This article is written by Tarannum Vashisht, a student of Rajiv Gandhi National University of Law, Punjab. This article seeks to elucidate the essentiality doctrine of the right to religion and its interface with article 13 of the Constitution of India.
26th of January 1950, witnessed the coming into force of the Constitution of India, after a long and strenuous battle against the British empire. This was a sincere attempt at the unification of different cultural and religious groups under the umbrella of secularism and freeing them from the Hindu caste system.
Therefore, the fundamental right of freedom of religion acquires a very significant role in Indian jurisprudence. However, it is also to be noted that one person’s expression of his freedom of religion should not infringe on someone else’s right. Henceforth, it has to be made definite that which of the religious practices are essential to religion.
So that when a case has to be decided where different fundamental rights take two different sides, the court can efficiently strike a balance between the two.
Article 13 lays down the supremacy of the Constitution, making it clear that in case of conflict between fundamental rights and any other right, the former would prevail. It also gives clarity on the validity of pre-constitutional and post-constitutional laws.
This article deals with essential religious practices within the scope of article 13 of the Constitution of India, trying to strike a balance between various competing components of the two.
Article 13 of the Constitution of India
Article 13 of the Constitution of India is divided into three clauses, establishing the supremacy of Fundamental rights. They also elaborate upon the pre-constitutional and post-constitutional laws. Following are the essentials of the article-
This clause deals with the existing laws or the laws that were formulated and enacted before the commencement of the Constitution. The provisions of this article make it unambiguous that laws existing before the commencement of the Constitution are valid only to the extent that they don’t contravene the fundamental rights provided in part 3 of the Constitution.
The following doctrines have been interpreted form this clause-
No Retrospective Effect
This doctrine makes it clear that Fundamental rights only have a prospective effect, that is, can be applied after the commencement of the Constitution and not to events preceding it.
Rule Of Severability
Article 13 does not make an entire law inoperative, only the part that is in contravention to the fundamental rights. The application of this doctrine is possible only where the two or more parts of the legislation are severable, that is, they can be detached from one another and still have a self- sufficient meaning. Therefore, If one of the parts of a law, which is severable from the rest, is in contravention to the fundamental right, that law is invalid only to the extent of that part and not the whole law.
Doctrine Of Eclipse
This doctrine states that a law that is inconsistent with the fundamental rights, does not seize to exist, rather it becomes dormant. This means that such an inconsistent law does not become inoperative. With an amendment in the fundamental rights, these rules can again become active.
The second clause addresses future laws. It prohibits the state from enacting any future laws which are in contravention to the fundamental rights.
Clause 3 defines the terms “ law” and “law in force”. This clause states that the term law under this article encompasses any order, regulation, custom, usage, bye-law, notification, etc, which has the force of law in India. On the other hand, “Law in force” includes all laws which were made by the legislature of the country or any other competent authority, before the commencement of the Constitution of India, which has not been repealed since. This is notwithstanding the fact that this law may not be in force in some particular areas.
What are Essential Religious Practices?
To define the essential elements of religion, the supreme court of India laid down the “essential element of religion” doctrine. Before this, the supreme court had to define what exactly is religion, resolve the appeals against the legislations which were labelled as controlling religious institutions, and delimit the boundaries of religious institutions.
In the Commissioner, Hindu Religious Endowments, Madras vs. Shr iLakshmindar Tirtha Swamiyar of Shri Shirur Mutt case, a line was drawn between what were matters concerning religion and what was not. It was laid down that religious opinions and the acts done in pursuance of those opinions, are religious practices. This implies that the supreme court has said that the rituals, modes of worship, and ceremonies all come under essential practices of religion. These have to be protected to the extent that they are within the limits of Articles 25 and 26 of the Constitution of India.
Interface of Essential Religious Practices with Article 13
It may appear confusing, as to why the topics of essential religious practices and Article 13 are being talked about together. Scrutinizing these concepts deeply, clause three of article 13 comes into the picture. Clause 3 talks about “laws” and “laws in force”, which have already been explained. Laws in force are those laws that are passed by a legislative body or any other competent authority, if that is true, the uncodified personal laws do not fall within this domain.
Following this logic, the personal laws of any religion do not fall under “laws in force” as provided under clause three of article 13. Therefore, according to what is written in article 13, we conclude that personal law even if in contravention to the fundamental rights are not void, as they do not fall under any clause of article 13.
Whether personal laws and other essential practices of a religion, come under the ambit of article 13, has remained a bone of contention for years. This most recently came into limelight with the Sabarimala issue, which has been clubbed with other cases dealing with similar contentions, which would be discussed in the following paragraphs. The final answer to this archaic question is still awaited.
Detailed Analysis of Essential Legal Practices by the Indian Judiciary
The Indian judiciary in several judgements, defined and elaborated on various aspects of essential religious practices. The following are some of the important cases of the Supreme Court of India, elucidating on this arena.
In the case of Sri Venkataramana Devaru v. State of Mysore, the essential practice doctrine was again made relevant. In this case, the question was regarding whether the exclusion of some people outside Hindu temples was an essential religious practice. In this case, the archaic holy scriptures were examined by the bench to examine which practices formed an essential part of religion and which did not.
