The year of 2018 was the most eventful year for the Supreme Court as it
pronounced various decisions affecting various aspects the life of masses for
example Victorian-era law criminalising homosexuality and adultery have been
decriminalised, the right to privacy is hailed as negative as well as positive a
fundamental right, Aadhaar judgment with a bold dissent from Justice Chandrachud
declaring whole Aadhaar Act unconstitutional.
Last year was indeed a year of
change and reform in the jurisprudence of Constitutional law in India and it may
also be called as transformative Constitutionalism. It started however from the
year of 2017 with the decision of
Shayara Bano vs Union of India is commonly
known as Triple Talaq judgment in which the constitutional bench of five judges
by the majority of 3:2 held instant triple talaq or talaq-e-biddat unconstitutional.
In October 3rd 2018 the Supreme Court held a ban on entry of women between the
age of 10 to 50 is also unconstitutional and held it negates the concept of
gender equality enshrined in our constitution and Justice D.Y. Chandrachud even
held that this practice also violates Article 17 by discriminating women on the
basis of purity.
In this Article, we will go through all the relevant cases in which the doctrine
of essential religious practice test evolved, applied and reiterated to the
Justice D.Y. Chandrachud opinion which held this test as wrong and upheld
constitutional morality over religion.
The question of the supremacy of constitution morality over religion came to the
Supreme Court in 1954 in the case of Commissioner, Hindu Religious Endowments v.
Sri Lakshmindra Thirtha Swaminiar of Sri Shirur Mutt popularly known as Shirur Mutt. In this case the question of mismanagement of finances of mutt
arisen by the agent appointed by the Hindu Endowment board.
The petitioners, in
this case, asked that actions of the board and its agent is violative of Article
19(1)(f) and Article 26 of the constitution. In this case, two questions were
raised with regard to Article 25 of the constitution that whether this article
which is intended to protect religious freedom of individual can applied for
religious denominations too? And another question was related to Article 26
that whether the mutt comes under the description of religious denomination and
if it does what includes its right to manage its own affairs. Basically, the
task at hand was to differentiate between purely religious activities and
secular activities of the mutt. To identify the religious activities the Supreme
Court first have to define what is ‘religion’?
The apex court had quoted various
foreign cases to define the word religion and given it very broad sense by
A religion undoubtedly has its basis in a system of beliefs or doctrines which
are regarded by those who profess that religion as conducive to their spiritual
well being, the Constitution not only guarantees and protect our freedom of
religion but also acts done in pursuance of religion and this is made clear by
the use of expression ‘practice of religion in Article 25 of the
Now coming back to our first questions that whether Article 25 is available for
religious denominations or not. The Supreme Court held that this question is
irrelevant because the mutt is certainly not a corporate body it is run by a
spiritual head and he is bound by the duty to preach, practice and propagate the
tenets of the religion. The court further said:
If any law prohibits him in propagating and practicing his religion will be
violative of Article 25. Institutions as such, do not perform religious
activities individuals do.
Distinguishing between Religious Activities and Secular Activities
The Supreme Court answered the second questions quite elaborately while citing
various American and Australian cases. It said by continuing the definition of
After reading Article 26 the clause (b) is placed on a different footing than
the other next two clauses which are made subject to the law made. It is now
clear that merely administrative functions are not related to religious affairs
so they can be made subject to the law made by a competent authority.
case of Commissioner of Police vs. Acharya Jagdishwarananda Avadhuta and
Essential part of a religion means the core beliefs upon which a religion is
founded. Essential practice means those practices that are fundamental to follow
a religious belief. It is upon the cornerstone of essential parts or practices
that the superstructure of a religion is built, without which a religion will be
no religion. 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. There
cannot be additions or subtractions to such part because it is the very essence
of that religion and alterations will change its fundamental character.
such permanent essential parts which are protected by the Constitution. Nobody
can say that an essential part or practice of one's religion has changed from a
particular date or by an event. Such alterable parts or practices are definitely
not the core of religion whereupon the belief is based and religion is founded
upon. They could only be treated as mere embellishments to the non-essential
part or practices.
However in this same case Justice Lakshman in his dissenting opinion held that
only religious denominations have the right to determine what practices are
essential to their religion and outside authority have no jurisdiction in it. It
is because of the simple reason that people practicing that religion will have a
better understanding the nuances of their religion than the judges who are not
expert in theology.
