In a recent judgement [1] of the Madras High Court, it was held that the appointment of Archakas must be governed by the Agamas, for temples established based on those scriptures. The Court noted that this is guaranteed under Article 25 and Article 26 of the Constitution.

In the past there have been cases decided by the Hon'ble Supreme Court, which have noted that governance of temples is a secular activity that can be regulated by the government. The Courts had noted that, the rules of appointment can be set up by the regulating authority but are to be guided by scriptures.

In essence, the position of the Agamas, that are religious texts was over years reduced to "guiding", but in its application of the above principle, the Madras High Court attempted to give a mandatory nature to the Agamas in the context, stating that if ignored in cases of temples established by the Agamas, the freedom of religion enjoyed by individuals and sects would be violated.

The Letter Of Law
The judgment implies that in administration too there exists freedom of religion, and even though the State can regulate secular matters, the religious institutions enjoy the freedom to administer their affairs according to their scriptures. Yet it brings to the surface the important questions, that remain unanswered and without clarity. For the purposes of exploration, we must look at the letter of Law in our Constitution.

Article 25 grants freedom of conscience, profession, practice, and propagation to all persons. It subjects this right to public order, health and morality and other provisions of the part. The second clause adds that laws of the state may regulate associated economic, social, and secular activity and provide for social welfare and reform. If we were to elaborate on the terms mentioned, we note the following guaranteed under Article 25 of the Constitution, the freedom includes freedom of"

1. Conscience:
   Loosely defined, this term refers to the subjective element present in the human mind, something that literature often refers to as the seat of morality.
2. Free profession:
   In simple terms should refer to the right to share your ideas with others.
3. Practice:
   Which would mean to include rituals, and do as is required by your religion
4. Propagation:
   Which would essentially imply the ability to educate and pass on the traditions of your religion.

But we also note that in the Article exist the following vague terms in the article:

1. Public order, health and morality and other provisions of the Part.
2. Secular activity.
3. Associated activities.

The Article has guaranteed the freedoms subject to certain factors, leading to the assumption that anything which may be against said morality, which in the social context would be the morality of the majority, could lead to limiting of the right to practice and profess religion. In the battle between State and religion, State seems to come out victorious with the power of real sanctions behind it.

Developing different types of tests and mechanisms to avoid political outrage while trying to impose moral and legal limitations on religious practices. It can be said that the State regulation has gone far, but at the same time the Courts have diplomatically attempted to read the law to avoid rendering the rights guaranteed under Article 25 and 26 redundant.

Balancing The Church And State
The judicial interpretation so far has been made by the Courts of our country by reading between the lines and conveniently regulating only certain aspects of religion.

The courts proceed in the following manner, when the question arises as to whether a right relating to religion has been violated by the State.
They note whether the regulation attacks:

1. A religious matter.
2. An essential practice

It is noted in judicial interpretation that a secular matter is open to state regulation, such as management and administration, however with certain limitations, i.e., the entire administration cannot be divested from the religious organisation[2]. Often courts have warned regarding secular practices being clothed as religious.

In the identifying of a religious matter from a secular matter, there exists a presumption that the two can be separated. In the fundamental sense, religion is a code of conduct and not just a set of scriptures governing the method of prayer. Could we then in that sense truly ever separate the two aspects? It can be assumed that we cannot do so without sacrificing the true definition of religion or its understanding and perhaps justify this interference as a necessary evil.

The Courts have developed a "test of essential religious practices" which aim to identify those practices so fundamental, if altered would alter the religion, the State seems to have been limited in that aspect. The vagueness of the test of essentiality itself is very dangerous and is claimed to be guided by analysis of practice, beliefs, doctrines, and history. However, how does one begin to prove the essentiality of a practice and see whether without it a religion may continue to exist.

Reasonably most "practices" in older religions can be claimed to be "non-essential" leaving little room for the "freedom". Furthermore, could we decide what is essential based on essentiality for an individual, given that the Articles also include freedom of conscience?

One may also note that no limitation beyond the words stated, has been put on the State with regards to the regulation that it can exercise, i.e., nowhere has it been stated in express terms that the State may not regulate practices of a religion if they happen to be essential to the religion. The courts have developed the concept of essentiality[3] in dealing with matters of religion, to balance the individual and community rights to practice religion and the duty of the State to ensure welfare.

Whether a practice is essential or not is determined with the help of doctrines, community practice, history, and tenets of the religion[4] for examination of which the Courts have made themselves the final authority on the same and have stated that such a finding is a finding of fact, which cannot be revisited[5].

A risky stance to take, for the Courts are the right bodies to decide the letter of law but cannot be said to be the authority on religious texts and beliefs. Can it be said that with the aim of determining State regulations, the Court may have taken up the task of determining the scope of the religion itself? If that is the case, should that be permitted?

