This article is written by Shubhank Suman and Sakshi Rathi. In this article, they aim to highlight the interference of the Indian Judiciary in religious matters.

Introduction

Freedom of conscience and the right to freely profess, practice and propagate religion is one of our fundamental rights guaranteed by the constitution of India under Article 25. [1] This article of the Indian constitution provides religious freedom to all of its people and provides them rights to: 

1. establish and maintain institutions for religious and charitable purposes; 
2. to manage its affairs in matters of religion; 
3. to own and acquire movable and immovable property; and
4. to administer such property in accordance with the law.

However, in recent days the freedom of religion has been infringed a lot by judicial interference that led to a series of litigation and arose a new question before the judiciary, i.e, how far is it correct to apply judicial mind and constitutional adjudication in the matter of religion by the courts?

Judicial Interference

The judgment of the Supreme Court in the matter of Sabarimala temple, Indian Young Lawyers Association & Ors. V. The State of Kerala & Ors [2] is the typical instance of interference of the judiciary in the matter of faith and beliefs. This was the case in which five-judge bench of the Supreme court with the ratio of 4:1 lifted the ban from religious customs of Ayyappa Temple, on the ground of untouchability and violation of article 14 [3] as it prevented women of age group between 10 to 50 from entering into the temple. 

Here, if we look into the tradition of the temple then we will find that excluding certain sections of women from entering into the temple has nothing to do with untouchability. Lord Ayappa, who is worshipped in that temple is considered as a lord because he practised celibacy, his determination of being distanced from women brought him the stature of a God. 

Women, who revered him voluntarily forbade themselves to approach the temple as it would be equal to disrespecting his principles. Staying far from him is the absolute faith for women. [4] If we considered the argument of K.Parasaran who clearly said that:

“Religious beliefs cannot be tested on the touchstone of Art. 14 or rationality. The right to equality in religious matters has to be adjudged amongst worshippers. To recognise marked differences that exist in fact is living law, to disregard practical differences and concentrate on some abstract identities is lifeless logic. Like ‘manifest arbitrariness’, ‘constitutional morality’ is totally subjective and would itself be arbitrary.”

This argument was also supported by the only dissenting judge of the case, Justice Indu Malhotra. She has used various cases from the United States to support the view that the court must not interfere with religious matters. She mentioned the First Amendment of the US Constitution that states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government, for a redress of grievances.” 

She states, “the Free Exercise Clause in the definition that constitutionally allows people to profess their religion without any restriction is what concerns us the most”. In the dissenting judgment, Justice Malhotra also pointed out that the tradition of exclusion of women was not challenged by any woman or believer but by busybodies who did not claim to be believers of Lord Ayappa. Hence, the locus is not as technical as those who approached the court were not worshippers but only keen to defy the tradition. She feared that such types of claims in religious matters would open the floodgates for non-believers to challenge each and every religious practice. Justice Malhotra concluded her judgment by saying: [5]

“what constitutes an essential religious practice is for the religious community to decide’ and not a matter that should be decided by the courts Furthermore, she said that ‘notions of rationality cannot be invoked in matters of religion by courts Moreover, ‘Religious customs and practices cannot be solely tested on the touchstone of Article 14 and the principles of rationality embedded therein”. [6]

Similarly, if we take other instances of judicial intervention in the matter of religious affairs then the case of Sunita Tiwari vs Union of India and Ors [7] is another finest example. This was the case in which genital mutilation of females among Dawoodi Bohras was questioned before the Supreme Court under Article 32 [8] contending that the said practices are in violation of UN Convention on the Rights of the Child and Article 21 [9]that defines the right to life and personal liberty. The matter was referred to the larger bench, however, just like the case of Sabarimala in this case, the petitioner also did not have any personal interest in the remedy. In the case of Nikhil Soni V. Union of India [10], Rajasthan High Court declared the Jain process of achieving salvation i.e. The Santhara illegal and declared it as equal to suicide. [11] This created lots of hue and cry in the Jain society and considered to be the encroachment of one’s religion. Later the judgment was appealed in The Apex Court that reversed down the judgment.

These cases incited a new debate whether it’s the right time for the Indian judiciary to develop Doctrine of Religious Questions just on the same line of Doctrine of Political Questions? Should religious practices leave to be decided by the head of the section of the religious group and judiciary should not involve themselves in it?

If we consider the first question in the present scenario, then it is not possible for the judiciary to develop the doctrine of a religious question in a country where a number of religions coexist and also religion itself a vague concept and if we consider the second question that religious matter should be left to be decided by the head of religious group only then also it is not possible as it’s difficult for the judiciary to left all the religious matter to be decided by concerned religion among themselves because some traditions are evil in nature and if the judiciary does not involve in it then it will create more chaos and problems for the society. The only solution for this is that the court should not intervene in any religious matters just to resolve any hullabaloo. The court should restrict itself to only find out whether the particular customs exist or not. The court should not go to check the veracity of those customs. It should be concerned only to provide protection to the beliefs that people considered integral to their religion. The case of States v. Ballard [12] that defines ‘Doctrine of Religious Questions’ in the USA clearly states that.

“Judicial intervention into religious questions is similar to the doctrine of a political question, wherein, it can be understood that just like it is expected that political branches are more apposite to decide the political question, religious bodies are more suitable to decide questions about religion”. [13]

The court is basically ignorant of the historical beliefs and the reasoning behind it hence they apply the judicial mind to check the veracity of faiths and beliefs because of which their interpretation is different from the beliefs of devotees. The court has to understand that they are ill-equipped to deal with religious beliefs and practices because of remoteness and lack of familiarity hence should only interfere when any practices seriously damage the constitutional fabric. In the case of Commissioner, Hindu Religious Endowments, Madras v. LakshmindraThirtha Swamiar of Sri Shirur Mutt [14] Supreme Court developed the concept of “Doctrine of Essentiality” in order to test whether such practice is integral to the religion or not and if the court is satisfied that the practice is not integral to the religion then only it supervenes.

