INTRODUCTION

India being a secular country, different religions are coexisting in the territory of India with a faith-based Indian society. The Constitution of India was drafted in the backdrop of the partition, due to which our constitution makers one of the objectives was to foster trust and respect for all religions. As there was a deep religious entrenchment in the daily lives of the people, the constitution was not made to follow the ‘strict walls of separation’ model of secularism. There was one of ‘principled distance’[1] and ‘equal rate of tolerance for all.’ But there was a humungous amount of social ills in the society emerging out of religious beliefs, especially in the Hinduism such as child marriage, Sati, Untouchability, caste discrimination and many more which needed to eliminated from the society to set a new egalitarian social order. The Constitution of India also gives us the fundamental right[2] to freely profess, practice, and propagate religion subject to public order, morality, and health. Article 25(2)(b) however makes an exception to the general rule- the state can make a law that provides for social reforms, or which throws open Hindu religious institutions of public nature to all classes and sections of Hindus.[3] These two provisions have always brought controversies and have often come into conflict with religious groups opposing legislation on the grounds of violation of Article 25 and the state defending them as the social reform legislation. For instance, in the case of Triple Talaq[4]case and Sabrimala Case.[5]

DIFFERENT APPORACHES

Indian Constitution maintains three approaches to religion: ‘the state could regulate religious freedom; state neutrality towards all religions; and reformative justice whereby religious freedom would be curtailed on the grounds of public order, health, morality, and religious practices and institutions in economic, financial, political or other secular activities.’[6] The judges in India have to balance religious freedom, social justice, and individual liberty.[7] To bring Social reforms and substantive equality state needs to intervene in the religious affairs to some extent, but with every ERP test by the Supreme Court, the religion’s freedom goes undermined especially in term of a so-called individual’s right to practice religion. The courts began with the ‘essentially religious’ practices which were religious by their very nature and were protected under the constitution. The religious groups or denomination itself had the right to choose what kind of rites do they need to perform, and the state only intervened in such practices, if they were against public order, health or morality or in violation of any of the provisions of Part III. [8] The activities that are regulated by the state, through associated with the religious practice are economic, commercial, or political.[9] According to the present understanding of the ERP test, only those practices are protected under the Constitution of India which is ‘essential to religion’ and which are so much attached to it that changing that particular practices will change the entire character of the religion. There is no such requirement stated in the Constitution, which makes a practice ‘essential to religion.’[10] The court expanded its power after it assumed the power to decide which practices were ‘essential to religion.’ It started to analyze and understand the religious texts and adding additional tests to determine the essentiality of religions, thereby undermining religious freedom, and secularism as a whole.

Through Ram Prasad Seth v. State of Uttar Pradesh,[11] the Allahabad High Court confused ‘essentially religious’ and ‘essential to religion’ which truly crystallized the ERP test and opened religion to be scrutinized by the courts. The judgments which came after this did not interpret essential as a qualification to the nature of practice but as a connotation to mean relevant to the religion.[12]The constitution forbids the court to venture into religious questions under Article 25. In the case of Venkataramma Devaru v. State of Mysore,[13] theSupreme Court went into the interpretation of the sacred texts of Hindu religion to state that untouchability is not an integral or essential part of Hinduism, without untouchability also the religion will have its character. The scholars criticized this kind of active intervention by the court, especially when the court could have given the decision based on Article 14 and Article 15 of the constitution, and based on this could have abolished untouchability. The apex court followed a more sensible approach in the case of Adhitayan v. Travancore Dewaswam Board,[14] where the court heldthat appointment of only Brahmin Priests is a violation of Article 17. Even in Shah Bano’s case,[15] the court could have easily adjudicated upon the case based on the provisions of the Criminal Procedure Code rather than going into the interpretation of verse 241 of Quoran. In the Shah Bano case, a non-muslim secular jurist trained only in secular law, Justice Chandrachud interpreted the significant Islamic law principles upon which there is no consensus even among trained Islamic legal scholars. One of the most notable cases which show how courts have started interpreting the religious texts is Sabarimala case,[16]even in this case, the court could have decided based on principles and provisions of Constitution such as Fundamental rights and DPSP. There was a case in which the Apex court gave a decision on such basis which they were not meant to provide, in the case of Sastri Yagnbapurushadji & ors v. Muldas Bhudardas Vaishya,[17] the petitioners claim that they were not Hindus and hence, the temple entry rules and legislation will not apply to them. The court went into a detailed exposition of tenets of Hinduism and concluded that the Satsangis were Hindus. The court further went on and made them realize that their views regarding the entry into the temple were under a false understanding of the teachings of their founder Swami Narayan’s superstition and ignorance. In this way, the court expertly tutored a religion group about what their religion meant, about which the judges were ill-equipped to do, not being trained in theology. This was also seen in the subsequent judgments of the Apex court, in the case of Nikhil Soni v. Union of India, [18] where the Rajasthan HC banned  Santhara on the ground that it doesn’t constitute an essential religious practice and is hence, not protected under Article 25.

