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Mainstream, VOL LVI No 51 New Delhi December 8, 2018

Indian Constitutional Courts and Secularism—II

Sunday 9 December 2018

by Irfan Engineer

The first part of this two-part article appeared in last week’s Mainstream (December 1, 2018). This is the second and concluding part.

In the previous issue of Mainstream (December 1, 2018) we briefly outlined the tension between rights of denominations or any sections thereof under Article 26 of the Constitution to manage their own affairs in matters of religion, and to establish and maintain institutions for religious and charitable purpose on one hand and rights of all persons (individuals) under Article 25 to profess, practice and propagate their religion on the other: whether the right of dissenting individuals within any denomination to practice, profess and propagate their religion is superior, or that of the denomination or any section thereof to establish and maintain their religious institutions and manage their religious affairs. The denominational rights may require curbs on the freedom of individuals.

We also noted that the Indian state after independence ushered in legislations to bring in social reforms, albeit very gradually, including opening up temples of public character to all sections of Hindus, regulating secular and financial activities associated with religious practices, and reforms within family laws through legislative process. In this part, we would examine how the judiciary reconciled the conflicting claims to fundamental rights by individuals and denominations.

The Indian Constitution categorises freedom of religion in two parts—one granted to individuals to practice, profess and propagate, and the other granted to the denominations or sections thereof to establish and maintain institutions for religious and charitable purposes, and to manage their own affairs in matters of religion. Both freedoms are necessary to properly enjoy the right to religious freedom. However, the latter category of freedom requires some regulation of right to practice religion while accessing institutions established and maintained by religious denominations. Likewise, the denominations have been given certain rights to manage religious affairs which may require regulation of the right of an individual to practice her/his religion. Denominations claim right under Article 26 of the Constitution to impose certain traditions, customs, rituals, manner of worship, appearance and behaviour on individuals accessing the institutions established and maintained by them, thereby curbing the rights of individuals to practice their religion. By standardising and resisting any changes in the traditions, customs, rituals etc. denominations willy nilly create silos with the religio-traditional boundaries well guarded. The institutions run by the denominations do adopt and admit changes in rituals, customs and traditions, but the changes are controlled by the denominational leadership. For example, the e-aartis and acceptance of donations through modern money transfer methods etc. while the individual person claiming right to practice and profess religion seeks to negotiate these traditions, maintain fluidity, adopt to and is open to changes according to her requirement and rationale.

The judiciary followed the principle of harmonious interpretation to give maximum effect to rights under both the Articles. They have refrained from viewing fundamental rights in isolated silos and water-tight compartments. All freedoms are necessary for giving effect to constitutional provisions and they complement each other. In Rustom Cavasjee Cooper v. Union of India case, the Constitutional Bench of eleven judges held:

“[I]t is now settled doctrine that the fundamental rights contained in Part III are not, as it has been said, water-tight compartments... One freedom shades into and merges with another. Fairness as a guarantee against arbitrary state action influences the content of the procedure for the deprivation of life under Article... The freedoms which we possess and those which we exercise are not disjunctive parts, separate from each other. Individuals in society exercise not one but many of the freedoms. An individual exercises a multitude of freedoms as a composite part of the human personality. A single act embodies within it the exercise of many choices reflecting the assertion of manifold freedoms. From this perspective, it is but a short step to hold that all freedoms exist in harmony. Our freedoms are enveloped in the womb created by the Constitution for the survival of liberty.”

The principle of interpreting fundamental rights harmoniously to give effect to all rights requires that rights of the denominations to establish and maintain religious institutions and manage their own affairs in matters of religion under Article 26 cannot be treated as superior to the rights of individuals to practice and profess their religion under Article 25. Such an inter-pretation has to be rejected. In the Shayra Bano case where triple talaq was held to be invalid, the majority judgment was not persuaded by the plea of the All India Muslim Personal Law Board that right to freedom of religion meant that such form of divorce should be held as valid under the sharia law for all members of the community.

