Religious & Secular : Drawing Distinction
By Kishore Kulkarni
“The Practices in question should be treated as a part of religion, they must be regarded by the said religion as its essential and integral part: otherwise even purely secular practices which are not an essential or integral part of religion are apt to be clothed with a religious form and may take a claim for being treated as religious practices”Justice Gajendragadkar in Durgah Committee Case
"Modern society requires and deserves a truly secular state, by which I do not mean state atheism, but state neutrality in all matters pertaining to religion"
-Justice P.B. Sawanth in S.R.Bommai’s case
Secularism is usually analysed as having two basic propositions—the first of which is the strict separation of the state institutions from religiousness, while the second proposition is that people of different religions and beliefs are equal before the law. As such, secularism forms one of the basic categorical and conceptual assumptions that govern the world. What role does secularism have in the governance of religious diversity in an age marked by the assertion of religio-cultural identities across the world? India, with its long history of religious pluralism, a state ideology of secularism, and the ascendancy of Hindu nationalism, is a key site for examining the disposition of secularism towards religious identities and diversity. Secularism and multiculturalism are often seen as opposed in political debates involving religious minorities
India being one of the oldest and most extensive regimes of minority rights in a polity committed to liberal-democratic norms. Interestingly, the same constellation of concepts, those of secularism, democracy, equality and justice, and national unity and development, have been used in all political arguments for and against minority rights in independent India. This is, in a sense, to be expected as secularism, democracy, social justice and national integration have been the goals that of the political agenda of independent India. . Law, enacted for the benefit of the society by conferring rights on the citizens and to regulate social behaviour in many a sphere, is required to be implemented by the law enforcing agencies and the citizens are duty bound to follow the law treating it as sacred
The State, in India, is secular and does not take sides with one religion or other prevalent in our pluralistic society. It has no direct concern with the faiths of the people but is deeply obligated not merely to preserve and protect society against breaches of the peace and violations of public order but also to create conditions where the sentiments and feelings of people of diverse or opposing beliefs and bigotries are not so molested by ribald writings or offence publications as to provoke or outrage groups into possible violent action. Essentially, good government necessitates peace and security. Religion has been the ethereal bond that has tied human beings together since time immemorial. Freedom of religion has always been acknowledged as a fundamental and human right by the liberal and democratic regimes, with an intent to allow the faithful to carry out their faith. It is quite often asserted that the struggle for freedom of religion preceded all other fundamental or human rights originating during the Greek ages.
The Indian Constitution does not specifically define the word religion, It was in the case of PMA Metropolitan v Moran Mar (1952 SCR 1002) the Supreme Court has observed that Religion is a belief which binds spiritual nature of men to super- natural being. It includes worship, belief, faith, devotion et cetera and extends to rituals. Religious right is a right of a person believing in a particular faith to practice it, preach it, profess it.
The Constitution through its Preamble, Fundamental Rights and Directive Principles created secular State based on the principle of equality and non-discrimination striking a balance between the rights of the individuals and the duty and commitment of the State to establish an egalitarian social order. Dr. K.M. Munshi contended on the floor of the Constituent Assembly that "we want to divorce religion from personal law, from what may be called social relations, or from the rights of parties as regards inheritance or succession. What have these things got to do with religion, I fail to understand? We are in a stage where we must unify and consolidate the nation by every means without interfering with religious practices. If, however, in the past, religious practices have been so construed as to cover the whole field of life, we have reached a point when we must put our foot down and say that these matters are not religion, they are purely matters for secular legislation. Religion must be restricted to spheres which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve, as early as possible, a strong and consolidated nation" India's Secular Constitution, the right to freedom of religion was subservient to other fundamental rights - such as the right to equality, the right to non-discrimination, and the right to life with dignity.
Therefore, the right to religion guaranteed under Article 25 or 26 is not an absolute or unfettered right to propagating religion which is subject to legislation by the State limiting or regulating any activity - economic, financial, political or secular which are associated with religious belief, faith, practice or custom. They are subject to reform on social welfare by appropriate legislation by the State. Though religious practices and performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in a particular doctrine, that by itself is not conclusive or decisive.
The Study of Shirur Mutt’s Case [Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt] enunciates the concept of religious freedom. The Supreme Court held..religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. 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, but it would not be correct to say that religion is nothing else, but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress.
Having Understood Right to Religion, let us now dwell into religious practices and its constitutional mandate by the court. A religious practice, which has been carried throughout generations, now presumed to be integral part of the religion. It is true that every person has got the right to profess, practice and propagate their religion (Art 25) but is it at the cost of overriding constitutional principles. The Court, to understand this point, had to distinguish between the practices followed in a religion. If a ritual of a community is practiced and challenged in the court of law as being violative of constitutional principles, the duty was upon the court to determine as to whether such practice is a mere belief or essentially a part of that religion. Is the Practice mentioned in the scriptures or other authentic sources of that particular religion is to be considered. This is called as the Doctrine of essential religious practices test. The doctrine, as the name suggests, tests the validity of certain practices of being essential part. The word 'essential' holds a significant meaning in this doctrine, It differentiates between the practices which constitutes the core of religion and which are not.
