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.
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
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) 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
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
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law
From above it’s very clear that freedom of religion is not absolute freedom but –
- Subject to public order, morality and health
- State can regulate secular activities associated with religion
- State can intervene for social welfare
- State can throw open Hindu temples of public character
- Administration of property has to be in according with law
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.
Now let’s come back to the courts
#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.
Now let’s come to the question of entry of women into temples – that is under consideration of supreme court
Argument for goes something like this –
- Violates right to equality (art 15)
- Violates right to freedom of worship of women devotees (art 25). But the right to worship does not extend to worshiping in any and every place
- State responsibility to throw open hindu temples
- Excluding women is not an essential religious practice. Well, it’s customary practice going on for hundreds of years
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.
Clearly there is conflict between art 15 and art 25 and 26. Which one should prevail?
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 –
- Intimate the District Magistrate every time a conversion takes place
- Prohibit — and impose criminal liability on — conversion or attempt to conversion by the use of force or by inducement or by any other fraudulent means.
#4. Rev. Stainislaus v. State of Madhya Pradesh
On the ground that freedom of propagation implied freedom to convert.
Court interpretations –
- “propagate,” mean transmitting or spreading one’s religion by an exposition of its tenets,” but it does not include the right to convert another person to one’s own religion
- There is no fundamental right to convert another person to one’s own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the ‘freedom of conscience’ guaranteed to all the citizens of the country alike.”
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.
Now, it’s time for some thought questions
- Religious traditions often respond to external interventions by growing more conservative and resisting reform. To what extent then is state intervention desirable in religious affairs?
- India might be the only republic where the judiciary can pronounce on matters not only relating to law, but also those concerning theology. To what extent is it appropriate for secular courts to interpret religious scripture?
- The Constitution does not mention the term “essential religious practice”: it grants protection to the right to practice, profess and propagate one’s religion, not just to engage in the “essential practices” of religion. To what extent is it right to restrict religious practices to essential practices as defined by supreme court?
- What’s the best way to reconcile right to freedom of religion with right to non discrimination?
- In what respects Indian secularism different from western concept of secularism?
