Indian Constitutional Courts and Secularism — I

by Irfan Engineer

This is a two-part article. This is the first part. The second and concluding part will be carried in the following week’s issue of Mainstream dated December 8, 2018.

Traditions and customs are being used to redefine and redraw the contours of secularism in India in the last couple of years. The constitutional parents, with near unanimity, if not unanimously, embraced the principle of secularism and that principle was followed in the initial years of the post-independence period to gradually check the power of religious institutions and religious leaders, loosen their control over communities, ushering in gradual reforms and marching towards equal citizenship. This included opening up Hindu religious institutions of a public character to all classes and sections of Hindus; regulating the secular activities associated with religious practices, including the Tirupati Tirumala Devasthan, Travancore Cochin Devaswom Board, management of Ajmer Sharif Dargah under The Dargah Khwaja Saheb Act, 1955 etc., particularly the donations received by these institutions; and reforming family laws through a series of legislations. These measures were resented and resisted by the religious leaderships of the respective communities.

The secular state was ushering in gradual reforms, albeit at a painstakingly slow pace in the case of minorities. The Dalit movement for social justice and feminist movement were the main engines pushing the state to usher in gradual reforms. The secular mandate and social reform impulse of the Constitution created space for social reforms and the secular convictions of the executive yielded to such demands.

Secularism now is being invested with new meanings in the garb of freedom of religion to assert selective illiberal traditions and customs in order to check the march towards equal citizenship and reassert the control of religious institutions and religious leaders. The French model of secularism as “laicite” wherein the state is intolerant of religious manifestation in public space would not work in a traditional society like India. Mobilisation for the freedom struggle was through religiously coloured appeals and discourses and had to contend with communal demands. The idea of secularism in India was associated with religious freedom, albeit with reasonable restrictions, equal space for all religions and harmonious living together with diversity of language, culture and religion.

However, what should freedom of religion mean? Is it freedom of the religious elite and institutions to determine the social and collective life in accordance with what they decide to be religious traditions and customs? Or is it freedom of individuals to profess and practice their religion in accordance with her/his conscience without facing exclusion and discrimination? And finally, who constitutes the community, or in constitutional terms, which group can claim to be of a religious ‘denomination or a section thereof’ and whether dissidence within the community is to be accommodated and to what extent?

Conflicting Claims to Secularism by Dissenting Individuals and Religious Institutions

The Constitution of India tries to strike a balance between freedom of the individual to practice her/his religion and space given to the elite of religious denominations (and sections thereof) to establish and manage their institutions. The conflict in some of the recent judgments is whether the individual’s right to profess and practice her/his religion is superior to that of the community’s right to maintain certain traditions and customs. The two recent examples are that of women’s entry into the Sabarimala temple between the age of 10 and 50 years and the practice of divorcing a Muslim wife by her husband by pronouncing or communicating, through whatever means, the word ‘talaaq’ thrice in a single sitting which is treated by a section of Muslim community as irreversible divorce (triple talaaq), while the majority judgment of the Supreme Court in both the cases seems to have taken a consistent stand tilting in favour of upholding the fundamental rights of individual citizens guaranteed in Part III of the Constitution over those of a religious denomination or a section thereof.

Secular Provisions in the Constitution

Article 25 of the Constitution gives the right to every individual in India to profess, practice and even propagate any religion of her/his choice, subject, of course, to the reasonable restriction of public order, morality and health, and subject to other provisions of the chapter on fundamental rights. However, the state can make laws to regulate or restrict any economic, financial or other secular activity associated with religion; the state can make laws providing for social welfare and reform or for throwing open Hindu religious institutions of a public character to all classes and sections of Hindus. Article 25 defines the right to freedom of religion from the perspective of an individual person, subject to the reasonable restrictions of public order, morality and health and to other fundamental rights. The Article further empowers the state to regulate financial and other secular activities that may be associated with religion such as administration and management of trust, employing staff, complying with state laws etc. The state can also make laws to ensure that Hindu religious institutions of public character are open to all classes and sections of Hindus.

While Article 25 is about the right of an individual to freedom of conscience, Article 26 defines rights of religious denominations or sections thereof as a collective, and those rights include the right to establish and maintain institutions for religious and charitable purposes and to manage its own affairs in matters of religion. The rights of the denominations and sections thereof are also subject to the reasonable restriction of public order, morality and health, the domain in which the state can make laws to restrict their rights. However, unlike Article 25, the rights of denominations and sections thereof are not subject to other fundamental rights guaranteed by the Constitution. The conflict in Sabarimala and the triple talaaq cases therefore can be seen within the prism of apparent conflict between the religious freedom to practice, profess and propagate religion granted under Article 25 and the religious freedom granted under Article 26 to religious denominations to establish and maintain institutions for religious worship and to manage its own affairs in matters of religion.