CURRENT SCENARIO

What is essential and what is not essential is now a decision which is not in the hands of the religious leaders; instead, it is in the hands of the courts. In Qureshi v. State of Bihar,[19] the Supreme court stated that slaughter of cows on Eid was not an essential practice to be done on Eid and was also not obligatory as they have options of other animals which could be slaughtered.  A test of obligation was added here by the Supreme Court of India curbing the scope of religious freedom.[20] Even in Fasi v. S.P of Police,[21] where a police officer challenged a law which did not allow the police officer to keep the beard as a violation of his fundamental rights. The court relied on the fact that there are many Muslims who doesn’t have a beard, and even the petitioner himself didn’t have a beard earlier and disregarded the evidence from Quoran provided by the petitioner. In the case of Ismail Farooqui v. Union of India,[22] the court was called upon to decide upon the matter whether or not the state can acquire land over which the Babri Masjid stood and in this case what court scrutinized was whether praying in a mosque is an essential part of Islam or not? The findings of the court were that nowhere in the Islam is given that only prayers can be done inside the mosque and held that it is not essential to pray in a mosque as it could be done in the open too.

The test which is being exercised by the court is the test of obligation, which very much curtails individuals right to practice religion in his way. This test protects a practice only if it is ‘obligatory’ or ‘essential.’ As long as the faith does not get in the path of Public Order, Morality, health, or is not violative of any of the fundamental rights, the practice must be granted protection.

‘Some practices may merely stem from superstitions, such kind of practices need to be scrutinized carefully and rationally’ said Justice Gajendragadkar in Durgah Committee, Ajmer v. Syed Hussain Ali.[23] The Supreme Court introduced a Test of Rationality.[24]

Rationality is a highly subjective term; every individual has a different belief system in a similar way even a judge has his belief system and only because the judge’s idea of morality and rationality is different from that of the religious groups doesn’t make it immoral or irrational. Factually, if we only give this power to a few judges would lead to the imposition of their ideas, elitist and majoritarian cultural values on the community, thus destroying diversity.[25]  In Acharya Jagdishwaranand v. Commissioner of Police, Calcutta,[26] in this case, the court held that tandava was not an essential part of Ananda Margi Faith as it began in 1966 and faith began in 1955. The court effectively added another test of antiquity to determine essentiality. In Bal Patil v. Union of India,[27] the court held that Jainism is not a separate religion than Hinduism but mere a “revolution within Hinduism.” The two religions differ on the fundamental principle of belief in God, and yet the court found it insignificant for the difference between the two religion. Various scholars criticized the judgment by stating that law has no scope in delineating the scope of religion. Based on all these things, the present scenario is found, It is not just enough to be religious for a practice to be approved, it should also be obligatory, moral, rational, and antique.

CONCLUSION

The ERP tests have been criticized variously by scholars and practitioner as the judges are trained in the law, not in theology. The judges can never be competent enough to deliver informed judgments about religious matters. The power of the court can be used arbitrarily to modernize Indian states. The freedom to practice religion is guaranteed to individuals and not to the community and deciding upon such matters curb the freedom of those individuals who wish to practice their faiths in their way and through different practices. The ideologies of judges may threaten the diversity of the religion, and the faith people hold on that religion. Justice Lacobucci said, “the State is in no position to be, nor should it become, the arbiter of religious dogma.”[28] That could involve a secular ideology dictating to a religious one, with a government or courts, re-educating believers to show them their ‘errors.’[29] The state becomes an insider into religion when practices which allow the court to decide the contents of faith are done and this transformation has given the judiciary a political role in ‘secularism adjudication.’- not only it legitimizes state intervention, it carries out the internal critique itself.[30] The most extensive interpretation of the Constitution doesn’t allow the court to test the antiquity, the rationality, and the obligation to be applied to define and set the scope of religion.

The judiciary needs to test spiritual practices on secular values such as equality, liberty, and justice rather than becoming an internal critic of religion themselves.

