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Religion: The Tug Of War Between Liberty and Faith

Religion is a matter which lies solely between man & his God.- Thomas Jefferson

The term religion is not defined in the constitution and it is a term which is not susceptible of any precise definition. The supreme court has given it a wider content in Lakshmindra[1] that religion is a matter of faith with Individuals or communities and it is not merely theistic.

There are well known religions in India like Buddhist & Jainism which do not believe in god.

A Religion is a matter of faith. It is based on beliefs and doctrine which are regarded by those who profess that religion as conductive to their spiritual well-being but it is something more than mere doctrine of belief.

A religion may not only lay down a code of ethical rules for its followers to accept but may also prescribe rituals and observances, ceremonies and mode of worship which are regarded as Integral part of that religion. These forms may take up the matter of food & dress as well.

Certain practices even though regarded as religious may have sprung from merely superstitious belief and may in that sense be only extraneous and unessential accretion to religion itself. Such practices can be abrogated by state control. Thus, the norm that goes to essential of religion is protected, and not those which are merely secular or superstitious in nature[2].

The Preamble to the Constitution portrays the foundational principles: justice, liberty, equality and fraternity. While defining the content of these principles, the draftspersons laid out a broad canvass upon which the diversity of our society would be nurtured. Forty two years ago, the Constitution was amended to accommodate a specific reference to its secular fabric in the Preamble. Arguably, this was only a formal recognition of a concept which found expression in diverse facets, as they were crafted at the birth of the Constitution.

Secularism was not a new idea but a formal reiteration of what the Constitution always respected and accepted: the equality of all faiths.

Besides incorporating a specific reference to a secular republic, the Preamble divulges the position held by the framers on the interface of religion and the fundamental values of a constitutional order. The Constitution is not-as it could not have been-oblivious to religion. Religiosity has moved hearts and minds in the history of modern India. Hence, in defining the content of liberty, the Preamble has spoken of the liberty of thought, expression, belief, faith and worship.

While recognizing and protecting individual liberty, the Preamble underscores the importance of equality, both in terms of status and opportunity. Above all, it seeks to promote among all citizens fraternity which would assure the dignity of the individual[3].

Secularism:

India is a Pluralistic society and a country of religion. It is inhabited by people of many religions. The framers of constitution thus desired to Introduce the concept of secularism, meaning state neutrality in matter of religion. Since religion has been a volatile subject in India both before and after Independence.

The constitution therefore seeks to ensure state neutrality in this area. Secularism in India does not mean Irreligion. It means respect for all faith and religion. Religion tolerance and equal treatment for all religious group are essential parts of secularism.

The word secular has been made explicit by 42nd amendment act. The word Fraternity in preamble, equal rights to every citizen, freedom of religion to everyone , failure of motion to add IN NAME OF GOD instead of WE THE PEOPLE OF INDIA are evidence of the fact that the secularism has always been implicit in constitution.

In SR Bommai[4], apex court held that from point of view of state, the religion, faith or belief of a person are immaterial and any state government which pursue unsecular policies or unsecular course of action would be considered as contrary to constitution mandate and render itself amenable to state emergency under Article 356. Secularism is a basic structure of Indian constitution.

In United states of America[5], religious freedom is guaranteed by 1st amendment. The state is forbidden to pass a law respecting an establishment of religion as well as prohibiting free exercise of religion.

The teaching of Sanskrit language as an elective subject is not against the concept of secularism[6].
If the basic tenets of all religion are been taught, the secularism will not be endangered. Value based education will help the nation to fight against ill-will, violence, dishonesty, corruption[7].
Similarly, relocating the temple will not infringe article 25 and 26[8].


Custom, Usage & Personal Laws:

State of Bombay v. Narasu Appa Mali (Narasu),1952[9]
The court observed that the usage & custom are different from personal law thought the difference is unclear where former is law in force under Article 13 but latter is not law in force.
Gajendradakar, J observed that the term law in force do not include custom & usage because otherwise article 17 would become meaningless. Article 17 is an effect of custom & usage and thus law in force not to include custom & usage.

Even if law in force includes custom & usage but by no stretch of imagination it would include personal laws. The personal laws are in force generally and administered by courts in India but the term law in force meant not in general sense but with reference to statutory laws.

Indian young lawyers association, D.Y. Chandrachud[10],
The rationale adopted in Narasu to exclude personal laws from law are in force are not valid. Narasu case was decided on phraseology of section 112 of Government of India act, 1915 which provides courts to have original jurisdiction to decide disputes:
  1. If both parties are subject to some personal laws/custom then the same would follow
  2. If any of party subject to different personal laws/ custom then that of defendant would be applied.

