A diary from the wall of Raghunandan TR, former Joint Secretary at Govt of India.
It is a note that I prepared for my own understanding of the legal position, with respect to the freedom of religion enshrined in our constitution. The freedom of religion is described in the Constitution in two Articles, as follows:
Article 25
It is a note that I prepared for my own understanding of the legal position, with respect to the freedom of religion enshrined in our constitution. The freedom of religion is described in the Constitution in two Articles, as follows:
Article 25
- 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, practice and propagate religion
- Nothing in this Article shall affect the operation of any existing law or prevent the State from making any law -
a) Regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
b) Providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus;
Article 26
Subject to public order, morality and health, every religious denomination or any section thereof shall have the right -
a) to establish and maintain institutions for religious and charitable purposes;
b) to manage its own affairs in matters of religion;
c) to own and acquire movable and immovable property; and
d) to administer such property in accordance with law.
So it is clear as the day that (a) Indians have freedom of conscience and the right to profess, practice and propagate religion (See Article 25(1)) and every religious denomination or section thereof has the right to manage its affairs in matters of religion and maintain institutions for religious and charitable purposes (See Article 26 (a) and (b)). However, these rights are subject to two restrictions as follows:
I) Article 25 (2)(a) says that laws can be made to regulate or restrict any economic, financial, political or secular activity which may be associated with religious practice. And
II) Article 25(2) (b) says that laws can be made to provide for social welfare and reform OR the throwing open of Hindu religious institutions of a public character, to all classes and sections of Hindus.
The important thing to note, particularly for those who ask the question why only Hindu institutions are subject to orders of being thrown open to all classes and sections of Hindus, is that Article 25(2) (b) is indeed asymmetric by the plain wording of it. However, if one reads the article carefully, it is not as if other religions cannot be regulated. The first part of Article 25(2) (b) – making of laws to provide for social welfare and reform – very wide words – are applicable to all religions and the second part of 25(2)(b) –opening of Hindu religious institutions – is only applicable to those of a public character.
For those who still feel that this extra pressure on Hindu religious institutions of a public character is asymmetrically intrusive, I would suggest that they read the debates in the Constitutional Assembly to understand why this asymmetry was introduced in the first place. For reasons of brevity, I am not going to post it here; I can abstract and post that later.
Now to come to the Supreme Court’s consideration of the scope and ambit of Articles 25 and 26, those who are not happy with the judgment say that the Supreme Court should not have interfered in matters of religion. Well, first, I suggest that they should read the above clauses in the Constitution without mental blocks and biases. Second, they are unaware also that there is a long history of the Supreme Court adjudicating on questions relating to Articles 25 and 26, from the 1950s onward.
Please read the excellent article that I have linked here. The author has brilliantly analysed the evolving interpretation by the Supreme Court of the right to freedom of religion. From her article, for my own understanding, I made extensive notes, particularly on the important landmark judgments of the Supreme Court in Articles 25 and 26, arranged in chronological order, to show how the law evolved. A lot of the language I have used is credited to the author, though I have modified it somewhat, here and there. The final points I make are my own.
So here are some important judicial pronouncements on the freedom of religion.
(1) Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiyar of Shirur Mutt, (1954) SCR 1005.
The Madras Hindu Religious and Charitable Endowments Act, 1951 was enacted to empower a statutory commissioner to intervene if they had ‘reason to believe’ that a religious institution was mismanaging funds. The Mathadhipathi of the Shirur Mutt challenged this provision, claiming that it interfered with his right to manage the religious affairs of the Mutt. The Supreme Court examined the question as to where the line is to be drawn between what are matters of religion and what are not?. The Court held; “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.” (The ‘Shirur Mutt doctrine’).
(2) Sri Venkataramana Devaru vs State of Mysore, (1958) SCR 895.
