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Evolution Of Judgments With Regard To Religious Controversies Dealt By The Indian Courts: Article 25 And 26 Of The India Constitution

The makers of the Indian Constitution envisioned a model of secular political system that under social welfare state will protect all religions while progressing towards the enhancement of human dignity. The framers of the Constitution intended to make India a secular state and hence, respected all religions and established Article 25 and 26 which gave the citizens the right and freedom to profess their respective religion and faith.

However, the right envisaged under Article 25 and 26 tend to violate some of the other basic fundamental rights of the citizens. This research paper makes attempt to highlight how while interpreting Article 25 and 26, the judiciary have historically adopted the bare text approach which has lead to a restrictive approach and tend to leave a bad precedent. Further, we will be going through various judgements to understand the reasoning behind the judiciary while interpreting issues relating to the constitutional validity of religious practices.

Evolution of the interpretation of Personal laws by Courts

The famous judgement of the Narasu Appa Mali case cast its shadow on other courts with its interpretation of Article 13 and Personal laws. In this case, the learned Chief Justice of the Bombay High Court, Chief Justice M.C. Chagla held that personal laws are outside the purview of Article 13 and hence, the courts have no jurisdiction to interfere with personal laws.[1]

The Chief Justice drew a distinction between personal laws and customary laws and stated that Article 13 (3) (a) while defining law, does not include Personal laws. Further, the learned Chief Justice gave Article 13 (3)(b) a very narrow interpretation by ignoring the word includes which in the normal course, should have given the sub section a much broader interpretation.

The learned Chief Justice also stated that if the intention of the legislators was to include personal laws in Article 13, they would not provide a separate Article for untouchability (Article 17). It was also held that personal laws are not an outcome of the legislature and hence, it cannot be included in Article 13(3)(b). This judgement of the Bombay High Court acted as a precedent to many other judgements having similar issues related to personal laws.[2]

However, the Kerala High Court refused to accept the judgement of the Bombay High Court. It was held by the Hon'ble Kerala High Court that personal laws in itself are laws and they get their validity by the virtue of the sovereign and hence, they are enforceable by a court of law.[3]

To strengthen the arguments of these courts rejecting the judgement of the Narasu Appa Mali case, this research paper would focus on the word includes through a judgement. In P. Kasilingam v. PSG College of technology, it was held that the word includes is used in a definition to give it an inclusive nature and not an exhaustive one and hence, it should mean that the definition would also cover categories which are not expressly mentioned in that particular definition.[4] Therefore, respectfully, we would disagree with the narrow interpretation given to Article 13 (3)(a) in the Narasu Appa Mali case.

Some courts had a different interpretation as to whether the courts could interfere with cases with respect to personal laws. It was held in Commissioner, Hindu religious endowments, Madras v. Shri L.T Swamiar of Shirur Mutt that what may be associated with a religion but not an essential religious practice of that particular religion can be amendable by the state.[5]

Further, what constitutes to be an essential part of a religion is to be primarily decided by the doctrines of that religion itself.[6] It is this judgement which gave rise to the 'Doctrine of Essentiality' which was used in the judgements of Sabarimala and Triple Talaq.

Doctrine of Essentiality

The doctrine of essentiality is a doctrine evolved by the courts to protect only those religious practices which are essential and integral to that particular religion. This Doctrine was established by the Supreme Court in the Shirur Mutt case by a 7 Judge bench.[7] It was held that the right to freedom of religion not only protects the beliefs and ideas of a religion but also protects the rituals and practices integral to a religion.

According to this doctrine, whenever an issue pertaining to religious practices arises, the court will have to go to the holy script of that particular religion and ascertain what the holy book interprets it as. The courts will be able to amend the alleged religious practice only if it can be ascertained from the holy books that the alleged practice does not constitute to be an essential or integral religious practice.

Current interpretation of personal laws

Sabarimala Judgement

In 2018, a Writ Petition was filed against the practice of exclusion of women from the Sabarimala Temple. The Constitution validity of this practiced was challenged in the Supreme Court. C.J Dipak Misra, J. Khanwilkar, J. Nariman and J. Chandrachud formed the majority opinion and held that the alleged practice of the exclusion of women from the Sabrimala temple was unconstitutional as it violated Article 15(2) of the Indian Constitution.[8] Following was the hierarchical reasoning of the majority opinion.
  1. It was asserted that there was an absence of common religious tenets which were peculiar to themselves (worshippers of Lord Ayappa), which they regard as conducive to their spiritual well- being other than those which were of the Hindu religions. Hence, the worshipers of Lord Ayappa did not constitute to be a separate religious denomination but were actually Hindus. Hence, worshipers of Lord Ayappa would be governed by the Hindu scriptures.
  2. Thereafter, the learned Judges confirmed that there was no such provision in the Hindu law which prohibited Hindu women from entering temples.
  3. As there is nothing stated in the Hindu scriptures that prevents women from entering temples, naturally, the alleged practice cannot be considered as an essential religious practice as claimed by the respondents.
  4. The majority opinion also confirmed that this practice is not followed in all other temples of Lord Ayappa within the territory of India and therefore there was no uniformity in this practice. Moreover, there was a time where women used to enter this particular temple to offer worship to the deity.
  5. After ascertaining the above four points, the learned bench went ahead to check the constitutional validity of the alleged practice.