The Validity Of The Test
In the case of appointment of a qualified candidate as a pujari where it was required by usage that the post is hereditary, if there was a law mandating that the post be filled by any person, the law would prima facie be considered violative of Article 25. In the case under discussion however, it was held[6] that:

1. Appointment of a pujari is a Secular practice which can be regulated by the State.
    
2. The law in place required the consideration of practices and tenets of the denomination by the Government officer and therefore could not be invalidated. The court stated that in a case where hereditary appointment of pujari was essential and required by tenets, the Officer would be bound by said tenets. In case he refuses to follow the same, the action could be challenged.

The court in this case went to the extent of exploring the nature of rules governing worship. As the job of a pujari in the said belief system was to perform worship for spiritual benefit and prevent the defiling of the idol. If in the tenets it has been stated that only a particular people can touch the idol, and not others no matter how high the caste, the interference with this practice would be violation of practice of religion. The Courts have so far been able to draw lines case by case, as is expected in the Common law system.

The freedom of conscience allows for an individual understanding of the spiritual. This includes personal beliefs and doctrines. The freedom to profess involves declaration of one's faith freely, while also permits the practice of aspects of his/her religion freely. The only limitation being public order, health, and morality. The question then developed by the courts is whether the practice of the essential to the religion, if yes, it is free from State action.

Here comes the hypothetical, what if the personal religion as practiced by an individual or developed by a few in recent times, involves harm to public order, morality, and health. Do we then not regulate or interfere? So far, "by god's grace" no such essential practice has come forth, which is so harmful to the public that this question might have to be considered by the Courts. So far, any harmful practice that has been found has been non-essential to the religion. Which to me as a law student seems about right, but as a philosophy student seems convenient.

Essence of anything has never truly been found and is often termed as qualia or the unknowable but known, in Hinduism at least with no one book, no one school of philosophy, it opens to the State a huge door to regulate very many practices that may end up interfering with the fundamental guarantee more than maybe necessary. The "lucky" denominations with specific rules and established rituals have been able to justify some practices as essential practice as noted in the case above. While many others remain open to question. Without passing any character judgement on the issue, I would also like to discuss the distinction between religious matters and secular matters created by the Courts.

Questions; Unanswered
In Article 26 the religious denomination has the right to "establish and maintain" (which has been read conjointly by the courts) religious institutions. The denominations have the right to manage the matter of religion. The matters of religion have been compared to administrative matters by the courts very many times. It is an interesting approach that the Courts have taken in this matter, given that there is no definition of religion or administrative dealings given clearly and no tenets or principles of guidance have been laid down, and they cannot be laid down given that every religion is its own institution with religion percolating, governing different things at different levels.

An interesting line noted in an obiter dictum is that there is fundamental right to religion but not a fundamental right to personal law[7]. Which when looked at as a quick remark seems intelligible but perhaps when looked at with a magnifying glass may make little sense. The Agamas regulating the appointment of pujaris are personal laws, which as previously noted are protected under fundamental right to religion. So then would it be more apt to say that one only has fundamental right to essential personal laws for religious practice, and those are free from the regulation of the State.

Freedom to religion having been guaranteed as freedom of belief, practice, conscience or at least some element of that is aimed to be protected while also balancing the state welfare on the other side. The article speaks of owning and acquiring property and managing it in accordance with law. But the courts have already stated that no fundamental right to a land through religion exists unless very specific reason are present.

The land is not free from acquisition by the State and the management of religious affairs as noted in 25(2) (a) are to be regulated by law. In the light of the Hijab[8] ban case's split decision, once again I find myself considering the concept of religious freedom which continues to elude me. Can there ever be a specific answer? Can there be guiding principles that the Court now needs to put in place to identify essential practices? Would there also be scope for regulation of these practices? Although freedom of religion is not absolute, is it now obsolete?

End-Notes:

1. All India Adi Saiva Sivacharyagal Seva Sangam v State of Tamil Nadu and ors. 2022 Livelaw(Mad) 364
2. Seshammal v State of Tamil Nadu (1972) 2 SCC 11
3. Commissioner of Police v Acharya Jagadishwarananda Avadhuta (2004) 12 SCC 770
4. Seshammal v State of Tamil Nadu (1972) 2 SCC 11
5. Commissioner of Police v Acharya Jagadishwarananda Avadhuta (2004) 12 SCC 770
6. Seshammal v State of Tamil Nadu (1972) 2 SCC 11
7. N. Adithayan V Travancore Devaswom Board
8. Aishat Shifa v State of Karnataka and Ors 2022 LiveLaw (SC) 842