The Goud Saraswat Brahmins challenged the Madras Temple Entry Authorisation Act, 1947 which threw open the doors of the temple of Sri Venkataramana of Moolky to Harijans, claining that they had a right to exclude other communities from entering their temple as a matter of religion. The Court, instead of studying what constitutes the ‘essential part of the religion’ as practiced by Goud Saraswat Brahmins, itself went into great detail into scripture, ancient literature, the practice of Hindus and the role of temples and held that the exclusion was under the ceremonial law of the Hindus and therefore, an essential practice. The methodology adopted by Justice Venkatarama Iyer in his judgment was criticised as it positioned the Supreme Court as a theological expert.
(3). Mohd Hanif Quareshi vs State of Bihar, (1959) SCR 629.
The Qureshi Muslims challenged the ban on cow slaughter, claiming that they were compelled by their religion to sacrifice cows on Bakrid. The Court adopted the rationale used in the Venkatramana Devaru case and examined the Islamic religious texts. It found that there was no evidence to show that sacrifice of cows on Bakrid was an essential practice for the Qureshi Muslims. It rejected the argument of the Qureshi Muslims that they had made such sacrificed since “time immemorial” in the face of the absence of any religious sanction for the same.
(4). Durgah Committee, Ajmer vs Syed Hussain Ali, (1962) 1 SCR 383.
The Chadims of the tomb of Hazrat Khwaja Moin–Ud-Din Chisthi of Ajmer challenged in the Supreme Court, the Rajasthan Government law constituting a committee to manage the Dargah. The Supreme Court dismissed the case. In doing so, Justice Gajendragadkar observed; “… even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 26…..similarly, even practices, though religious, may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself… In other words, the protection under Article 26 must be confined to such religious practices as are an essential and an integral part of it and no other.” The Court thus made a distinction between religious practices and superstitious beliefs and introduced the test of ‘careful scrutiny’ to the Shirur Mutt test of 'essential practices'.
(5) Sardar Syedna Taher Saifudeen Sahib vs. State of Bombay, (1962) Supp (2) SCR 496.
The Syedna of the Dawoodi Bohra community challenged the constitutional validity of the Bombay Prevention of Excommunication Act, 1949 which banned excommunication. The majority of the Judges struck down the Excommunication Act as violating Article 25 and 26 and held that the Bohras had the right to excommunicate. However, Justice Sinha dissented and made a strong case for recognizing the individual right guaranteed in Artice 25 over the right of an organised body like a religious denomination or any section as stated out in Article 26. He felt that every member of the community has the “right, so long as he does not in any way interfere with the corresponding rights of others, to profess, practice and propagate his religion, and everyone is guaranteed his freedom of conscience.” He said that only such an approach would enable the State to restrict undesirable religious practices, such as the religious practices of sacrifice of human beings or animals in a way deleterious to the wellbeing of the community at large. He said that it must be open to the State to intervene to restrict, regulate or completely stop such practices in the interest of the community at large. He also pointed out that social reform such as the prohibition of sati, or devadasi, or ostracizing a person from all social contacts and religious communion on account of his having eaten forbidden food or taboo, were stopped by legislation in the past.
This dissenting judgment in the Dawoodi Bohra case has an important bearing on the way that the law evolved from this point onward.
(6). Tilkayat Shri Govindlalji Maharaj vs. State of Rajasthan & ors, (1964) 1 SCR 561.
In this case, the same judge who put forth the Shirur Mutt formula, Justice Gajendragadkar, felt constrained to say that it was not always possible to find solutions from within a community’s tenets, when conflicting evidence is produced in respect of rival contentions. The principle of letting the community decide its essential practices would break down when there was more than one voice for the community.
(7) Sastri Yagnapurushadji & other vs. Muldas Brewdardas Vaishya & anr, AIR 1966 1119.
