be ascertained whether constitutional morality supersedes the right to freedom or not. If the answer to this fundamental question goes in favour of constitutional morality then Justice Chandrachud’s opinion in the Sabarimala case should undisputedly persist in the future. But if fundamental right to religion is given a preference over constitutional morals, which seems unlikely, then the Supreme Court can decide on the essentiality of a religious practice considering the aforementioned characteristics of a particular religious practice.
[1] The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshminadra Tirtha Swamiar of Sri Srirur Math (1954) AIR 282.
[2]Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, 1964 1 SCR 561.
[3]Durgah Committee Ajmer v. Syed Hussain Ali and Ors., 1961 AIR 1402.
[4]ShayaraBanov. Union of India, (2017) 1 SCC 9.
[5] Indian Young Lawyers Association v. State of Kerala, 2018 SCC OnLine SC 1690.
[6] Mohammad Hanif Qureshi v. State of Bihar AIR 1958 SC 731.
[7]Seshammal v. State of Tamil Nadu, AIR 1972 SC 1586.
[8] A. S. Narayana Deekshitulu v. State of A. P., AIR 1996 SC 1765.
[9] Shastri Yagnapurushdasjiv. Muldas, 1966 AIR 1119.
[10] SP Mittal v. Union of India, 1 1983 SCR (1) 729.
[11] Acharya JagdishwaranandAvadhuta v. Commissioner of Police, (1983) 4 SCC 522.
[12] Commissioner of Police v. Acharya JagdishwaranandAvadhuta, (2004) 12 SCC 770.
[13] Ibid.
[14] Acharya JagdishwaranandAvadhuta v. Commissioner of Police, AIR 1990 Cal 336.
[15]INDIA CONST. art. 25.
[16] The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshminadra Tirtha Swamiar of Sri Srirur Math (1954) AIR 282.
[17] Commissioner of Police v. Acharya JagadishwaranandaAvadhuta, (1983) 4 SCC 522.
[18]Ibid.
[19]Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, (1964) 1 SCR 561.
[20] Sri VenkataramanaDevaru v. State of Mysore, 1958 SCR 895.
[21]Ibid.
[22] The Commissioner, Hindu Religious Endowments, Madras vs. Sri LakshmindraThirthaSwamiar of Sri Shirur Mutt, 1954 SCR 1005.
[23]Durgah Committee, Ajmer v. Syed Hussain Ali, (1962) 1 SCR 383.
[24]Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, (1964) 1 SCR 561.
[25] Indian Young Lawyers Association v. The State of Kerala, 2018 SCC OnLine SC 1690.
[26]Ibid.
[27] S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthapuram, AIR 1993 Ker 42.
[28] Indian Young Lawyers Association v. The State of Kerala, 2018 SCC OnLine SC 1690.
