If you want to know how it wall started, go back here.
Having analysed a very sensitive issue of uniform civil code, we now move to discuss even more fundamental and more nuanced issue of intervention by the state and its courts in our religious affairs.
Being a deeply religious society, questions pertaining to religious freedom such as whether or not freedom of propagation of religion implied freedom to convert, constitutionality of religious shrines excluding women from sanctum sanctorum etc have constantly come up in courts. When courts sit in judgement over these issues, question arise on appropriateness or otherwise of secular courts interpreting religious scriptures and deciding what’s essential religious practice and what’s not.
These are not irrelevant questions. They hit back to the fundamental values on which our Republic was founded upon. They involve conflict among various rights and hence are interesting (and important) to follow up.
Before we analyse these issues, let us have a look at some appropriate constitutional provisions.
Freedom of conscience and free profession, practice and propagation of religion
(2)Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
Freedom to manage religious affairs
Subject to public order, morality and health every religious denomination or any section thereof shall have the right
From above it’s very clear that freedom of religion is not absolute freedom but –
Note here that only Hindu (not Muslim or Christian) institutions and public (not private) institutions can be thrown open to public.
Now question arises as to why so many restrictions on religious freedom in a liberal democracy. Answer was provided by Dr. Ambedkar
The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill.
In other words, a strict separation between religion and state would have prevented the Constitution from carrying out social revolution.
#1. Ram Prasad Seth v/s state of UP (1957)
UP Government regulations prohibited bigamous marriages to those in public employment and they were challenged on the grounds of Article 25.
What was the argument?
Some senseless argument essentially stating there are some rites which could be performed only by sons and if 1st wife could not deliver son, marrying for the 2nd time was essential to live according to Hinduism.
No gifts for guessing, Allahabad high court quashed the petition but in the process it invented a doctrine called essential religious practice.
Note here that court could easily quash the petition on social reform ground but nevertheless it chose to invent a doctrine.
#2. Queshi v/s state of Bihar (1958)
The doctrine was lapped up by the supreme court. It held that the sacrifice of a cow on the occasion of Id was not an essential religious practice for Muslims. There was no social reform agenda here.
Since than doctrine has spelt out the outer limits of what could be called the sole domain of religion. It has been applied countless times, most recently by Rajasthan high court in Santhara judgement. Again there was no question of an intended social reform for state to intervene in religious matters.
In other jurisdictions, the Court only asks whether a particular practice is “sincerely held” by its adherent, a question that requires it to go into the adherent’s past behaviour and conduct, but not into the substantive nature of the practice itself.
Argument for goes something like this –
But it’s available only against public temples.
In 1993, the Kerala High Court held that the management of the temple could restrict access to women who were in the 10-50 age group. This is what they opined –
“restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial,” and that as such not violative of Articles 15, 25 and 26 of the Constitution of India.
If you recall article art. 25, it is subject to other provisions of part 3 of constitution. Article 15 is part of part 3. Let’s wait for supreme court judgement.
Similarly issue is going on with regard to entry of women in Shani Shingnapur temple and Haji Ali mosque. There argument is that women were allowed to go to every part until few years back. Clearly, some clerics don’t want equal rights for women. Matter remains subjudice.
#3. Ghar vapasi and conversion
Religious conversion is a very sensitive issue in India and different communities have accused each other of conversion under duress or by allurement. Mass conversions sometimes create law and order problem.
In this context M.P and Odisha passed anti conversion laws under which –
#4. Rev. Stainislaus v. State of Madhya Pradesh
On the ground that freedom of propagation implied freedom to convert.
Court interpretations –
Of course there’s criticism that governments targets minorities through these laws.
Similarly question of state interference in religious affairs arise when government subsidizes haj pilgrimage or kailash mansarovar Yatra.
Supreme court has held such subsidy as constitutional though it directed govt to abolish haj subsidy. it again cited from Quran.