In this case, the Swaminarayan sect challenged the Bombay Hindu Places of Public Worship (Entry Authorisation) Act, 1956, which threw open temples to Dalits. The Swaminarayan sect claimed that they were a different denomination under the provisions of Article 25(2) and sought to be exempted from the law. Justice Gajendragadkar held that while the suit is based on a genuine apprehension entertained by the appellants, the said apprehension is founded on superstition, ignorance and complete misunderstanding of the true teachings of Hindu religion and of the real significance of the tenets and philosophy taught by Swaminarayan himself.
If we pause here to consider the effects of these judgments, it was cleare that by 1964, the Courts had settled on two patterns in their approach. First, they were taking on the mantle of getting into the substantive questions of what were the essential practices of a religion, and second, they were increasingly dealing with restrictive practices with a pro-reform and anti-discrimination attitude.
Now let us look at some more cases:
(8) Acharya Jagdishwaranand Avadhuta vs Commissioner of Police, Calcutta, (1983) 4 SCC 522.
In this case, the Ananda Margis, who wished to dance the tandava dance in public with a skull, a knife, trishul (trident) and a damaroo(pellet drum), were prohibited by the police. The Supreme Court held that the tandava dance was not an essential religious rite of the Ananda Margis, was of recent origin and even conceding that the dance was prescribed as a religious right for every Ananda Margi, it was not necessary to be performed in public.
(9) Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi vs. State of UP, (1997) 4 SCC 606.
In this case, the petitioners challenged the Uttar Pradesh Sri Kashi Vishwanatha Temple Act, 1983, which entrusted the management of the temple with the State. The Supreme Court again cautioned that sometimes practices, religious or secular, are inextricably mixed up.
(10) N. Adithayan vs. Travancore Devaswom Board, (2002) 8 SCC 106.
This is a very important case in the context of the Sabarimala issue. In this case, a question arose before the Court whether the Travancore Devaswom Board could appoint a non-Malayalee brahmin as priest of the Kongorpilli Neerikodu Shiva temple. The Court held that ‘Any custom or usage irrespective of even any proof of their existence in pre-constitutional days cannot be countenanced as a source of law to claim any rights when it is found to violate human rights, dignity, social equality and the specific mandate of the Constitution and law made by Parliament. No usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by courts in the country.
(11) Commissioner of Police v. Acharya Jagdishwarananda Avadhuta, (2004) 12 SCC 770.
The Ananda Margis, not to be deterred by the Supreme Court’s order prohibiting the Tandava dance in public as it was a non-essential practice, revised their religious book to prescribe the tandava dance as an essential religious practice. The Supreme Court did not concur with them and said, “Such alterable parts or practices are definitely not the 'core' of religion where the belief is based and religion is founded upon. It could only be treated as mere embellishments to the non-essential part or practices.” The Supreme Court went by the logic that even when texts expressly state a practice to be as an essential practice of the relatively new religion, Courts need to look into whether the absence of the practice would make a fundamental change to the religion. Thus, a distinction was drawn between ‘the core of a religion’ and ‘mere embellishments’.
(12) Adi Saiva Sivachariyargal Nala Sangam vs. Government of Tamil Nadu, (2016) 2 SCC 725.
In this case, a Government Order that permitted “any qualified Hindu” to be an Archaka of a temple was challenged as violative of the petitioners’ right to appoint Archakas from their own denomination in accordance with the Agamas. The Supreme Court held that “the constitutional legitimacy, naturally, must supersede all religious beliefs or practices.”
(13) Shayara Banu vs Union of India, (2017) 9 SCC 1.
Finally, the Triple Talaq case. Here, the Court examined whether Triple Talaq was an essential practice to the Hanafi school of Muslims. The Supreme Court examined Islamic jurisprudence and held that Triple Talaq was not an essential practice. It also Court observed that a practice does not acquire the sanction of religion simply because it is permitted and merely because a practice has continued for long; that by itself cannot make it valid.
From an analysis of the above cases, it can be clearly seen that there have been two streams of evolution in the examination of the Fundamental right to practice religion.