Apart from the above pointers, Justice Chandrachud, in addition to those points, was the only Judge who mentioned that a religious practice cannot be given greater importance than the Fundamental Rights. He further stated that the Right to Religious freedom (Article 25 and 25) is to be exercised without encroaching upon other fundamental rights.

The dignity of women cannot be disassociated from the right to religious freedom. The most important point which Justice Chandrachud states which this research paper follows is that even if the claim of exclusion of women from entry into temples is founded in the religious texts, it would violate the Constitutional values of liberty, equality and dignity.

Triple Talaq Judgement

The petitioner filed a petition against the constitutional validity of Talaq-e-biddat (a form of instantaneous divorce followed by Sunni and Hanafi schools of Muslims). Justice Kurian, Nariman and Lalit formed the majority opinion and held that the alleged practice of triple Talaq is anti-constitutional.[9] The learned bench went through the script of the holy Quran to understand how the Quran interprets this practice. It was noted that neither the Quran nor the Hadith recognized this practice.

The alleged practice was followed by a few sects of Sunni and Hanafi Muslims, however, both these sects considered that the practice is a sinful form of divorce. Further, it was ascertained that the Quran did not encourage divorces and Talaq-e-biddat was an instantaneous kind of divorce by which the former couple had no recourse to reconcile.

The learned majority opinion cited Shamim Ara v. State of U.P which had stated what is bad in theology is bad in law as well.[10] The majority opinion also ascertained that including Talaq-e-biddat the Muslims followed three types of divorces. Hence, the alleged practice could not be termed as an essential or integral practice of the Muslims due to the above-mentioned reasons and then went ahead to test the Constitutional validity of the alleged practice.

Critical Analysis behind the two judgements

Sabarimala case
It is to be noted that this paper is not critiquing the final verdict but critiquing only the reasoning behind the verdict, particularly the reasoning of C.J Dipak Misra, Justice Nariman and Justice Khanwilkar. The aforesaid learned judges, in their judgements, have kept personal laws at a position which is higher than part three of the Constitution.

What is implied through this judgement is that if the worshipers of lord Ayappa did constitute to be a separate religious denomination, the verdict would probably be in the favor of the respondents. Further, if the respondents would prove that the alleged religious practice did constitute to be an essential religious practice of this separate religious denomination then, according to the Shri L.T Swamiar of Shirur Mutt judgement (1954) the final verdict would have definitely gone in favor of the respondents.

Triple Talaq case

The learned bench, before proceeding to test the Constitutional validity of the alleged practice went to ascertain whether it was constituted to be an essential religious practice. For this, the learned bench had to go through the script of the Holy Quran. It is fortunate for the sake of the dignity of Muslim women that the alleged practice was not recognized by the Holy Quran. In other words, if the Quran recognized the alleged practice to be valid and to be good in theology, the verdict would be in favor of the respondents.

The minority opinion that constituted of Justice Khehar and Justice Nazeer refused to check the Constitutional validity of the alleged practice because in their view the alleged practice did constitute to be an essential religious practice in case of Sunnis and Hanafis. By each of the learned bench's opinion, it can be construed that the courts would not have jurisdiction to look into matters which constituted to be an essential/integral religious practice.

The courts, instead of addressing the larger question such as the interplay between freedom of religion and other fundamental rights judged the cases by using the doctrine of essentiality. The Apex Court failed to answer how the two alleged practices in the Sabarimala case and Triple Talaq cases are unconstitutional at face value.

There is no apparent reason why Article 25 and 26 should be given preference over all other Fundamental Rights. Since the past decades the Indian Courts, while adjudicating matters related to religion have always kept religion at a pedestal which is higher than the law of the land (the Constitution). Since the establishment of the Doctrine of Essentiality, the courts have been using it as a camouflage to dispense justice and refrain from answering the larger question in hand.

What is essentially happening is that the judiciary has become the custodian of religion rather than the protector of the Constitutionally guaranteed religious equality and freedom. By the current reasoning of the Judiciary through the Doctrine of Essentiality, if the practices of female gender mutilations practiced by some sects of the Islamic school constituted to be an essential religious practice or an integral part of that religion, would the judiciary allow the removal of the genitals of seven-year-old children in the name of religion?

Mr. Tajamul Hussain, in the Constituent Assembly Debates on Article 26 stated that religion is a private matter between an individual and his creator.[11] In my opinion, religion is a private matter between an individual and his creator as long as that religion is not violating any other individual's Fundamental Rights. Fundamental Rights were established to protect the liberties and freedom of the citizens against any invasion not only by the State but also Religions.