He further in this dissenting opinion said that:
What would constitute an essential part of religion or religious practice is to
be determined with reference to the doctrine of a particular religion which
includes practices which are regarded by the community as part and parcel of
that religion. Test has to be applied by courts whether a particular religious
practice is regarded by the community practising that particular practice as an
integral part of the religion or not. It is also necessary to decide whether the
particular practice is religious in character or not and whether the same can be
regarded as an integral or essential part of religion, which has to be decided
based on evidence.
Now an important questions arises that whether clause (b) of Article 26 is
subjected to legislative reforms for social welfare or the throwing open of
Hindu religious institutions of a public character to all classes and Section of
Hindus? This question was answered in the case of State of Mysore vs. State
of Venkataraman Devaru and Others. One very persuasive argument opined by the
party saying that Article 26 is not only protected Hindus but other religious
communities as well and Article 25 (2) (b) only applies to Hindu temples so it
cannot be the intentions of makers of constitution to put limitations of Article
25 (2) (b) on one community only. Thus Article 26 should fall outside the
jurisdiction of Article 25 (2) (b).
The court negating this contention said
The answer to this contention is that it is impossible to read any such
limitation into the language of Article 25(2)(b). It applies in terms to all
religious institutions of a public character without qualification or reserve.
As already stated, public institutions would mean not merely temples dedicated
to the public as a whole but also those founded for the benefit of sections
thereof, and denominational temples would be comprised therein.
However it appears that on the facts and circumstances of this case that Article
26(b) and Article 25(2)(b) are in direct conflict. So the court has applied the
doctrine of harmonious construction to resolve this apparent conflict.
doctrine is basically a mid-way path between two conflicting provisions and the
court applying this doctrine said that:
If the contention of the appellants is to be accepted, then Article 25(2)(b)
will become wholly nugatory in its application to denominational temples,
though, as stated above, the language of that Article includes them.
other hand, if the contention of the respondents is accepted, then full effect
can be given to Article 26(b) in all matters of religion, subject only to this
that as regards one aspect of them, entry into a temple for worship, the rights
declared under Article 25(2)(b) will prevail. While, in the former case, Article
25(2)(b) will be put wholly out of operation, in the latter, effect can be given
to both that provision and Article 26(b). We must accordingly hold that Article
26(b) must be read subject to Article 25(2)(b).
It is clear from the above ratio decidendi of the court that it indirectly
upheld that constitutional morality enshrined in Article 25(2)(b) read with
Article 17 supersedes the religious practice of excluding people from a public
institutions solely on the basis of caste or birth.
However in another case of Sardar Syedna Taher Saifuddin Saheb vs. State of
Bombay the Supreme Court by the majority of 2:1 held that the right of
excommunication is an integral part of the Dawodi Bohra Community by accepting
the petitioners the argument that to maintain the bond of religious unity and
discipline and which will ensure the adherence to its tenets.
dissenting opinion authored by Chief Justice Bhuveneshwar Prasad Sinha was one
step toward transformative constitutionalism. He accepted the Attorney General's
argument that right to excommunicate is not a matter of religion and the act
invalidating it is not actually interfering in the religious affairs. The act is
only intended to protect the civil rights of the person excommunicated. The
right to worship at a particular place is a civil right of every individual and
the legislature can legislate or make a law protecting it.
The Chief Justice
further said that the present act invalidating the excommunication is:
It will be noticed that the Act is culmination of the history of social reform
which began more than a century ago with the enactment of Section 9 of
Regulation VII of 1832 of the Bengal Code, which provided, inter alia, that the
laws of Hindus and Muslims shall not be permitted to operate to deprive the
parties of any property to which, but for the operation of such laws, they would
have been entitled.
Those provisions were subsequently incorporated in the India
Act (21 of 1850) known as the Caste Disabilities Removal Act which provided
that a person shall not be deprived of his rights or property by reason of his
or her renouncing or exclusion from the communion of any religion or being
deprived of caste, and that any such forfeiture shall not be enforced as the law
in the courts.