First, even though in the Shirur Mutt case the Court said that what is essential to a religion must be seen from the prevailing customs of that religion, it has not, in subsequent cases, shied away from getting into the details of the religious practices that are placed before it and ascertaining for itself whether such a practice is essential to a religion or otherwise. In that context, it has propounded more doctrines, including that mere superstitions and beliefs cannot be considered as central to a religion. It has done this not only in the case of Hindu beliefs, but also Islamic beliefs. Courts have done so in spite of the asymmetry contained in Article 25(2)(b) that mandates a greater scrutiny of the access rights of Hindus to temples, as compared to the access rights of Muslims to Mosques and Dargahs. Thus, its judgments have touched both the Hindu and the Muslim religions and their denominations. In addition, right from the very beginning, the Supreme Court has also drawn clear borders around terms such as ‘religious denomination’ thus disallowing the tendency for self selected champions of orthodoxy to seek protection and flexibility as a religious denomination’.
However, there has been another trend that emerged as well, with respect to the value given to individual rights over community beliefs. In the initial years, the Shirur Mutt doctrine was diluted by the decision in the Goud Saraswat case, where the people of the latter community were able to keep Dalits out of a temple and that was upheld by the Supreme Court in the judgment of Justice Venkatrama Iyer. However, beginning with the dissenting judgment of Justice Sinha in the Dawoodi Bohra case, there has been a greater recognition of individual rights over the so called collective rights of the community. This approach has found more and more strength, as the courts have now become emboldened to place constitutional values, dignity of individuals and social equality on a higher pedestal than religious claims. The Triple Talaq judgment is an excellent example of this approach of the Supreme Court.
Thus, for all those who claim that the decision of the Court in the Sabarimala case is an example of judicial overreach, it is not. It is the next step in an evolving area of jurisprudence, where the reasonings of earlier judgments have been considered and applied, by 4 judges as opposed to one dissenting judge. This approach has found excellent expression in the judgment of Justice Chandrachud, which I would invite all of you to read.
Second, the list of precedents would show that the court has equally passed judgment on cases that concern Islam. So at least on that count, there is an answer to those who erroneously argue that there is too much interference in the Hindu religion by courts and much less in Islam.
Original post can be read here on Facebook. Read more from Raghunandan TR Diary
a) to establish and maintain institutions for religious and charitable purposes;
b) to manage its own affairs in matters of religion;
c) to own and acquire movable and immovable property; and
d) to administer such property in accordance with law.
So it is clear as the day that (a) Indians have freedom of conscience and the right to profess, practice and propagate religion (See Article 25(1)) and every religious denomination or section thereof has the right to manage its affairs in matters of religion and maintain institutions for religious and charitable purposes (See Article 26 (a) and (b)). However, these rights are subject to two restrictions as follows:
I) Article 25 (2)(a) says that laws can be made to regulate or restrict any economic, financial, political or secular activity which may be associated with religious practice. And
II) Article 25(2) (b) says that laws can be made to provide for social welfare and reform OR the throwing open of Hindu religious institutions of a public character, to all classes and sections of Hindus.
The important thing to note, particularly for those who ask the question why only Hindu institutions are subject to orders of being thrown open to all classes and sections of Hindus, is that Article 25(2) (b) is indeed asymmetric by the plain wording of it. However, if one reads the article carefully, it is not as if other religions cannot be regulated. The first part of Article 25(2) (b) – making of laws to provide for social welfare and reform – very wide words – are applicable to all religions and the second part of 25(2)(b) –opening of Hindu religious institutions – is only applicable to those of a public character.
For those who still feel that this extra pressure on Hindu religious institutions of a public character is asymmetrically intrusive, I would suggest that they read the debates in the Constitutional Assembly to understand why this asymmetry was introduced in the first place. For reasons of brevity, I am not going to post it here; I can abstract and post that later.