For the bench, it was a tough decision on which article amongst Articles 17 and 25 of the Constitution should prevail. After examining the practices which were essential for Hinduism, the court gave the verdict that the temple was to be open for all Hindus. However, it was noted that the puranic literature evidenced that some ceremonies were to be carried out only by a certain class of worshipers. The court took upon itself to chalk out these ceremonies, where the privilege of the selection of worshipers was given to the brahmins of the temple.
In Jagadishwaranand v. Police Commissioner, Calcutta, religious denomination status was granted to the Ananda Margis community. However, ‘tandav’, which is the native dance of this community was not recognised as an essential element. This decision of the Supreme Court of India generated a lot of debate in India. So much so that the high court of Calcutta requested the apex court to reconsider its decision.
In Commissioner of Police vs. Acharya J. Avadhuta, the question of recognizing the Tandav as an essential part of religion arose again before the supreme court of India. The majority believed that since this dance form did not form the core of that religion, it cannot be accounted for as an essential religious practice. However, the minority was of the view that, if a practice is treated by the followers as of utmost importance to achieve spiritual upliftment, then it is an essential religious practice. Following this logic, tandav was an essential religious practice.
It is pertinent to note here that in all these above-mentioned cases, this step of the Supreme court of examining the religious scriptures, rather than examining this in a strictly constitutional sense, points to the religious connotation of this step. This examination in itself points to the fact that since the laws about this were not framed by a legislature or any other competent authority, they in no way come under “laws in force” under article 13. Hence, even if it is contended that they are against the fundamental rights, there is no provision in the Constitution or any other law of the country which makes it invalid.
In Bramchair Sidheswar Bhai vs. State of West Bengal, The court was of the view that for the Ramakrishna Mission, the establishment of educational institutions was not vital. This according to the court was not an essential legal practice, the same was decided for the selection of the head of this educational institution. This is how the state could intervene in the functioning of these institutions. Many regard it as an attempt of the court to magnify the influence of the state in these institutions.
In A.S. Narayana Deekshitulu v. State of Andhra Pradesh, following the same reasoning, the supreme court decided that appointment of the head of a Hindu temple on the hereditary basis was not an essential religious practice, and the court could intervene. A similar view was adopted in Pannalal Bansilal Patil v. The State of A.P. Here the court ascribed administering of religious institutions not as a religious activity, but as a secular activity.
This is where the reasoning and the perspective of the Supreme court saw a marked change.
Now let’s come to the most recent and talk about the case of the country, the Indian Young Lawyers Association v. State of Kerala (Sabrimala Temple Case). The Supreme Court, via its seven-judge bench, has clubbed three more cases related to the rights of religion. The court in its order attempted to strike a balance between the two fundamental rights of the right to equality and the right to freedom of religion. Let’s look at all these cases.
The brief facts of the case are that women between the age bracket of 10 to 50 years were not allowed to enter the Ayyappa temple. This was because they are menstruating women, and the deity revered at this shrine, Ayyappa, is a celibate. It was held by a five-judge bench of the Supreme Court, by a 4:1 ratio that this archaic practice was unconstitutional and illegal.
Entry Of Muslim Women Into Mosque
In 2019, the doors of the supreme court were knocked by some Muslim women, who wished to get the right to enter mosques. It was contended that this practice was both derogatory to women and an abrogation of the fundamental rights.
The Tale of Female Genital Mutilation Among Dawoodi Bohras
This is a 2018 case, Sunita Tiwari vs. Union of India and Ors, which was referred to a larger bench of the Supreme court. The facts of this case are that all females of Dawoodi Bohra Community were made to mandatorily go through general mutilation, which was called ‘khatna’ or ‘khafd’. The petitioner challenged the constitutional validity of this process, via a writ petition brought under Article 32. It was urged that this mandatory mutilation was against Article 21 of the Constitution.
The entry of Parsi Women, not married to Parsis into Agyari
This case arose out of a special leave petition filed before the supreme court of India against the judgement of the Gujarat High Court in the case of Goolrukh Gupta v. Burjur Pardiwala. The petitioner, along with her friend was denied entry into the tower of silence, a religious institution of the Parsi community after they were married to Hindu husbands.
The issue was that did marriage of a girl into a family of some other religion mean an automatic conversion of that girl into that religion. In 2017, the Supreme Court pronounced that by marrying a person of some other religion, the girl doesn’t surrender her father’s religion.
The review petitions on the Sabarimala judgement and these other three judgements, are to be clubbed with these pending cases of utmost constitutional significance. The decision for the same is still awaited. However, this clubbing of cases has come under strict scrutiny at the behest of many intellectuals. The point that these religious practices cannot come under the domain again arose, via this decision of the Supreme Court of India. The final clarification and decision of the supreme court on this issue are still awaited.
There is no clarity in the Constitution concerning what amounts to essential legal practice. The Indian judiciary has responsibly taken upon itself the task to ascertain the different aspects of this essentiality. Looking at the plethora of judgments, we can conclude that multiple aspects of the essentiality doctrine have been established by the Indian judiciary. However, one of the major decisions, that is regarding the Sabarimala issue, combined with others, is still impending. It is hoped that this issue would provide much-needed clarity on the intersection of essential legal practices and article 13 of the Constitution of India.
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