Narasu[11] held that the constitution assembly knew about section 112 and they intentionally excluded personal laws from purview of Article 13.
The constitution assembly also had a legislative precedent of section 292 of Government of India act, 1935 which corresponds to Article 372.

The term law in force under Article 372 have the same meaning as was in section 292. The Interpretation of term Law in force under section 292 in case of United Provinces v. Mst Atiqa[12] begum held that would include not only statutory laws but also personal laws, customary laws and common laws.

The definition of term law and law in force are inclusive under Article 13[13].

Article 13 is similar to Draft Article 8 which included only law but in October 1948, the Drafting committee added law in force as well.
Custom, usages and personal laws have significant impact on civil rights and to immunize them from constitutional scrutiny would be to deny the primacy of constitution.

HM Seervai[14] : There is no difference between law and law in force. It is difficult to accept the fact that personal law is existing law where as custom, usage and statutory laws are law in force.

Narimnan, J in Shayra bano[15] has observed that:
Shariat law codified the triple talaq practice and thus shariat being a personal law squarely fall into Law in Force.

Hence, Narasu Judgment immunizing the Uncodified personal law from law in force require reconsideration.

Fundamental Rights: Article 25 and Article 26:

Article 25
Freedom of conscience and free profession, practice and propagation of religion:
  1. 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, practise and propagate religion
     
  2. Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
    1. regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
    2. 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 Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly

Article 26
Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right
  1. to establish and maintain institutions for religious and charitable purposes;
  2. to manage its own affairs in matters of religion;
  3. to own and acquire movable and immovable property; and
  4. to administer such property in accordance with law

Substantial Questions:

  1. Whether the term Morality is constitutional morality?
  2. Whether the term all persons include deity?
  3. What is the meaning of term equally entitled to?
  4. What is religion?
  5. What is the scope of state control under Article 25(2)(b)?
  6. Who are sections of Hindus under Article 25(2)(b)?
  7. What is the relation between Article 25 & 26 ?
  8. Do Article 25(2)(b) act as a Intermediary between Article 25(1) Individual rights and Article 26(b) Institutional rights ? Who is subject to whom?
  9. Should court be allowed to Interfere to decide what is essential religious practices?
  10. Do Majority have a right to establish their educational Institutions by virtue of Article 26?
  11. Do Article 25(2)(b) creates a substantive right in itself?
  12. Whether Article 26 can be subject to Part III through making it subject to Article 25(2)(b)?

Judicial Development:

  1. In Narihari shastri v. Shri Badrinath temple[1] (1952)
    Once it is proved/admitted that it is a place of public worship then all the rights to worship flow from nature of Institution only and no custom or usage need to be asserted or proved. Though Right to enter into place of worship is not an uregulated right which can be restricted by trustee of temple committee in good faith.
     
  2. In Commisioner, Hindu endowment , Madras v. Sri Laksmindra Trirtha swamiar of Shri Shirur mutt[2] (1954)
    • Sect is a division of larger religious group. Denomination means collection of Individual under same name.
    • Shri Shankra charya has started the practice of mutt where they teach religious lessons and learning. Post shankra charya, galaxy of religious teachers and philosophers adopted this practice of creating mutt to teach sect and sub sects of Hindu religion.
    • Each of sects and sub-sects can be religious denomination as it is designated by a distinctive name, different founder and common faith.
    • The term persons do not include corporate bodies. A Mithadipai is certainly not a corporate body but the spiritual fraternity and by virtue of its office , it has to perform duties of a religious teacher. It is the duty to practice and propagate the religious tenets to which he is adherent and If any provision of law prevents him from propagating his doctrine then that would certainly affect the religious freedom guaranteed to every person under Article 25.
    • It is the propagation of belief that is protected no matter whether it take place at church, monastery , temple or in a parlor meeting.
    • The administration of its property by a religious denomination has thus been placed on a different footing from right to manage its own affairs in matter of religion. The Latter is a Fundamental right which no legislature can take away whereas former can be regulated by law.
    • What constitute essential part of religion is primarily to be ascertained with regard to Doctrine of that religion itself.
    • Article 26(d), It is the fundamental right of a religious denomination or its representative to administer its properties in accordance with law and law therefore must leave the right of administration to religious denomination itself subject to such restrictions and regulations as it might choose to impose.
       