Now to come to the Supreme Court’s consideration of the scope and ambit of Articles 25 and 26, those who are not happy with the judgment say that the Supreme Court should not have interfered in matters of religion. Well, first, I suggest that they should read the above clauses in the Constitution without mental blocks and biases. Second, they are unaware also that there is a long history of the Supreme Court adjudicating on questions relating to Articles 25 and 26, from the 1950s onward.
Please read the excellent article that I have linked here. The author has brilliantly analysed the evolving interpretation by the Supreme Court of the right to freedom of religion. From her article, for my own understanding, I made extensive notes, particularly on the important landmark judgments of the Supreme Court in Articles 25 and 26, arranged in chronological order, to show how the law evolved. A lot of the language I have used is credited to the author, though I have modified it somewhat, here and there. The final points I make are my own.
So here are some important judicial pronouncements on the freedom of religion.
(1) Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiyar of Shirur Mutt, (1954) SCR 1005.
The Madras Hindu Religious and Charitable Endowments Act, 1951 was enacted to empower a statutory commissioner to intervene if they had ‘reason to believe’ that a religious institution was mismanaging funds. The Mathadhipathi of the Shirur Mutt challenged this provision, claiming that it interfered with his right to manage the religious affairs of the Mutt. The Supreme Court examined the question as to where the line is to be drawn between what are matters of religion and what are not?. The Court held; “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.” (The ‘Shirur Mutt doctrine’).
(2) Sri Venkataramana Devaru vs State of Mysore, (1958) SCR 895.
The Goud Saraswat Brahmins challenged the Madras Temple Entry Authorisation Act, 1947 which threw open the doors of the temple of Sri Venkataramana of Moolky to Harijans, claining that they had a right to exclude other communities from entering their temple as a matter of religion. The Court, instead of studying what constitutes the ‘essential part of the religion’ as practiced by Goud Saraswat Brahmins, itself went into great detail into scripture, ancient literature, the practice of Hindus and the role of temples and held that the exclusion was under the ceremonial law of the Hindus and therefore, an essential practice. The methodology adopted by Justice Venkatarama Iyer in his judgment was criticised as it positioned the Supreme Court as a theological expert.
(3). Mohd Hanif Quareshi vs State of Bihar, (1959) SCR 629.
The Qureshi Muslims challenged the ban on cow slaughter, claiming that they were compelled by their religion to sacrifice cows on Bakrid. The Court adopted the rationale used in the Venkatramana Devaru case and examined the Islamic religious texts. It found that there was no evidence to show that sacrifice of cows on Bakrid was an essential practice for the Qureshi Muslims. It rejected the argument of the Qureshi Muslims that they had made such sacrificed since “time immemorial” in the face of the absence of any religious sanction for the same.
(4). Durgah Committee, Ajmer vs Syed Hussain Ali, (1962) 1 SCR 383.
The Chadims of the tomb of Hazrat Khwaja Moin–Ud-Din Chisthi of Ajmer challenged in the Supreme Court, the Rajasthan Government law constituting a committee to manage the Dargah. The Supreme Court dismissed the case. In doing so, Justice Gajendragadkar observed; “… even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 26…..similarly, even practices, though religious, may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself… In other words, the protection under Article 26 must be confined to such religious practices as are an essential and an integral part of it and no other.” The Court thus made a distinction between religious practices and superstitious beliefs and introduced the test of ‘careful scrutiny’ to the Shirur Mutt test of 'essential practices'.
(5) Sardar Syedna Taher Saifudeen Sahib vs. State of Bombay, (1962) Supp (2) SCR 496.