Religious practices can be practiced freely but not at the cost of an individual's Fundamental Rights. According to B.R Ambedkar, Fundamental Rights were the most citizen part of the Indian Constitution. It is the basic requirement that every citizen of this country needs to live with dignity and respect.

The layman interpretation of Article 25 and 26 would contradict the other fundamental Rights. The courts had got multiple opportunities to clear this contradiction through passing clearer judgements, however, on multiple occasions the courts have dodged this question by using the Doctrine of Essentiality. Respectfully, this research paper claims that the courts have failed to interpret the right meaning of Article 25 and 26.

It was clearly stated by B.R Ambedkar that it is not the purpose to give absolute rights in matters relating to religion.[12] This means the Courts have the jurisdiction to look into the Constitutional validity of religious practices. Further, for a clearer interpretation on this matter, Mr. Guptanath Singh stated that the state is above all Gods, it is the God of Gods[13]. By the words of Mr. Guptanath Singh, it can be ascertained that the Constitution is above all religions and nothing within the territory of India can violate the Constitution of this land.

Interpretation of Religion by other Countries

Hans Kelsen, an Austrian jurist, legal and political philosopher who was also the author of the 1920 Austrian Constitution stated that once the courts are obliged to apply customary laws to the decision-making purpose, they are considered to be a law-creating fact just as a legislation. In other words, by Kelsen's theory, if a customary law (including a religious practice) can be enforced in a court of law, it naturally becomes a law and hence, the same can be also amended by the courts.

The American courts made their interpretation on religious matters very clear through the judgement of Reynolds v. United States (1878).[14] In this case, the main question was whether a man who was permitted to practice polygamy by his religion could practice the same in a country where such a practice was criminalized. The learned jury held that freedom of religious beliefs cannot be used as a reason to violate legislative restrictions. People cannot excuse themselves from the law in the name of religion.

The jury further stated:
if such practices, which are allowed in one's religion but are against the law of the land are permitted, it would elevate religious beliefs above the law of the land. It would effect to permit every citizen to become a law unto himself. The jury, hence, held that the law of the land is above all other laws.

This research paper rides on the opinion that if a particular religious practice is contrary to any of the Fundamental Rights as stated in part 3 of the Constitution that religious practice should be held void to that extent. The Fundamental Rights were established so that every citizen could be treated with equality and dignity. Religious practices cannot be allowed to infiltrate into a citizen's fundamental rights even if they constitute an essential religious practice.

The Doctrine of Essentiality which the courts are currently following is arbitrary to the modern concept of equality and fairness. Justice Kurian, in his judgement in the Triple Talaq case stated What is indubitably beautiful? What is indubitably ugly? Who will decide? � certainly not man. This research paper would respectfully disagree with this preposition as our Constitution has been adopted for the same reason to adjudicate such matters.

All answers lie solely in the right interpretation of our Constitution. The current endeavor to pass off personal laws outside the purview of the courts' interference and hence, treat them as private laws is an attempt to fuel an unconvincing cause. By the current position of religious practices, a citizen of this country would have to convert from one religion to another in order to avail of his/her fundamental rights.

This would be illogical and would defeat the whole essence of our Constitution. A citizen's religion, cannot under any circumstance, be given the authority to encroach into another citizen's Fundamental rights. The current position would enable a lot of violations to go unchecked in the name of religion. A religion cannot be practiced at the cost of any citizen's Fundamental Rights.

Hence, it is necessary to fill this gap between the realm of is and ought which is to say what the Constituent Assembly debates actually meant as compared to what the judiciary is actually interpreting it as. The solution could be by adding a clause under Article 25 and 26 stating:
If any religious practice followed by any religious denomination is in violation of any other fundamental rights as prescribed in Part 3 of the Constitution, it will be held void to that extent.

This sub-section will leave the doctrine of Essentiality redundant. This means that each religious practice will have to go through a test so as to ascertain if it violates any fundamental rights notwithstanding what is written in their holy script or whether the alleged religious practice constitutes to be an essential or integral part of that religion. The attempt is not to demean any religion but only to ensure that each citizen of this country can rightfully avail and enjoy the fundamental rights as enshrined in our Constitution.

  1. AIR 1952 BOM 84.
  2. 1997 3 SCC 573, 1994 4 ALT 1138, etc.
  3. 1971 KLT 684.
  4. AIR 1981 SC 789.
  5. 1954 AIR 282.
  6. Ibid.
  7. (2020) 2 SCC 1.
  8. (2017) 9 SCC 1.
  9. (2002) 7 SCC 518.
  10. Mr. Tajamul Hussain, 7.68.32, CAD on Art 26 (7th December, 1948).
  11. Dr. B.R. Ambedkar, 7.68.9, CAD on Art 26 (7th December,1948).
  12. Guptanath Singh, 7.68.55, CAD on Art 26 (7th December,1948).
  13. 98 U.S. 145 (1878).
Award Winning Article Is Written By:
  1. Aman Malik
  2. Dhruva Shetty
    Awarded certificate of Excellence
    Authentication No: MA33277615647-14-0321

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