  3. In SP Mittal[3] (1982)
    For a religious denomination : It must take its colour from religion + 3 conditions:
    • Collection of Individuals who have a system of belief or doctrine which they regard as conductive to their spiritual well being. i.e. Common faith
    • Common organization
    • Distinctive name.
       
  4. In Rati lal panachand Gandhi v. state of Bombay (1954)[4]
    The Free exercise of religion by which it means the performance of outward acts in pursuance of religious belief.
     
  5. In Sri Venkataramana Devaru (1957)[5]
    • If we read Article 25(2)(b) subject to Article 26(b) then it will only solve matter at one hand but if we subject Article 26(b) to Article 25(2)(b) then It will strike a balance between Article 25(1) and Article 26(b).
    • The Object of Article 25(2)(b) is to give effect to both the rights under Article 25(1) as well as Article 26(b). If by giving effect to right of denomination under Article 26(b), the right of Individual under Article 25(1) is reduced then Article 26(b) would be read as subject to Article 25(2).
       
  6. In Durgah committee, Ajmer (1962)[6]
    It was held that since all people visit the place will not make it a religious denomination but the Chishtia sect would constitute as religious denomination.

    HM Seervai[7]: observed that the observation of Gajendra, J in Durgah committee is obiter because not in consistent to Judgment of 7 Judge bench in Shri mutt.
     
  7. In Sardar Syedna Saifuddin Saheb (1962)[8]
    The Limitation has imposed upon religious freedom by 3 saving words: health, Public order and morality are intended to validate only those laws which do not hit the essential religious practice because:
    1. To read the saving provision as covering even the basic essential practice would be to giving effect of nullity and render the entire guarantee as meaningless
    2. If the phrase social reform to be given so wider reading so as to cut the essential practices then there would have been no need to have the term throwing open of Hindu religious temples to all classes because law could have been justified on coverage of social reform.
    3. The word reform cannot be used to reform a religion out of existence or Identity.
    4. Just like Article 25(2)(a) limit the law interference upto economic, political etc. associated with religious practice. Similarly, Article 25 (2)(b) should also give effect only to those which are associated with religion. Just like Article 25(2)(a) cannot touch the essential religious practice so is Article 25(2)(b).
       
  8. In Tilkayat Shri Govindlaji Maharaj (1964)[9]
    The Test is the test of separating oil from water. What is essential is to be decided by followers of that community only. But this approach has its own problem in different cases.
    Foe example- whether practice of food/dress to deity of a particular religious denomination is an essential practice?
    Some will say white cloth is an integral practice while others will say yellow. Similarly, for food.
    And this will break the formula.

    To decide if a practice is religious or not, may create difficulty because secular and religious practices can be so mixed. This gets more complex in Hindu because in Smriti every matter from Birth till death is a religious.
     
  9. In Dr. Subramanian swamy v. state of Tamil nadu (2014[10])
    The object and purpose of enacting article 26 was to protect the rights of religious denomination or sect thereof and Article 26 cannot be made subject to Part III in any manner as limitation has been prescribed by law makers on Article 25 only.
     
  10. In Adi saiva sivachariyagal Sangam (2015)[11]
    Although what constitute a essential religious practice is to be decided by reference to a religious community only but the ultimate arbitrator is court only who can decide what constitute essential religious practice, which is a matter of constitutional necessity.
     
  11. In second Anand marg case[12]

What constitute essential religious practice has to be seen from reference to:
  • Tenets
  • Doctrines
  • History
  • Beliefs

Essential means one which is core and fundamental religion without which there will be no religion. The Test is if by exclusion of that practice, whether fundamental character of religion would be changed? No one can say that the essential practice has been changed from a date. Such a part can never said to be as essential.


Judicial Activism: Curse To Religious Faith?

The court imposes an external point of view as to what or what not constitute as essential religious practice. This is against the liberal values of constitution which recognize autonomy in matter of faith and belief. In a religiously pluralistic society, judges cannot presume to have judicial competence to have theological expertise over all religions.

Adjudicating religious freedom claims through definitional tests are often formalistic because court only select a particular set of criteria and make decision by ascertaining if religious belief fall into these criteria.

In doing so, court risk drawing an arbitrary line between protected and non protected religion, beliefs or practices.
  1. In Bijoe EmManuel v. state of kaerala[13]
    Held that the personal views of Judge are Irrelevant to decide what is religious belief or not.
     