In cases where religious norms appear to clash with the overarching constitutional structure, courts in India have chosen to side-step this Gordian knot Rather than engaging in the politically fraught exercise of balancing religious norms vis-à-vis constitutional/state norms, they have developed a threshold criterion to determine which religious norms merit protection to begin. This has been dubbed the Essential Religious Practices (‘ERP’) doctrine; a doctrine whereby legal protection is conferred on matters deemed ‘essential’ to a religion . Applying this threshold criterion has had the unstated advantage of dismissing certain beliefs or practices as unessential, thereby rendering a balancing exercise unnecessary.
Article 25 protected not only the freedom of religious opinion but also acts done in pursuance of religious beliefs as was clear from the expression “practice of religion” used in Art 25. The words “’Right to manage its own affairs in matters of religion’’ in Art 26(b) suggested that there were other affairs of a denomination which were not matters of religion and the question was, where was a line to be drawn? Contrasting Art 26(b) with Art 26(c) and (d) the supreme court said that the contrast showed that no legislature could take away the right of denomination to manage its own affairs in matters of religion, whereas the right to acquire, own and administer property were not matters of religion and could be regulated by valid laws. The term “’religion’’ is not defined in our constitution. Questions have arisen, inter alia, as to what is religion, what are matters of religion, what are the essentials or non-essentials of a religion, what is secular and what is religious, what practices form an integral part of religion and what practices could be excluded as not forming part of a particular religion and what practices could be excluded as not forming part of a particular religion.
In Commr. of Police v. Acharya Jagadishwarananda Avadhuta The Court opined, Though the freedom of conscience and religious belief are absolute, the right to act in exercise of a man's freedom of conscience and freedom of religion cannot override public interest and morals of the society and in that view it is competent for the state to suppress such religious activity which are prejudicial to public interest. That apart, any activity in furtherance of religious belief must be subordinate to the criminal laws of the country. It must be remembered crime will not become less odious because sanctioned by what a particular sect may designate as religious. Thus polygamy or bigamy may be prohibited or made a ground of disqualification for the exercise of political rights, notwithstanding the fact that is in accordance with the creed of a religious body.
The Supreme Court was called upon to resolve such a conflict in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay. The head of the Dawoodi Bohra community challenged the validity of the Bombay Act of 1949 which invalidated all kings of ex-communication on the ground that it contravened his religious freedom under Article 25 and 26. The Supreme Court by a majority invalidated the Act and held that the power of the head of the Dawoodi Bohra to excommunicate its member was matter of religion and was therefore within the protection afforded by the Constitution. But according to dissenting opinion of C.J. Sinha such a power is not a matter of religion and hence the impugned Act was protected under Article 25(2)(b) as a measure of social welfare and reform. There are certain dogmas and exclusionary practices and rituals have resulted in incongruities between the true essence of religion or faith and its practice that has come to be permeated with patriarchal prejudices. Sometimes, in the name of essential and integral facet of the faith, such practices are zealously propagated.
In Sri Venkataramana Devaru v. State of Mysore , the supreme court itself determined whether the practice of religious exclusion of Dalits from a denominational temple founded for Gouda Saraswath Brahmins was essential instead of permitting the religious denominations to do so. Effectively, The Court established that although it would take into account the views of religious community in determining essentiality, such views would not be determinative. This established a precedent which was followed for decades.
The Supreme Court adjudicated several important religious question involving religious practices by test of it’s essentiality. In Hanif Qureshi V. State of Bihar The Court held that slaughtering cow on Bakr-Id is not an essential practice and it was not obligatory to sacrifice a cow only. The Holy scriptures of Islam prescribed sacrifice of a either goat, camel or cow. In Dr. M. Ismail Faruqui V. Union of India The Supreme Court Held that a Mosque cannot be considered as an essential aspect of Islam. The Court opined that Namaz or prayer could be offered from anywhere not necessarily from mosque.
Test to determine whether a part or practice is essential to the religion is - to find out whether the nature of 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. It is such permanent essential parts is what is protected by the Constitution. Nobody can say that 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 where the belief is based and religion is founded upon. It could only be treated as mere embellishments to the nonessential part or practices.
“We describe The Constitution as a living instrument simply for the reason that while it is a document which enunciates eternal values for Indian society, it possesses the resilience necessary to ensure its continued relevance. Its continued relevance lies precisely in its ability to allow succeeding generations to apply the principles on which it has been founded to find innovative solutions to intractable problems of their times.”
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