This article is written by Indrasish Majumdar, LawSikho Intern. The article has been edited by Ruchika Mohapatra (Associate, LawSikho) and Arundhati Das (Intern at LawSikho).
This article has been published by Abanti Bose.
The secularism theory in India is quite ingenious. Although initially the practice and spread of religious belief were suggested to be beyond the purview of the state, secularism in post-colonial India was not a principle replicated from the annals of its Western tradition. Secularism in India differed greatly, considering it had to encompass the distinctive socio-religious cultural identity of its people, in addition to the intricacies of India’s multiple religious’ communities. Essentially, Indian secularism has three aspects: Religion shall never play a role in the relations between the State and the individual (ii) the non-interventionist stature of the State was expected to grant equitable freedom of religion by guaranteeing that it did not interfere between the individual and his or her religious belief; (iii) Government intervention was to reinterpret the scope of religion, whereas non-intervention from the State was to provide religious establishments freedom from state intervention.
The Supreme Court of India came up with a key principle to determine the relationship between religion and the Constitution. The doctrine enumerates if a practice is crucial to a specific religion, it cannot be monitored or curtailed by the Government. This proposition was to the root of what later morphed into the “essential test of religious practice.” The test left the courts with two approaches – the first, wherein it was decided by the religion itself what was, and was not, essential practice following its sacred books and inscriptions. The second was for the courts to perform the role of cultural critic and to differentiate religious areas of life in India from temporal ones. The “essential religious practices test” was fashioned by the Supreme Court for the first time in the case of “The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt”, enumerating that the freedom of religion as enshrined in the Constitution extended to religious practices and was not limited to religious beliefs only, and was subject to limitations under the Constitution.
The Apex Court fluctuates between the two approaches and neither of the two approaches have been adopted by it as of yet, definitively. Several cases put the responsibility on religion to determine the essentiality of a particular norm, while others place that responsibility on the courts. The issue that arises from the first approach is the likelihood that religious groups may unjustifiably interpret every action as ‘essential,’ rendering very little scope for any legislative reform. This promotes divisive populism on basis of religion, as disorganized factions promote political activity bolstered by religious narratives. With the latter approach, there is a consideration that courts may not be fitted to decide on social change in religious circles, as religious aspects in India often tend towards policy-related issues.
The purpose of this article is to examine the essential religious practices test and how it integrates the broader constitutional freedom of practising one’s religion with the reparative secular values enshrined in the Constitution. Part II of this paper evaluates the substantial jurisprudence in India, which foments the essential religious practices test and identifies contradictions through cases and also lists some essential religious practices under the Hindu Personal Law on Marriage and Adoption. Part III criticizes the theory of ‘essential’ religious practices throws light on its shortcomings and problems, and proposes an alternative, bearing in mind the peculiarities of Indian secularism. Part IV concludes by stressing the need to introduce an alternative to ERP in India.
Understanding essential religious practice : intermingling of law and religion
Considering India’s diverse democratic setup, which has thrived on the strong foundation of both regulations and rights, merely touching upon the two distinct domains of law and religion would not have sufficed. Though patently different, it is also true that both law and religion form the fundamental needs of the society. Therefore, the Apex Court as well as the High Courts have propounded certain parameters which can be taken as a benchmark while establishing and entrusting protection to such beliefs that are significant to the existence of the religion. In the following sections, the authors undertake an in-depth analysis so as to understand the position of essential religious practices under Constitutional Law as well as Personal Law.
Essential religious practices under Hindu Personal Law
Marriage and adoption for Hindus are two practices the legitimacy of which is derived from the personal laws of Hindus. The following section of the paper shall deliberate on a few essential religious practices under Hindu Personal law for adoption and marriage, without which neither of the two processes can be legally solemnized. “Section 5 of the Hindu Marriage Act, 1955” enumerates the requirements important for a Hindu marriage; namely: At the time of the marriage, neither party,- (a) is incapable of providing legal consent as a result of unsound mind; or (b) even if they are capable of giving informed consent, they are not inflicted by a psychiatric illness of nature which renders them unfit for marriage and childbearing; or (c) has been exposed to repeated acts of lunacy;
- The bridegroom is twenty-one years old and the bride is eighteen years of age at the time of marriage;
- The parties are not bound by the edicts of a forbidden partnership unless the practice allows marriage;
- The parties to a marriage are not sapindas unless marriage between the concerned parties is permitted by tradition;
- A bride doesn’t need to be a virgin.