The impugned Act, thus, has given full effect to modern notions
of individual freedom to choose one's way of life and to do away with all those
undue and outmoded interferences with liberty of conscience, faith and belief.
It is also aimed at ensuring human dignity and removing all those restrictions
which prevent a person from living his own life so long as he did not interfere
with similar rights of others.
He slightly hinting to Article 17 of our constitution although not stating it
directly said that:
On the social aspect of excommunication, one is inclined to think that the
position of an excommunicated person becomes that of an untouchable in his
community, and if that is so, the Act in declaring such practices to be void has
only carried out the strict injunction of Article 17 of the Constitution, by
which untouchability has been abolished and its practice in any form forbidden.
The article further provides that the enforcement of any disability arising out
of untouchability shall be an offence punishable in accordance with law. The
Act, in this sense, is its logical corollary and must, therefore, be
The opinions of Chief Justice Sinha and Justice Lakshamanan in the Avadhut
case apart from being dissenting are also similar in more two ways:
- Firstly both of these opinions upheld the constitutionality of law
amending the relationship between religious denomination and its members by
bringing individual rights at power to group rights.
- Secondly, they both used Article 17
in order to do so. Justice Lakshmanan read Article 25(2)(b) along with Article
17 and Chief Justice Sinha used the word untouchable in a broader sense by
holding that excommunication from a religious community will result in
making someone as hapless as untouchable or outcasts.
However, it can be objected
because traditionally the word outcast or untouchable in only used in one sense
that is caste based discrimination in Hindu Caste system so Article 17 does not
have any jurisdiction especially in Saifuddin case.
Gautam Bhatia says in his blog:
The word untouchability, understood as a term of art, does not include every
practice of exclusion engaged in by a group against members. Rather, it is
limited to a practice prevalent within the Hindu caste system, at the heart of
which is the prohibition of physical contract with those deemed untouchables,
and its consequent spillover into the realms of economic, political and social
So in order to find out whether these judges were wrong in applying Article 17
in such a broader sense or not we have to read the concurring opinion of Justice
D.Y. Chandrachud in the case of Indian Young Lawyer Association & Ors vs. The
State of Kerala & Ors we will deal with the case in detail later. At this
moment we are only concerned what Justice Chandrachud said about the extent of
In his the opinion he said that:
Article 17 in textbooks on constitutional law, it is a provision which has a
paramount social significance both in terms of acknowledging the past and in
defining the vision of the Constitution for the present and for the future.
Article 17 provides:
Untouchability is abolished and its practice in any form is forbidden. The
enforcement of any disability arising out of Untouchability shall be an
offence punishable in accordance with law.
Article 17 abolished the age-old practice of untouchability, by forbidding its
practice in any form. By abolishing untouchability, the Constitution
attempts to transform and replace the traditional and hierarchical social order.
Article 17, among other provisions of the Constitution, envisaged bringing into
the mainstream of society, individuals and groups that would otherwise have
rema9ined at society’s bottom.
As the term untouchability is not defined in the constitution so Justice Chandrachud peruses constitutional assembly debates. He brings those debates
about the meaning, extent and defining untouchability into our attention. He
quoted K.M. Munshi and other assembly members who were part of the sub-committee
constituted for drafting a report on fundamental rights. On the suggestion of
B.N. Rau the phrase ‘in any form’ was added to Article 17 which widens the scope
of Article 17 from its traditional narrow and specific definition of the word
In the judgment he quoted what KM Pannikar has opined about the
comprehensiveness of Article 17:
If somebody says that he is not going to touch me, that is not a civil right
which I can enforce in a court of law. There are certain complex of disabilities
that arise from the practice of untouchability in India. Those disabilities are
in the nature of civil obligations or civil disabilities and what we have
attempted to provide for is that these disabilities that exist in regard to the
individual, whether he be a Christian, Muslim or anybody else, if he suffers
from these disabilities, they should be eradicated through the process of
There were some more amendments proposed by the likes of Professor K.T Shah,
Naziruddin Ahmed and many others seeking a definition of the word untouchability
but all these amendments were either retracted or rejected. This refusal of
constitutional assembly from defining the word untouchability shows that
constitution makers did not intend to put any caveat or restriction on the scope
of Article 17. Thus the opinions of Justice Lakshaman and Chief Justice Sihna
were not wrong in fact they were in the line of the spirit of Article 17 and
fulfills the ethos of secularism and its components equality and freedom as
argued by the bestselling author Yuval Noah Harari in his book titled 21 lessons
for 21st century.
