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This article is written by Shivam Garg, from Faculty of Law, Aligarh Muslim University.

Article 25 and 26, Essential Religious Practice Test

Part III of the Constitution of India, the chapter on Fundamental Rights encompasses the rights to (i) Equality (Articles 14 to 18); (ii) Freedom (Articles 19 to 24); (iii) Freedom of religion (Articles 25 to 28); (iv) Cultural and educational rights (Articles 29 and 30); and (v) Constitutional remedies (Article 32). Our Constitution along with rights to equality, life and liberty provide freedom of religion as an indispensable fundamental right. The preamble of our Constitution which sets forth and provides broad sweep to its content also secures to all its citizens the “liberty of belief, faith and worship.” The Indian Constitution recognizes the felt need of our multi-religious society and respects the old age traditions of religious people; it purposes to establish a secular, social order and to permit free exercise of religion within the framework of the constitution. The operation of religious freedom in India has a direct bearing on the establishment of the secular polity and the modernization of society and often cases of religious freedom involve conflict between the old age traditions and the evolving fundamental civil rights of an individual, and raise a serious problem which the Constitutional Courts have to solve.

Article 25(1) of our constitution guarantees every person, citizen or non-citizen, the “freedom of conscience” and right freely to “profess, practice and propagate religion” but these rights are not absolute and are made subjected to public order, health, morality and other provisions of Part III. While Article 25 confers the particular rights on all persons, Article 26 gives special protection to religious denominations. Article 26(b) provides that every religious denomination or a section has the right to manage its own affairs in matters of religion.  However, rights under Article 26 are subject to public order, morality and health but unlike Article 25 not to the other provisions of Part III.  Though the term ‘religion’ has not been defined in our constitution, the Hon’ble Supreme Court many a time has widely interpreted this term. In The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt[1] it was held that ‘religion’ is a matter of faith which has its basis in a system of beliefs and doctrines. The religion may not only lay down a code of ethical rules for its followers but also prescribe rituals and observances, ceremonies and modes of worship which are regarded as an integral part of that religion. Thus, the constitution also extends protection to such practices which are essential and integral parts of a religion. However, in Durgah Committee, Ajmer v. Syed Hussain Ali[2], J. Gajendragadkar in a “note of caution” observed that there may be practices which are religious but may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Therefore, to decide what practices are essential and integral parts of a religion, this Court rather allowing the religious denomination ‘complete autonomy’ has entrusted the task of scrutinizing such practices in the light of scriptures and precedents of such religion to itself.[3]

In Commissioner of Police v. Acharya Jagdishwarananda Avadhuta[4], the majority held:

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Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part.

Further, the Court held that there cannot be any alteration to such part as it may be the very essence of that religion and will change its fundamental character. It is such permanent essential parts which are protected by the constitution. Therefore, such practices are saved under Article 25 and 26 of our Constitution.
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Essential Religious Practice and Constitutional Values

Now the question arises whether these essential practices can be allowed to transgress the constitutional values? The answer to this question is negative. Article 26, though may not be subjected to other freedoms provided under Part III expressly, cannot exist as a discrete element divorced from other freedoms. Freedom of religious denomination or protection to essential religious practices under Article 26 must be read in a manner which equally preserves individual freedom which may be impacted by its unrestrained exercise. In Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors.[5], J. Chandrachud dealing with this question observed that it is the duty of the court to ensure that what is protected as the essentiality of practice is in the conformity with the fundamental constitutional values. While the Constitution is solicitous in its protection of religious freedom as well as denominational rights, it must be understood that dignity, liberty and equality constitute the trinity which defines the faith of the Constitution. Together, these three values combine to define a constitutional order of priorities.[6] Therefore, the exclusion of women from religious worship, though founded in religious text and proved to be an ‘essential religious practice’ under Article 25 and Article 26,  is subordinate to the constitutional values of Liberty, Dignity and Equality.

In a country like India, which is a multi-religious society and of which religion is indispensable part, there may be various practices in a religion discriminatory to either women or men but are well embodied in scriptures of that religion and abrogation of which may change its fundamental character. Such practices though discriminatory may not always transgress the constitutional values as not all types of discrimination hamper it. Discrimination based upon intelligible differentia and rational nexus is very well protected under Article 14. Therefore, the answer to the question, whether all practices in all faith which are discriminatory to either man or woman will be declared as contrary to the constitutional values and will be made penal offences, is in negative. The court, in individual case, should enquire whether a particular discriminatory practice either to man or woman is an essential religious practice. If the answer to the first question is in positive the enquiry must move further whether such practice transgresses any fundamental constitutional values. Once the court is satisfied that a practice though discriminatory is an essential religious practice and does not transgress any fundamental constitutional values, such practice need not to be interfered with. 

However, the above-stated position may or may not be considered as final since in Kantaru Rajeevaru v. Indian Young Lawyers Association Thr. its General Secretary and Ors.[7], or Sabrimala’s review petition, the 5 judge bench with the majority of 3:2 has referred to bench of nine judges certain questions concerning the freedom of religion under Article 25 and 26 of the Constitution of India. These questions relate to the interplay between freedom of religion and other fundamental rights, ascertainment of the sweep of terms such as ‘public order, morality and health’, definition or scope of terms like ‘morality’ and ‘constitutional morality’, the extent of judicial review in the matters of faith, extent of the protection of “essential religious practices” to a religious denomination or to a non-denominational section and lastly the locus-standi of non-believer through PIL to question religious practices of a denomination or a section to which he does not belong. Therefore the question whether a discriminatory essential religious practice must also qualify the test of constitutional morality in order to get the constitutional protection is still an open question of law.

This reference to the larger bench is due to the no conclusive definition or the scope of broader terms such as ‘essential religious practices’ and ‘constitutional morality’. Analysis of various judgments shows no uniform application of ‘essential religious practice test’ which is now made subject to another test of ‘constitutional morality’ of which also the contours are not defined in the constitution. The effect of which is that the concept of ‘Constitutional Morality’ was invoked by two different judges of the same bench in Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors.[8] to arrive at opposite conclusions. Therefore, the contours of such broad terms are required to be defined lest they become subjective. Further, the questions are often raised about subjecting the customs or practices traditionally followed by religious denominations to the tests in addition to what is being provided in the constitution under Article 25 and 26. The conclusive adjudication over these issues is still awaited since the matter is pending before the Apex Court. Once these issues are finally decided by the Supreme Court, the fate of other discriminatory religious practices such as the ban on entry of Muslim Women in Durgah/Mosque and the Parsi Women married to a non-Parsi into the holy fireplace of an Agyari and of the practice of female genital mutilation in Dawoodi Bohra community will be decided accordingly.    

[1] (1954) SCR 1005 (India).

[2] (1962) 1 SCR 383 (India).

[3] Sri Venkataramana Devaru v State of Mysore, (1958) SCR 895 (India).

[4] (2004) 12 SCC 770 (India).

[5] 2018 SCC online SC 1690(India).

[6] Supra note 5.

[7] Review Petition (Civil), 3358 of 2018.

[8] 2018 SCC online SC 1690(India).

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