Section 7 enumerates the essential rituals of Hindu matrimony. A Hindu marriage can be celebrated in compliance with the traditional rites of either of the concerned parties. One such customary ritual is “saptapadi” (taking seven steps by the bridegroom and bride in togetherness). However, the Supreme Court in one “Seema vs. Ashwani Kumar AIR 2006 SC 1158”, opined that the marital union of all Indian citizens belonging to different religions be compulsorily registered. If marriage is documented, most marital conflicts can be safely prevented. Registration was intended to secure the interests of the women and also to prevent the problems of recognition of the rights of children.
In “P. Ramesh Kumar vs. Secretary Kannapuram Grama Panchayat, AIR 1998 ker. 95”, it was opined by a single judge of the Kerala High Court that a Buddhist lady with a Japanese nationality had married a Hindu without registration. However, the certificate of registration was not a matter of concern invalidating the marriage since the bridegroom was not an Indian domicile.
It was enumerated in the Hindu Shastras that the adoptive son should be a manifestation of the real son. This ensured the protection of the adopted boy. He was no more an adoptive son only, but all ties on the matrilineal and patrilineal side of the adoptive family were to be regarded as natural relations implying the boy cannot marry the daughter of his adoptive parents, irrespective of whether the daughter was naturally born or adopted. The key aim of contemporary adoption legislation is to offer comfort and support to a childless parent and, on the other hand, provide the needy, abandoned, destitute or illegitimate child with parents. However, in the Chandrashekhara case, it was held that the legitimacy of the adoption must be decided based on moral rather than physical factors and the transfer of property is therefore of secondary significance.
The implementation of the Hindu Law is currently regulated by “the Hindu Adoption and Maintenance Act, 1956” which applies only to Hindus as specified in Section 2 of the Act and includes any individual who is a Hindu by religion, including Virashaiva, Lingayat or a disciple of “Brahma, Prarthana or Arya Samaj, or a Buddhist, Jaina or Sikh”, to any person who is not a Muslim, Christian, Parsian or Jew. It also encompasses any legal or illegitimate infant who has been discarded either by his parents or whose paternity is not documented and is raised as a Hindu, Buddhist, Jaina or Sikh.
The essential conditions for legitimate adoption as laid down in Hindu Personal law is as follows 1) The person to be adopted is lawfully capable of being adopted 2) The adoption is complete upon real giving and taking and once the ritual is termed the datahoman (fire oblation) has been carried out. However, this might not be essential concerning the legitimacy of adoption in all circumstances. The child may be adopted:
- So long he or she is a Hindu;
- He or she has not been adopted already;
- He or she has not been engaged unless there is a tradition or practise relevant to the partners that allow adopting persons who are married;
- He or she has not attained fifteen years of age unless there is a practice applicable to the parties that enables the adoption of children irrespective;
The judgment of 6 March was delivered in light of an appeal filed by Mr Vanaja, who claimed the title of the late Narasimhulu Naidu’s adoptive daughter. She had filed a civil suit for partitioning the property which was dismissed. The High Court of Hyderabad subsequently affirmed the dismissal. Pursuantly, an appeal was filed before the Supreme Court. Justice Rao, who penned the judgment opined Sections 7 and 11 of the 1956 Act which lays down the two essential conditions for adoption “1) consent of the wife before the adoption of the child by the Hindu male and the 2) evidence of the ceremony of actual giving and receiving needs to be mandatorily fulfilled.” The conditions enumerated above for the completion of the above-mentioned practices of marriage and adoption per Hindu personal laws can be determined as essential religious practices of the concerned sect without which a Hindu marriage cannot be solemnized nor can an adoption take place.
Essential religious practices under Constitutional Law
The Constitution provides for “freedom of conscience and right to freely practice, profess and propagate religion subject to public order, morality and health.” Usage of the word ‘person’ reflected the conscious effort of the framers to vest in every individual, the freedom of religion regardless of whether they were the citizens of the country. Additionally, the provisions of reasonable restrictions mentioned in each of these rights embodied the balance which the Constitution sought to draw between the religious rights and goals of growth and development. However, given the countless beliefs in every religion, conferring legal protection upon all beliefs, including those which were remotely related or connected to a religion, would have flooded the courts with legions of religious claims by each community almost every other day. Therefore, protection under Articles 25-28 was afforded to only such practices of religion which fall under the broad umbrella of essential religious practices.