Problems in the essential religious practice test
As stated in many cases cited above that only religious communities get to
decide what practices are essential for their religion and no outside authority
has any jurisdiction in this matter. But here one problem arises particularly in
the Hindu religion which is a mixture of many forms of beliefs as it practices
polytheism. It means that what if one particular segment is considering one
thing as an essential practice and another segment hailing other practice as
essential. This problem was first found by the Supreme Court in the case of Tilkayat
Shri Govindlalji Maharaj vs. State of Rajasthan.
The court said:
If in a given proceeding, one section of the community claims that while
performing certain rites white dress is an integral part of the religion itself,
whereas another section contends that yellow dress and not the white dress is
the essential part of the religion, how is the Court going to decide the
question? Similar disputes may arise in regard to food. In cases where
conflicting evidence is produced in respect of rival contentions as to competing
religious practices the Court may not be able to resolve the dispute by a blind
application of the formula that the community decides which practice in an
integral part of its religion, because the community may speak with more than
one voice and the formula would, therefore, break down. This question will
always have to be decided by the Court and in doing so, the Court may have to
enquire whether the practice in question is religious in character and if it is,
whether it can be regarded as an integral or essential part of the religion, and
the finding of the Court on such an issue will always depend upon the evidence
adduced before it as to the conscience of the community and the tenets of its
The main problem in this test is that the judges have to decide complex
questions relating to theology in which they have no expertise. They have to
rely on verses written in holy books which can mean several things and can be
twisted to give more than one meanings. It is apparent in the real world, for
example, Holy Quran is used by Islamic scholars to teach the lesson of peace and
love while terrorist used the same Quran to justify their atrocities and
Justice Chandrachud in his judgment in Sabarimala case while upholding
constitutional morality against religion said that:
For decades, this Court has witnessed claims resting on the essentiality of a
practice that militate against the constitutional protection of dignity and
individual freedom under the Constitution. It is the duty of the courts to
ensure that what is protected is in conformity with fundamental constitutional
values and guarantees and accords with constitutional morality. 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 t define a constitutional order of priorities.
Practices or beliefs which detract from these foundational values cannot claim
In the historic the judgment of Navtej Singh vs. Union of India (2018) 10 SCC
1 which decriminalises homosexuality, the court held that:
A discriminatory act will be tested against constitutional values. A
discrimination will not survive constitutional scrutiny when it is grounded in
and perpetuates stereotypes about a class constituted by the grounds prohibited
in Article 15(1). If any ground of discrimination, whether direct or indirect is
founded on a stereotypical understanding of the role of the sex, it would not be
distinguishable from the discrimination which is prohibited by Article 15 on the
grounds only of sex.
In the judgment of Sabarimala the Supreme Court by the majority of 4:1 held that
ban on women entry between the ages of 10 to 50 as they are menstruating is
unconstitutional as it violates their right to privacy and their right to
equality. The respondents, however, argued that this ban on entry of
menstruating women is an age-old custom and an essential part of their religion
though it may lead to discrimination. Although they never agreed that it is a
discrimination because not all the women are banned and there are other temples
of Lord Ayappa where women are allowed to enter.
This argument finds its
resonance in the minority opinion of Chief Justice Khehar in the case of Shayara
Bano vs. Union of India where he said that instant triple talaq though bad in
theology but good in law because it is practicing since 1400 AD and it is an
essential part of the religion. Nevertheless, the majority did not agree with
this vies and held instant triple talaq bad in theology as well as bad in law.
Justice Chandrachud even applied Article 17 as it the ban treat women as impure
and untouchable thus, upholding the principle that discrimination is an
antithesis to equality.
In all the cases cited above (except for Justice Chandrachud’s opinion in
Sabarimala) the court followed the narrow approach that is the court should
limit itself to the technical aspect of law and solve the issue in question
pragmatically rather than ideal-oriented and comprehensive one or in other words
transformative approach which aims at the deep-rooted biases and prejudices in
society and test them on the principles of the constitution.
