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The Conflict Between Religious Norms and Individual Liberty

Written by Kabir Harpalani

Fourth Year, BBA. LLB. Amity Law School, Noida, Uttar Pradesh





Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.


"Religion is not in doctrines, in dogmas, nor in intellectual argumentation; it is being and becoming, it is realization."

Swami Vivekananda

The Constitution of India provides the right to Freedom of Religion to every citizen under Article 25 (1) of the Constitution. It is considered the third most important civil liberty after the right to life and personal liberty under Article 21 and the right to freedom of speech and expression under Article 19. However, the conflict between religious freedom and individual liberty has been a long-standing battle in front of the Indian judiciary, and owing to a religiously centric society of our country, the relationship between religious freedom and individual liberty has always remained ambiguous.

The Judiciary has always been in a difficult position while creating a proper balance between religious freedom and individual liberty. India is a country with ethnic inclusiveness and adopts a cross-culturalism theory of existence in a society, where different communities – whether religious or cultural, have played a key role in the development of the society. Owing to the cross-culturalism theory, the Constitution of India recognizes Article 25 and also adds Article 26 which provides that the religious groups have the right to manage their own affairs in matters of religion. [1]

On the other hand, the Constitution of India also recognizes that while communities can be a source of togetherness and unity, it can also be a ground of disharmony and ostracism. Therefore, both Articles 25 and 26 are subject to public order, morality and health and also to other fundamental rights mentioned in Part III of the Constitution.

A prime example of this ambiguous relationship is the practice of the ‘Bani’ festival in Kurnool, Andhra Pradesh which falls during the popular festival Dussehra, wherein devotees hit each other with swords throughout the night. The medical staff and police personnel can be found on standby throughout the night for obvious reasons. Another example is the festival of ‘Thaipusam’ in Tamil Nadu which involves an extensive fast for 48 days, after which devotees pierce their bodies with lances, skewers, and hooks. People can be seen on roads pulling heavy objects, even tractors with the hooks on their skin. [2]

The Hon’ble Supreme Court in ‘Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Theertha Swamiar, Shirur Mutt[3] developed a ‘Doctrine of Essentiality’ which said that the term religion will cover all practices and rituals which are essential to religion and took upon the responsibility of determining the essential and non-essential practices of a religion. Quoting the learned Supreme Court:

“In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be a daily recital of sacred texts or ablations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve the expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious. practices and should be regarded as matters of religion within the meaning of Article 26(b).”

However, the problem with this doctrine is that it is a very judiciary-centric doctrine and gives arbitrary powers to the judge as to what is an essential practice in religion and what is not an essential practice. As a result of this doctrine, the courts have been in a conflict time and again as some judges rely on the scriptures and texts of the specific religion, others rely on whether the practice is essential to the concept of faith and belief, thereby not following any uniform approach. In the words of Justice D.Y. Chandrachud – ‘The doctrine of essentiality is a problem with our jurisprudence and Article 25 has been taken over by this doctrine which will be a problem for the constitutional courts.’

The decision passed by the Constitution Bench of the Hon’ble Supreme Court in ‘Dr M Ismail Farooqui and Ors. v. Union of India and Ors [4] dealt with the question of ‘acquisition of religious place by the state.’ The court held that while the offer of prayer is a religious practice, it’s offering at every location where such prayers could be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion.

Therefore, offering Namaz at a mosque is not an essential practice unless the mosque has a particular significance in Islam. Thereafter, the Muslim devotees wanted the decision to be referred to a larger bench saying that mosques cannot be separated from Islam. According to the author, the Apex court in this decision ignored the diversity and secularism of the country and the very belief and faith of the Muslim devotees regarding their place of worship as a place of worship brings the community together and acts as a door to collective communication with god, just like any other religion.

On the other hand, the Apex Court used the same test in the case of ‘State of West Bengal v. Ashutosh Lahiri [5] to decide whether slaughtering of cows on Bakri-Eid fulfills the ‘Doctrine of Essentiality’. The Court was of the opinion that neither the Quran nor the Hidaya mandates a cow slaughter, rather the Islamic texts allow a goat to be sacrificed instead. Therefore, according to the Court, a total ban on cow slaughter would not infringe the right to religious freedoms for the Muslim community under Article 25 of the Constitution.

The ‘essential religious practices’ test has also been referred to in the case of Indian young lawyers Association and Ors vs State of Kerala and ors[6], in which this test has been criticized. Quoting the learned Supreme Court:

“The assumption by the court of the authority to determine whether a practice is or is not essential to religion has led to our jurisprudence bypassing what should in fact be the central issue for debate. That issue is whether the Constitution ascribes to religion and to religious denominations the authority to enforce practices that exclude a group of citizens. The exclusion may relate to prayer and worship but may extend to matters which bear upon the liberty and dignity of the individual. The Constitution does recognize group rights when it confers rights on religious denominations in Article 26. Yet the basic question which needs to be answered is whether the recognition of rights inhering in religious denominations can impact upon the fundamental values of dignity, liberty, and equality which animate the soul of the Constitution.”

Accordingly, there would be a two-stage test in adjudicating religious freedom claims. In the first stage, as mentioned, the courts should accept a group's self-definition, except in extreme cases where there is clearly a lack of sincerity, fraud, or ulterior motive. At the second stage, the courts should apply a balancing, compelling reason inquiry, or proportionality analysis to determine whether the religious freedom claim is outweighed by competing state or public interest.

Although it can be said that the Doctrine of Essentiality has also helped in eliminating several social evils, namely Triple Talaq, issue of maintenance for Muslim women under the Shah Bano judgment, ban on animal sacrifice in temples, however, the ages-old doctrine has also led to the violation of fundamental and human rights on the name of essential religious practices and religious freedom. Instead, the test should be whether the religious practice conforms with the fundamental rights mentioned in the Constitution and not if it is essential to the religion.


The Doctrine of Essentiality should not take charge of Article 25 and other fundamental rights, instead the religious practice should pass the test of constitutional morality irrespective of whether it is essential or not. As the Constitution is the grundnorm, it certainly stands at a pedestal above any religious practice.

[1] Article 26, Constitution of India, 1950 [2] https://www.scmp.com/lifestyle/travel-leisure/article/3048074/no-pain-how-extreme-body-piercing-thaipusam-hindu-festival [3] (1954) 1 SCR 1005 [4] (1994 (6) SCC 360 [5] (1995) 1 SCC 189 [6] (2019) 11SCC1



Bibliography

  1. Dr. NV Paranjape, Indian Legal and Constitutional History, Editon 6 (2013)

  2. BYU Law Review, Freedom of Religion in India: Current issues and Supreme Court acting as clergy, Volume 2017 (Issue 4)

  3. Gerald James, Larson, Religion and Personal Law in Secular India, 2001

  4. Ronojoy Sen, Article of Faith: Religion, Secularism, and the Indian Supreme Court

  5. Abhik Chimni, ‘The question of religious freedom and law in India’(The Citizen, 15th October 2016) https://www.thecitizen.in/index.php/en/NewsDetail/index/1/8966/The-Question-Of-Religious-Freedom-And-The-Law-In-India

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