In the triple talaaq case, Shayara Bano and other Muslim women challenged the practice of triple talaaq as unconstitutional and illegal and pleaded that their fundamental right to equality under Articles 14 and 15 was being violated as Muslim men alone had the right to divorce their wives unilaterally and instantly without resorting to mediation or arbitration. The All India Muslim Personal Law Board, the orthodox voice within the community, pleaded that triple talaaq, though considered as a bad practice, once pronounced operated as divorce even when those dreaded words were pronounced under intoxication, anger or when a man was not in control of his senses. After pronunciation of those dreaded words, the marriage would be over and the man cannot inhabit with the divorced wife. They further pleaded that under Article 25, they (the Muslim community or denomi-nation) had a right to practice their religion and manage their religious affairs, which included operation of triple talaaq.

In the Sabarimala case, while the petitioners, the Indian Young Lawyer’s Association, and interveners supporting the petition once again pleaded that restriction on entry of women in the age-group of 10 to 50 years amounted to discrimination and therefore violation of their fundamental right to practice their religion, the respondents opposing the petition claimed that Sabarimala was a separate denominational temple of great antiquity dedicated to Lord Ayyappa, a Naisthik Brahmachari celibate deity. According to ancient traditions and customs, women in the age of 10 and 50 cannot complete their 41 days “Vruthum” for physiological reasons and therefore cannot enter the temple. These are the basic tenets of establishment of the temple. They claimed the right of the denomination to manage its own religious affairs.

We are citing these two examples but there are many other examples where dissenting individuals pleaded violation of their funda-mental right to practice their religion at the hands of the community and those managing the affairs of the community or a religious institution in turn claiming the the denomina-tional right to sustain traditions and customary practices and subject all members of the community to such practices merely because they are ancient, even if they cause legal injury to a section by treating them unequally and excluding them. Take it or leave it, they seem to say, we are not going to change. Some ancient customs can even be inhuman and oppressive like excluding Dalits from religious institutions and practices, witchcraft, deception of gullible people by practising ‘faith healing’ and magic, the custom of marrying young girls to temple idols and compelling them to prostitution, etc.

The executive and legislature intervened sparingly in the initial years after independence with the constitutional mandate under Article 25 to usher in reforms. That is how a series of temple entry legislations were passed and stiffly resisted and challenged in constitutional courts on the ground of right to manage religious affairs of the denominations. However, all such challenges failed. The States then brought in legislations to manage financial and secular activities associated with religious practice—regulating the financial management of donations at the Tirupati Balaji Temple and Ajmer Dargah. The recent legislative inter-ventions include The Maharashtra Prevention and Eradication of Human Sacrifice and other Inhuman, Evil and Aghori Practices and Black Magic Act, 2013 which was stiffly opposed by the Hindu supremacist organisations like the Sanatan Sanstha. The legislation was passed after the assassination of Dr Narendra Dabholkar who lobbied for years for such a legislation. In 2016, the BJP Government passed The Maharashtra Prohibition of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016 to protect the individuals from being subjected to oppression on account of their dissenting views by caste-based bodies or local village elite enthusiastic to uphold traditions and customs as well as religious institutions and denominations with the weapon of social boycott.

The constitutional courts, however, have by and large, with some exceptions, viewed the challenge by dissenting individuals (resisting oppressive traditions and customs that violate their fundamental rights) to the freedom of religion of denominations under Article 26 to manage their religious affairs and subject all members of the community to the norms they decide, in favour of the individuals’ right to practice their religion. In the Shayara Bano case, the practice of triple talaaq was invalidated. In cases of challenges to customs and rules that excluded the women from Haji Ali Dargah, Shani Shignapur temple and Sabarimala, these rules and customs were held to be discriminatory and violating the fundamental rights of those so excluded.

How has the constitutional judiciary reconciled these conflicting claims of funda-mental rights? We would examine this in the next Secular Perspective.

(To be concluded)

(Courtesy: Secular Perspective)

The author is the Director, Centre for the Study of Society and Secularism, Mumbai. He can be contacted at e-mail: irfamengi[at]gmail.com