Essential Religious Practices

Article 25 (2)(b) of the Constitution permits the state to bring in laws providing for social welfare. The freedom of religion is subject to these powers of the state. Indian secularism therefore requires social welfare. Although The Maharashtra (Eradication of Black Magic, Evil and Aghori Practices) Act has not so far had to suffer the constitutional challenge, it would be protected under Article 25(2)(b). Similarly, religion-based family law reforms to achieve gender justice are also protected from the constitutional challenge under the same provision. The Abolition of Sati Act too is protected. How-ever, under the ruse of social welfare, the state cannot reform religion beyond recognition. The courts therefore evolved the principle of essential practices of religion. The essential part of a religion means the core beliefs upon which a religion is founded without which there is no religion.

The Supreme Court in the Shirur Mutt case held, for the first time, that what constituted an essential part of a religion should be ascertained with reference to the tenets and doctrines of that religion itself. It held:

“In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.”

Religious practices often accumulate superstitious beliefs that may be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion, their claim for protection as essential practices may necessitate careful scrutiny by courts.

In N. Adithayan v. Travancore Devaswom Board and others, the Supreme Court laid down parameters of what constitutes an essential practice of a religion in the following words:

“The legal position that the protection under Article 25 and 26 extend a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion and as to what really constitutes an essential part of religion or religious practice has to be decided by the Courts with reference to the doctrine of a particular religion or practices regarded as parts of religion...”

Denomination

The rights under Article 26 to establish religious institutions and to manage their own affairs in matters of religion accrue to denominations or sections thereof. However, the moot question is: who constitutes a denomination? The priests of Sabrimala also claimed to be a denomination and therefore claimed protection of their right to manage their religious affairs and maintain their religious institutions under Article 26.

The Supreme Court in S.P. Mittal’s case, as well as in Shirur Mutt’s case, defined “religious denomination” as under:

“The words ‘religious denomination’ in Article 26 of the Constitution must take their colour from the word ‘religion’ and if this be so, the expression ‘religious denomination’ must also satisfy three conditions: (1) It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, that is, a common faith; (2) common organisation, and (3) designation by a distinctive name.”

The Supreme Court, on the above criteria, did not accept the claims of Swaminarayan Sampraday, Anand Marg, Auroville and various other temples and sub-sects to be denominations. Therefore the religious leadership maintaining these religious institutions could not claim denominational rights to exclusively maintain them and resist necessary regulations by the state through legislative actions.

The Indian constitutional secularism is interventionist secularism requiring the state to play a role of neutral arbiter during conflicts between religious communities but also intervene and bring about gradual reforms for social welfare to ensure Constitutional objective of equal citizenship and inclusion of all sections of Hindus inside Hindu religious institutions of public character. In promoting reforms for social welfare, the state has the mandate to reform only economic, financial, political and other secular activities associated with religious practice. The state cannot reform or restrict practices which are essential and integral to the religion. The state will ensure religious freedom of individuals to practice, profess and propagate their religion, as much as religious freedom of denominations and sections thereof to establish and maintain their religious institutions and manage their own affairs in matter of religion.

It is this latter constitutional mandate requiring the Indian state to provide for gradual social reforms that are being resisted by the orthodox and fundamentalists. The BJP wants the state to don the mantle of reformist state as far as Muslims are concerned and the BJP-led government argued before the Supreme Court to invalidate triple talaaq as unconsti-tutional and is pushing a legislation to ban triple talaaq. However, as far as the Hindu community is concerned, the BJP wants to arrest any reforms. Recently the BJP President, Amit Shah, in one of his public speeches, said that courts should desist from giving verdicts that cannot be imple-mented. By implication, the courts should first embark on the inquiry as to what could be implemented and then give its verdict. Court verdicts are on the basis of the Constitution of India, particularly the fundamental rights of the citizens, rule of law, justice and fairness. Do we want such an India where courts do not follow these noble principles and give judgments on communal basis and on the basis of faith alone? Whose faith then will be upheld when there are conflicts about what faith is? That of the mighty?

(Concluded)

(Courtesy: Secular Perspective)

The author is the Director, Centre for the Study of Society and Secularism.

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