[1] Rajeev Bhargava, The Distinctivenss of Indian Secularism, T.N. SRINIVASAN (ED.) THE FUTURE OF SECULARISM (Oxford University Press, Delhi, 2006), p.20.

[2] CONSTITUTION OF INDIA, 1950, Article-25.

[3] Sanskriti Prakash & Akash Deep Pandey, Transformative Constitutionalism, Transformative Constitutionalism and the Judicial Role: Balancing Religious Freedom with Social Reform, Religious Freedom and Social Reform: A Balancing Act,  (113) (June 17, 2019, 8:07 AM), http://docs.manupatra.in/newsline/articles/Upload/AB27D7AA-C3B3-4538-BA67-0100E7A0F797.1-G__constitution.pdf

[4] Shayra Bano v. Union of India, (2017) 9 SCC 1

[5] Indian Young Lawyers Association v. State of Kerela, (2017) 10 SCC 689

[6] NJAC Judgment, 4 SCC at 341

[7] NJAC Judgment, 4 SCC at 341

[8] The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Thirtha Swamiar of Shri Mutt, AIR 1954 SC 282.

[9] Ratilal v. State of Bombay, AIR 1954 SC 388.

[10] Sanskriti Prakash & Akash Deep Pandey, Transformative Constitutionalism, Transformative Constitutionalism and the Judicial Role: Balancing Religious Freedom with Social Reform, Religious Freedom and Social Reform: A Balancing Act,  (113) (June 18, 2019, 6:25 PM), http://docs.manupatra.in/newsline/articles/Upload/AB27D7AA-C3B3-4538-BA67-0100E7A0F797.1-G__constitution.pdf

[11] AIR 1957 All 411 cited in Sanskriti Prakash & Akash Deep Pandey, Transformative Constitutionalism, Transformative Constitutionalism and the Judicial Role: Balancing Religious Freedom with Social Reform, Religious Freedom and Social Reform: A Balancing Act,  (113) (June 18, 2019, 6:25 PM), http://docs.manupatra.in/newsline/articles/Upload/AB27D7AA-C3B3-4538-BA67-0100E7A0F797.1-G__constitution.pdf

[12] Sanskriti Prakash & Akash Deep Pandey, Transformative Constitutionalism, Transformative Constitutionalism and the Judicial Role: Balancing Religious Freedom with Social Reform, Religious Freedom and Social Reform: A Balancing Act,  (113) (June 18, 2019, 6:25 PM), http://docs.manupatra.in/newsline/articles/Upload/AB27D7AA-C3B3-4538-BA67-0100E7A0F797.1-G__constitution.pdf

[13] AIR 1958 SC 255.

[14] AIR 2002 SC.

[15] AIR 1985 SC 945 cited in Sanskriti Prakash & Akash Deep Pandey, Transformative Constitutionalism, Transformative Constitutionalism and the Judicial Role: Balancing Religious Freedom with Social Reform, Religious Freedom and Social Reform: A Balancing Act,  (115) (June 18, 2019, 6:25 PM), http://docs.manupatra.in/newsline/articles/Upload/AB27D7AA-C3B3-4538-BA67-0100E7A0F797.1-G__constitution.pdf

[16] Indian Young Lawyers Association v. State of Kerela, (2017) 10 SCC 689

[17] AIR 1966 SC 1119.

[18] 2015 Cri LJ 4951

[19] AIR 1958 SC 731.

[20] M. Mohsin Alam, Constructing Secularism: Seperating ‘Religion’ and ‘State’ under Indian Constitution, ASIAN LAW, VOL.11, (2009) p.39.

[21] 1985 ILLJ 463 Ker.

[22] AIR 1995 SC 605.

[23] AIR 1961 SC 1402

[24] 2015 Cri LJ 4951

[25] Sanskriti Prakash & Akash Deep Pandey, Transformative Constitutionalism, Transformative Constitutionalism and the Judicial Role: Balancing Religious Freedom with Social Reform, Religious Freedom and Social Reform: A Balancing Act,  (117) (June 18, 2019, 6:25 PM), http://docs.manupatra.in/newsline/articles/Upload/AB27D7AA-C3B3-4538-BA67-0100E7A0F797.1-G__constitution.pdf

[26] AIR 1984 SC 512

[27] (2005) 6 S.C.C 690.

[28] Syndicat Northcrest v. Amselem, (2004) 2 SCR 581 (Canada).

[29] ROGER TRIGG, EQUALITY, FREEDOM AND RELIGION, p.45, (Oxford University Press, New York, 2012).

[30] 2015 Cri LJ 4951.