As of today, the courts have taken upon themselves, the onus of identifying the nature of the practice in question. Consequently, the Honorable Supreme Court of India [hereinafter Supreme Court] has declared that “it is for the Court to ascertain whether a practice forms an essential part of the religion”. When such questions appear before the Supreme Court, it analyses them in light of the doctrines of that specific religion. Following are the key principal tests which though have not been directly laid down by the Courts, have been considered while discerning the essentiality of a practice.
Test of scriptures
Scriptures also referred to as the holy or the sacred text, comprise literature on a particular religion. Most religions have their own scriptures which not only fosters a religious identity and spirituality among a group of individuals but also sets out the primary beliefs which guide the followers of a specific religion. As a mark of objectivity and respect towards both religion and law, the courts often inquire about religious tenets and literature while gauging the essentiality of a practice. Therefore, the assessment of religious practices through the lens of scriptural evidence plays an instrumental role in the identifying of essential practices. Consequently, judging such matters on evidence or before the Court of Law has become a common practice among the courts.
Addressing this question was the stance of Hon’ble Mr. Justice Kurian Joseph in the landmark Triple Talaq verdict which confirmed and clarified that in matters pertaining to religion, sole reliance on the knowledge of those who claimed to be the ‘keepers of religion’ was not sufficient. Hence, it is a constitutional necessity that reliance is placed on these beliefs post careful scrutiny and not merely on the claims of the community. Therefore, one of the important factors which must be considered while ascertaining which practices are essential would be its explicit or implicit mention in the religious scriptures and tenets.
Test of fundamental change in religion
Every religion has a certain “set of beliefs and doctrines which are regarded by those who profess religion as being conducive to their spiritual well-being.” Some of these doctrines and beliefs are indispensable from the viewpoint of such religion. Essentiality, therefore, is only one of the elements which have to be taken into account while deciding whether a religious practice is indispensable from the viewpoint of the religion. Therefore, the significance can be judged by understanding the after effect of each of these practices upon the character of the religion itself. Thus, if the taking away of such practice directly impacts the very nature of the religion, it shall be considered as an integral or essential part of the religion.
Test of genuineness of beliefs
On various occasions, courts have also emphasized gauging the significance of religious practices which the followers associated with a particular religious practice. As put forth by Justice Mukherjea, “the main question does not lie in examining whether a particular religious belief or practice appeals to our reason or sentiment but whether the claimed belief is ‘genuinely’ and ‘conscientiously’ held to be a part of the profession or practice of any particular religion.” In case the claimed belief can be ascertained to have been preached conscientiously and genuinely by the followers of the religion, the practice can be said to qualify as an essential part of the religion. Hence, while assessing the genuineness of these claimed beliefs, the Supreme Court held these practices to be integral and essential to their religion. Therefore, the test of genuineness should also be given due regard while deciding the essentiality and integrality of such beliefs.
Test of nature of practice
While determining the essentiality of practice, it is also imperative to gauge the nature of the practice so as to reckon the nature of the practice and categorize the same as either obligatory or optional. For instance, the Supreme Court, in Acharya Jagdishwaranand Avadhuta and Ors. v. Commissioner of Police, held that the performance of the Tandava dance was not an integral or essential part of the petitioners’ religion owing to the fact that their religion did not mandate the performance of ‘Tandava Dance’ in public.
Extending the thread of reasoning, reliance is occasionally placed on the prestige and eminence of the place of worship and its role in that particular religion. Such places of worship are placed on a higher pedestal and ought to be treated “differently and more reverentially.” It is from this perspective that the Supreme Court declared mosque as not an essential part of Islam religion because Namaz could be offered from anywhere.
Limitations and challenges : the judiciary dilemma
Given the broad sphere of religion, the task of categorizing religious beliefs into essential or non-essential has not always been as simple as it seems to be. Not only do these beliefs form the core of the communities which follow them, but also symbolize a crucial aspect of their religion which has been a part and parcel for generations. Thus, the arduous task that comes up before the courts while handling such matters encompasses both identifications of such beliefs which were brought into existence in a completely different time period and weighing them against the practical needs of today’s society. While the court seems to have done an elaborative job by devising the above tests, it also needs to be understood that a blind application of the tests may not always provide us with an ideal solution to the issues that arise in the due course of time.