Another important aspect arises after observing the Supreme Court’s own
jurisprudence relating to Article 25 and 26 is full of contradictions which
makes it very complex. That’s why Justice Chandrachud said that essential
religious practice the test should be done away with because instead of solving
the problem it increases it.
Decriminalising Homosexuality: End of Victorian Era Section 377 of Indian Penal
Another example of constitutional morality is the case of Navtej Johar Singh Vs.
Union of India. In this case Supreme Court had overruled its own previous
judgment of Suresh Kaushal vs. Union of India and decimalizes the archaic
Section 377 of Indian Penal Code which criminalizes consensual sex except for
This section endorses the view of Judeo-Christian
which defines sex is only for procreation and any sexual activity which is
non-procreating is unnatural. However, everyone saw this coming especially after
the historic the unanimous judgment of Justice Puttuswamy vs. Union of India
which makes the right to privacy a fundamental right, in other words, the
judgment of Navtej Johar was just fait accompli.
Delhi High Court delivered this
bold decision when there was no fundamental right to privacy and the then
government (however Ministry of Family and Health Affairs was alleging that due
to Section 377 prevention of HIV/AIDS has been hampered) was against the
decriminalization of Section 377 by interpreting the word sex in Article 15
also as sexual orientation thus making any discrimination on the basis of solely
on sexual orientation will violative of fundamental rights.
This decision was
delivered in extreme pressure from right-wing protestors claiming it is immoral
and unnatural and ultimately Supreme Court in 2014 did not rise to the occasion
as the Delhi High Court did and again criminalizes Section 377 thus subjugating
the LGBT community rights to the majority wish just like Savigny argues in his Volksgeist theory
which says law is nothing but people spirit and in practical terms it means the
law is what majority of people say. Justice Indu Malhotra in her opinion in
Navtej Johar had therefore said that History owes an apology to the LGBT
community and kin.
Decriminalizing Adultery: Unchattelisation of women
Supreme Court in the case of Joseph Sine vs. Union of India had struck down
Section 497 which prescribes the punishment for a man who knowingly had sex with
a married woman. The question of decriminalizing adultery had come to Supreme
Court on three occasions and all the time it was answered in negative. This
section was problematic because it treats the wife as a property of husband and
it does not penalize woman even as an abettor and also when the husband had
given consent or connivance then this section does not arise thus making the
husband the owner of a wife. However it was justifies by citing Article 15(3)
which allows the state to take any affirmative action for the welfare of women
and children. The court also took the refuse of phrases like the sanctity of
marriage, the immorality of seducing other man's wife and family values, etc. to
justify this section.
But the Supreme Court in this judgment opined that:
Prima facie, on a perusal of Section 497 of the Penal Code, we find that it
grants relief to the wife by treating her as a victim. It is also worthy to note
that when an offence is committed by both of them, one is liable for the
criminal offence but the other is absolved. It seems to be based on a societal
presumption. Ordinarily, the criminal law proceeds on gender neutrality but in
this provision, as we perceive, the said concept is absent. That apart, it is to
be seen when there is conferment of any affirmative right on women, can it go to
the extent of treating them as the victim, in all circumstances, to the peril of
the husband. Quite apart from that, it is perceivable from the language employed
in the section that the fulcrum of the offence is destroyed once the consent or
the connivance of the husband is established. Viewed from the said scenario, the
provision really creates a dent on the individual independent identity of a
woman when the emphasis is laid on the connivance or the consent of the husband.
This tantamounts to subordination of a woman where the Constitution confers
equal status. A time has come when the society must realise that a woman is
equal to a man in every field. This provision, prima facie, appears to be quite
Justice Chandrachud while delivering a lecture himself had said that
Constitution is in itself feminist. He said at the event that when you apply
feminist principles in deciding, you are only giving effect to this substantive
equality of the constitution. He linked transformative constitutionalism
with feminism by saying that both feminism and transformative constitutionalism
are about the disruption of societal disruption and poses a challenge to the
Gautam Bhatia in his blog had compared untouchability with slavery in America.