  2. In Shayra Bano, Khehar CJI[14]
    It is not for court to determine whether a religious practice is prudent or progressive or regressive. Customs and personal laws must be perceived as it is accepted by its followers.
     
  3. Indian young lawyers association (Sabrimala), Indu Malthora, J[15]
    • Constitutional morality is ensuring pluralistic society by ensuring freedom of religion as per tenets. It is not for the court to see if such notions are rational or irrational.
    • Supreme court is not just a guardian of fundamental rights but also a balancing wheel between rights and social control.
    • There is no straight jacket formula but a working formula to decide if it is a religious denomination.
    • The proper forum to ascertain whether a sect constitutes a religious denomination or not would be more appropriately be decided by a civil court through leading evidences.
    • What is permitted by Article 25(2)(b) is a state made law and not judicial Intervention.

Conclusion:
Preamble states that people of India have four ultimate aims to achieve including Justice, Liberty, Equality, and Fraternity.

While upholding the Liberty of Individuals, the importance of Fraternity cannot be ignored otherwise the idea of achieving constitutionalism, the goal of egalitarian society, the concept of pluralism and the constitutional morality would remain a social distancing objective.

End-Notes:
  1. Manu/SC/0004/1952 :1952 SCR 849,
  2. Manu/SC/0136/1954 : 1954 SCR 1005.
  3. Manu/SC/0532/1982 : (1983) 1 SCC 51
  4. 1954 SCR 1055
  5. Manu/SC/0026/1957 : 1958 SCR 895
  6. Manu/SC/0063/1961 : (1962) 1 SCR 383,
  7. Supra
  8. Manu/SC/0072/1962 : 1962 Supp. (2) SCR 496
  9. Manu/SC/0028/1963 : (1964) 1 SCR 561,
  10. Manu/SC/0022/2014 : (2014) 5 SCC 75
  11. Manu/SC/1454/2015 : (2016) 2 SCC 725
  12. Commissioner of Police v. Acharya Jagadishwarananda Avadhuta (2004) 12 SCC 770
  13. (1986) 3 SCC 615
  14. 2017 SCC OnLine SC 963
  15. Supra
References:
  1. AIR 1954 SC 282, 290
  2. HH Srimad Perarumala, AIR 1972 SC 1586
  3. D r. D.Y. Chandrachud, Writ Petition (Civil) No. 373 of 2006
  4. AIR 1994 SC 1918
  5. Harry E Groves, Religious freedom, 4 JILI, 191 (1962)
  6. Santosh Kumar v. Secretary, Ministry of HRD, (1994) 6 SCC 579
  7. Aruna Roy v. UOI, (2002) 6 SCALE 408
  8. Akila v. The Government of Tamil Nadu, WP No. 30779 of 2008.
  9. Manu/MH/0040/1952 : AIR 1952 Bom 84
  10. Supra
  11. Supra
  12. Manu/FE/0003/1940 : AIR 1941 FC 16
  13. 107Shiva Rao, The Framing of India's Constitution, Vol III, at pages 520, 521. Draft Article 8 reads:
    1. All laws in force immediately before the commencement of this Constitution in
      the territory of India, in so far as they are inconsistent with the provisions of this Part,
      shall, to the extent of such inconsistency, be void.
    2. The State shall not make any law which takes away or abridges the rights conferred
      by this Part and any law made in contravention of this Clause shall, to the extent of the
      contravention, be void:
      *Provided that nothing in this Clause shall prevent the State from making any law for
      the removal of any inequality, disparity, disadvantage or discrimination arising out of
      any existing law.
    3. In this article, the expression "law" includes any ordinance, order, bye-law, rule,
      Regulation, notification, custom or usage having the force of law in the territory of
      India or any part the
  14. H.M. Seervai, Constitutional Law of India, Vol. I
  15. Writ Petition (C) No. 118 of 2016
The author is a Practicing company secretary and founder of Budhiraja & co. He is a Final Year Law student at faculty of law, University of Delhi besides associated as Para Legal volunteer with Delhi State Legal Service authority and core member of moot court society of its college.
Ph no: +919654055315, Email: [email protected]
https://www.linkedin.com/in/shubham-budhiraja-555963a1/

Disclaimer:
The views and opinions expressed in this article are those of the authors and do not necessarily reflect the official policy or position of any agency of the Indian government. Examples of analysis performed within this article are only examples. They should not be utilized in real-world analytic products as they are based only on very limited and dated open source information. Assumptions made within the analysis are not reflective of the position of any Indian government State. 

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