We can take the reference of M. H. Qureshi v. State of Bihar [15] where banning of cow slaughtering by the Govt is challenged on the ground of violation of freedom of religion as it prevents them from slaughtering a cow on Bakra-eid. The court, in this case, used the Doctrine of Essentiality and held that slaughtering of a cow is not mandatory as per Quran hence practice cannot be considered as an integral part of Islam. Similarly, in the case of Masud Alam V Commissioner Of Police [16], the neighbours of the mosque protested against the use of loudspeakers for Azan. It was contended by the defence that using loudspeakers for Azan is an essential practice for Muslims but the court did not agree with the contention and held “What is distasteful and abhorrent in the house of man is singularly inappropriate and even irrelevant when used in the House of God. Prayer is intended to be a silent communion with the Creator. It does not call for a tumultuous prelude or a noisy accompaniment.” [17]

However, these days courts overlook this Doctrine of essential practice and interfere in the matter which is considered to be integral to religion. [18] That raised numerous concerns for the judiciary and society.

Concerns

• While dealing with religious matters court Clubs numerous cases which have been filed for the same issues this creates lots of problems in the society as remedies sought in each case are usually different hence uniform verdict will give rise to religious conflicts.
• The General practice of transferring the issue to the larger bench while dealing with a religious question is also an important concern for the judiciary as it not only wastes lots of time but also narrows down the scope for justice.
• In order to deal with religious matters, the court has to define constitutional morality and question its limit and boundaries so that it won’t come in clash with religious beliefs and faith.
• The court in the most religious matters has been inconsistent in applying essential practice doctrine which has created lots of resentment in common people against the judiciary as they considered it as circumscription of their freedoms to practice and profess their religion. [19]

Conclusion

The majority decision of the Apex Court in the celebrated case of Sabarimala has rewritten the constitutional exemption on freedom of equality, religion, and untouchability, contrary to the dissenting judgment of Justice Indu Malhotra. Hence Regarding the question of judicial interference in religious matters, the judgement of Justice Malhotra should be used as a guiding force who has rightly asserted that even though religious practices and beliefs are not considered as rational by everyone, constitutional protection should not be denied to them. By analyzing a series of cases, it is quite clear that the court cannot intervene in religious matters if it involves a question of ‘essential practice’ associated with a particular religion. Here, in the above cases, all the traditions in which the Court interfered was an integral part of the religion as we saw Sabarimala where the restriction on the entry of women in the temple was an ‘essential practice’ in relation to the prayer. These cases created more unrest in society than settling disputes.

Hence, Each of such cases must be reviewed on their own ground through diverse redressal mechanisms and on the question of essential religious practice, Supreme Court should go case by case rather than clubbing several cases together. Moreover, the court has not been consistent in applying the Doctrine of essential religious practices which further led to ambiguity. Therefore, some guidelines must be issued by the court to categorize essential religious practices. Recognition of essential practice does not mean here evil tradition like Sati Pratha or Johar should be allowed, those were evil tactics and were harmful to the constitutional fabric hence court must not interfere into the religious matter until and unless it seriously affects the basic fabric of the constitution.

In the judgement of Sabarimala Even though Justice Malhotra struck the balance in support of religious freedom but this could have been better if she considered it in the context of public morality rather than constitutional morality, to reach a different conclusion as India is a country where everything is governed by morals and values.

References

[1] Article 25, Constitution Of India.

[2] WP (C) No. 373, 2006.

[3] Article 14, Constitution Of India.

[4] ‘Sabarimala Temple Archives | SCC Blog’ <https://www.scconline.com/blog/post/tag/sabarimala-temple/- https://www.scconline.com/blog/post/tag/sabarimala-temple> accessed 1 April 2020.

[5] ‘The Court and Matters of Faith’ (The New Indian Express) <https://www.newindianexpress.com/opinions/2018/nov/16/the-court-and-matters-of-faith-1898797.html>accessed 1 April 2020.

[6] ‘Judiciary Must Not Interfere in Matter of Religious Faith and Sentiment: Justice Indu Malhotra | India News- Times of India’ <https://timesofindia.indiatimes.com/india/judiciary-must-not-interfere-in-matter-of-religious-faith-sentiment-justice-indu-malhotra/articleshow/65997571.cms> accessed 13 April 2020.

[7] 2016) 2 SCC 725.

[8] Article 32, Constitution Of India.

[9] Article 21, Constitution Of India

[10] WP (C) No. 7414, 2006.

[11] ‘Intervention of Supreme Court in Religious Matters: A Debate Against the Motion’ (The Law Blog, 31 March 2019) <https://thelawblog.in/2019/03/31/intervention-of-supreme-court-in-religious-matters-a-debate-against-the-motion/> accessed 1 April 2020.

[12] 322 U.S. 78 (1944).

[13] ‘The Court and Matters of Faith’ (n 5).

[14] CP Bhambhri, ‘Indian Judiciary and Freedom of Religion’ (1964) 25 The Indian Journal of Political Science 241.

[15] 1954 AIR 282.

[16] AIR 1956 Cal 9.

[17] CP Bhambhri, ‘Indian Judiciary and Freedom of Religion’ (1964) 25 The Indian Journal of Political Science 241 <https://www.jstor.org/stable/41854036> accessed 9 April 2020.

[18] 1958 AIR 731.

[19] ‘Supreme Court on Religious Practices’ (Drishti IAS)<https://www.drishtiias.com/daily-updates/daily-news-editorials/supreme-court-on-religious-practices> accessed 9 April 2020.