The Syedna of the Dawoodi Bohra community challenged the constitutional validity of the Bombay Prevention of Excommunication Act, 1949 which banned excommunication. The majority of the Judges struck down the Excommunication Act as violating Article 25 and 26 and held that the Bohras had the right to excommunicate. However, Justice Sinha dissented and made a strong case for recognizing the individual right guaranteed in Artice 25 over the right of an organised body like a religious denomination or any section as stated out in Article 26. He felt that every member of the community has the “right, so long as he does not in any way interfere with the corresponding rights of others, to profess, practice and propagate his religion, and everyone is guaranteed his freedom of conscience.” He said that only such an approach would enable the State to restrict undesirable religious practices, such as the religious practices of sacrifice of human beings or animals in a way deleterious to the wellbeing of the community at large. He said that it must be open to the State to intervene to restrict, regulate or completely stop such practices in the interest of the community at large. He also pointed out that social reform such as the prohibition of sati, or devadasi, or ostracizing a person from all social contacts and religious communion on account of his having eaten forbidden food or taboo, were stopped by legislation in the past.
This dissenting judgment in the Dawoodi Bohra case has an important bearing on the way that the law evolved from this point onward.
(6). Tilkayat Shri Govindlalji Maharaj vs. State of Rajasthan & ors, (1964) 1 SCR 561.
In this case, the same judge who put forth the Shirur Mutt formula, Justice Gajendragadkar, felt constrained to say that it was not always possible to find solutions from within a community’s tenets, when conflicting evidence is produced in respect of rival contentions. The principle of letting the community decide its essential practices would break down when there was more than one voice for the community.
(7) Sastri Yagnapurushadji & other vs. Muldas Brewdardas Vaishya & anr, AIR 1966 1119.
In this case, the Swaminarayan sect challenged the Bombay Hindu Places of Public Worship (Entry Authorisation) Act, 1956, which threw open temples to Dalits. The Swaminarayan sect claimed that they were a different denomination under the provisions of Article 25(2) and sought to be exempted from the law. Justice Gajendragadkar held that while the suit is based on a genuine apprehension entertained by the appellants, the said apprehension is founded on superstition, ignorance and complete misunderstanding of the true teachings of Hindu religion and of the real significance of the tenets and philosophy taught by Swaminarayan himself.
If we pause here to consider the effects of these judgments, it was cleare that by 1964, the Courts had settled on two patterns in their approach. First, they were taking on the mantle of getting into the substantive questions of what were the essential practices of a religion, and second, they were increasingly dealing with restrictive practices with a pro-reform and anti-discrimination attitude.
Now let us look at some more cases:
(8) Acharya Jagdishwaranand Avadhuta vs Commissioner of Police, Calcutta, (1983) 4 SCC 522.
In this case, the Ananda Margis, who wished to dance the tandava dance in public with a skull, a knife, trishul (trident) and a damaroo(pellet drum), were prohibited by the police. The Supreme Court held that the tandava dance was not an essential religious rite of the Ananda Margis, was of recent origin and even conceding that the dance was prescribed as a religious right for every Ananda Margi, it was not necessary to be performed in public.
(9) Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi vs. State of UP, (1997) 4 SCC 606.
In this case, the petitioners challenged the Uttar Pradesh Sri Kashi Vishwanatha Temple Act, 1983, which entrusted the management of the temple with the State. The Supreme Court again cautioned that sometimes practices, religious or secular, are inextricably mixed up.
(10) N. Adithayan vs. Travancore Devaswom Board, (2002) 8 SCC 106.
This is a very important case in the context of the Sabarimala issue. In this case, a question arose before the Court whether the Travancore Devaswom Board could appoint a non-Malayalee brahmin as priest of the Kongorpilli Neerikodu Shiva temple. The Court held that ‘Any custom or usage irrespective of even any proof of their existence in pre-constitutional days cannot be countenanced as a source of law to claim any rights when it is found to violate human rights, dignity, social equality and the specific mandate of the Constitution and law made by Parliament. No usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by courts in the country.
(11) Commissioner of Police v. Acharya Jagdishwarananda Avadhuta, (2004) 12 SCC 770.