A stringent application of the principles established by the court may defy certain elementary features of religion which bind the people of a community together. For instance, confining the filtration of religious practices solely on the basis of scriptures could in fact result in violation of oral traditions of the followers. Oral traditions, though not written, have been accepted as a universal form of historical consciousness which also forms an intangible part of human culture. They could exist in the form of skills or sheer wisdom.
Confining the scope of essential religious practices has always been regarded as a threat to religious conscience. For example, by placing reliance on a Canadian judgment, the followers of Shri Shirur Matt, in their quest to protect their beliefs and practices in the case had also argued that “it was not for the Court to embark upon an inquiry into the asserted belief and judge its validity by merely some objective standard such as the source material upon which the claimant finds his belief or the orthodox teaching of the religion in question.” As acknowledged in S.P. Mittal v. Union of India, “what is a religion to some is pure dogma to others and what is a religion to others is pure superstition to some others.” A similar thread of reasoning was also used in the Sabarimala case, wherein it was contended by the followers that there existed no requirement for the beliefs of the petitioners to be logical or comprehensible to others who do not share them.
The way forward
It is true that the courts are often plagued with a series of issues while striking down practices or traditions relating to religion. Firstly, the fact that those practices or principles are irretrievably affixed to law makes it impossible to quash a portion without disturbing the entire scheme of law as such. Validating only some features and nullifying some other features may hamper the functioning of the entire religion. Secondly, such practices are deeply rooted in the religion and followers of that religion might feel distressed by the courts quashing their practices thereby causing turmoil in the society.
The growing interactions between religion and law have today evolved into one of the major clashes of the country that often finds itself knocking on the door of the courts. The human string which ties the two contrasting knots of law and religion together has, on multiple occasions, suffered in its attempt to strike a balance between the two. In order to attain what our forefathers had dreamt of, and to evade a situation of chaos, the Courts must strive to strike a balance between Law and Religion. Therefore, what emerges as the need of the hour is placing law and religion alongside and not against each other. Both the concepts must be redeemed from their conventional setting as mythological and scientific entities and be perceived as two primordial needs of the modern society thereby ensuring a cordial equation and a mutuality between the two which furthers the larger goal of ensuring harmony amongst its people.
- “The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shri Shirur Mutt, (1954) SCR 1005 (India)”, ¶ 20
- Hindu Marriage Act 1955, s 5.
- Kamesh, ‘Conditions for A Valid, Void and Voidable Hindu Marriage’ (legalservicesindia) < http://www.legalserviceindia.com/legal/article-1487-conditions-for-a-valid-void-and-viodable-hindu-marriage.html> accessed 27 February 2021”
- Legal Correspondent, “Hindu adoption not valid without consent from wife”, The Hindu (New Delhi, March 10 2020)
- Romit Agarwal, “Adoption: Under Hindu, Muslim, Christian And Parsi Laws – Requirements for a valid adoption” (legalservicesindia) “< http://www.legalserviceindia.com/articles/hmcp_adopt.htm>” accessed on 3rdMarch 2021
- Valentina Rita Scotti, The “Essential Practice of Religion” Doctrine in India and its application in Pakistan and Malaysia, Statochiese(Feb. 8, 2016), http://203/6783-Articolo-20292-1-10-20160208.pdf(last visited July 10, 2020).
- Rahul Unnikrishnan, The Supreme Court’s tryst with religious practices (Nov. 10, 2018) https://www.barandbench.com/columns/supreme-court-tryst-religious-practices(last visited March 29, 2021)
- Durgah Committee v. Syed Hussain Ali, AIR 1961 SC 1402 (India) [hereinafter Durgah Committee]; Sankarlinga Nadan v. Raja Rajeswara Dorai, (1908) 10 (Bom. L.R.) 781 (India).
- Del Henige, Oral, but oral what? The nomenclatures of orality and their implications, Oral Tradition, 34 -47 (1988).
- David Wilson, A study on Oral Tradition as a Communication Tool, 5 Int’l J. of res. In Economics and Soc.Sci.,118-124(2014) ; Zee Entertainment Enterprises v. Mr. Gajendra Singh, 2008 36 PTC 53 Bom. (India).
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