He said that slavery was an outcome of racial hierarchy where slaves were not
allowed to visit any public space whereas in case of menstruating women they are
also not allowed to visit the temple on the grounds of impurity. This statement
in itself is very disturbing because slavery in itself was one of the biggest
human tragedies in recent past and if it is practiced in any form then it is
Justice Chandrachud said the word untouchability is not preceded
by any caveat and he further said that:
The incorporation of Article 17 into the Constitution is symbolic of valuing
the centuries old struggle of social reformers and revolutionaries. It is a
move by the Constitution makers to find catharsis in the face of historic
horrors. It is an attempt to make reparations to those, whose identity was
subjugated by society.
On the other hand Justice Indu Malhotra said:
All forms of exclusion would not tantamount to untouchability. Article 17
pertains to untouchability based on caste prejudice. Literally or historically,
untouchability was never understood to apply to women as a class. The right
asserted by the Petitioners is different from the right asserted by Dalits in
the temple entry movement. The restriction on women within a certain age-band,
is based upon the historical origin and the beliefs and practises of the
On plain reading both of these views seems right and justiciable keeping in mind
especially Article 14 and Articles 25&26. Justice Indu Malhotra argued that
notions of rationality and equality embedded in Article 14 cannot be applied in
religious customs and ceremonies because of Article 25.
Whereas Justice Chandrachud argues in the very start of his opinion:
The freedom to believe, to be a person of faith and to be a human being in
prayer has to be fulfilled in the context of a society which does not
discriminate between its citizens Their equality in all matters of status and
opportunity gives true meaning to the liberty of belief, faith and worship.
Equality between citizens is after all, a powerful safeguard to preserve a
common universe of liberties between citizens, including in matters of religion.
Combined together, individual liberty, equality and fraternity among citizens
are indispensable to a social and political ordering in which the dignity of the
individual is realised.
But if we see the constitution and the intention of constitutional makers
deliberately leaving many aspects of the constitution in vague terms shows that
constitutional makers repose great trust in future parliamentarians that they
would transform this constitution for the greater good of society. Supreme Court
shattering the old conventional divide of public and private and upholding group
views over individual gave a very progressive judgment in Sabarimala.
Prohibiting someone only because of their biological features in 21st century is
a reflection of the static past and it is high time for our country to shed all
these dogmas and embrace humanity.
Our preamble is decorated with four
principles which are reflective of every democratic progressive society:
justice, liberty, equality and fraternity and they are not disjunctive. So in
order to realize these principles we have to stop rationalizing religious
customs or practice which is contrary to these principles. It does not mean that
constitution makers were not aware of the inexplicable relationship between the
general public and religion, the principle liberty includes freedom of speech,
expression, belief, and faith, etc., however, subjected to the certain
However, the review petition is being filed in Supreme Court to review its
decision in Sabarimala case owing large scale protests. Now it will again be a
test of Supreme Court to upheld its earlier bold and brave decision or to
succumb to political and majoritarian pressure.
- AIR 1954 SC 282.
- (2004) 12 SCC 770.
- India Const. art. 25, Cl. 2(b).
- AIR 1958 SC 225.
- AIR 1962 SC 853.
- (2004) 12 SCC 770.
- Gautam Bhatia, untouchability-and-the-constituent-assembly-debates ,
indconlawphil.wordpress.com (10/01/2019) https://indconlawphil.wordpress.com/2016/03/16/untouchability-and-the-constituent-assembly-debates/
- 2018 SCC Online SC 1690.
- (1964) 1 SCR 561
- 2018 SCC Online SC 1690
- SCC Online.com
- Joseph Shine v. Union of India, (2018) 2 SCC 189.
- Mehal Jain, www.livelaw.in/constitution-itself-is-feminist-justice-chandrachud-on-transformative-constitution-feminism
, Livelaw (9/1/2019) https://www.livelaw.in/constitution-itself-is-feminist-justice-chandrachud-on-transformative-constitution-feminism/.
- 2018 SCC Online SC 1690.
Articles on Sabarimala:
Devotion Cannot Be Subjected To Gender Discrimination, SC Allows Women Entry
In Sabarimala By 4:1 Majority
Freedom of Religion and Sabrimala Judgement (2018)
Violation of Woman right in Sabrimala Temple
Sabrimala Case Verdict
All about the Sabrimala Temple
Religion and Equality in Liberal Constitutionalism
Sabarimala - Prejudices, Misconceptions and Ignorance