The Ananda Margis, not to be deterred by the Supreme Court’s order prohibiting the Tandava dance in public as it was a non-essential practice, revised their religious book to prescribe the tandava dance as an essential religious practice. The Supreme Court did not concur with them and said, “Such alterable parts or practices are definitely not the 'core' of religion where the belief is based and religion is founded upon. It could only be treated as mere embellishments to the non-essential part or practices.” The Supreme Court went by the logic that even when texts expressly state a practice to be as an essential practice of the relatively new religion, Courts need to look into whether the absence of the practice would make a fundamental change to the religion. Thus, a distinction was drawn between ‘the core of a religion’ and ‘mere embellishments’.
(12) Adi Saiva Sivachariyargal Nala Sangam vs. Government of Tamil Nadu, (2016) 2 SCC 725.
In this case, a Government Order that permitted “any qualified Hindu” to be an Archaka of a temple was challenged as violative of the petitioners’ right to appoint Archakas from their own denomination in accordance with the Agamas. The Supreme Court held that “the constitutional legitimacy, naturally, must supersede all religious beliefs or practices.”
(13) Shayara Banu vs Union of India, (2017) 9 SCC 1.
Finally, the Triple Talaq case. Here, the Court examined whether Triple Talaq was an essential practice to the Hanafi school of Muslims. The Supreme Court examined Islamic jurisprudence and held that Triple Talaq was not an essential practice. It also Court observed that a practice does not acquire the sanction of religion simply because it is permitted and merely because a practice has continued for long; that by itself cannot make it valid.
From an analysis of the above cases, it can be clearly seen that there have been two streams of evolution in the examination of the Fundamental right to practice religion.
First, even though in the Shirur Mutt case the Court said that what is essential to a religion must be seen from the prevailing customs of that religion, it has not, in subsequent cases, shied away from getting into the details of the religious practices that are placed before it and ascertaining for itself whether such a practice is essential to a religion or otherwise. In that context, it has propounded more doctrines, including that mere superstitions and beliefs cannot be considered as central to a religion. It has done this not only in the case of Hindu beliefs, but also Islamic beliefs. Courts have done so in spite of the asymmetry contained in Article 25(2)(b) that mandates a greater scrutiny of the access rights of Hindus to temples, as compared to the access rights of Muslims to Mosques and Dargahs. Thus, its judgments have touched both the Hindu and the Muslim religions and their denominations. In addition, right from the very beginning, the Supreme Court has also drawn clear borders around terms such as ‘religious denomination’ thus disallowing the tendency for self selected champions of orthodoxy to seek protection and flexibility as a religious denomination’.
However, there has been another trend that emerged as well, with respect to the value given to individual rights over community beliefs. In the initial years, the Shirur Mutt doctrine was diluted by the decision in the Goud Saraswat case, where the people of the latter community were able to keep Dalits out of a temple and that was upheld by the Supreme Court in the judgment of Justice Venkatrama Iyer. However, beginning with the dissenting judgment of Justice Sinha in the Dawoodi Bohra case, there has been a greater recognition of individual rights over the so called collective rights of the community. This approach has found more and more strength, as the courts have now become emboldened to place constitutional values, dignity of individuals and social equality on a higher pedestal than religious claims. The Triple Talaq judgment is an excellent example of this approach of the Supreme Court.
Thus, for all those who claim that the decision of the Court in the Sabarimala case is an example of judicial overreach, it is not. It is the next step in an evolving area of jurisprudence, where the reasonings of earlier judgments have been considered and applied, by 4 judges as opposed to one dissenting judge. This approach has found excellent expression in the judgment of Justice Chandrachud, which I would invite all of you to read.
Second, the list of precedents would show that the court has equally passed judgment on cases that concern Islam. So at least on that count, there is an answer to those who erroneously argue that there is too much interference in the Hindu religion by courts and much less in Islam.
Original post can be read here on Facebook. Read more from Raghunandan TR Diary
