Reach of Legislature and Judiciary when it comes to Religious Matters by Shaurya Jain

Introduction

India is a secular nation. The concept of Secularism is implicit in the Preamble of the Indian Constitution which guarantees liberty of thought, expression, belief, faith, and worship”. The word ‘Secular’ was inserted by The Constitution (42nd Amendment) Act, 1976[1]. It is well settled that the State protects all religions but interferes with none. Supreme Court opined that “There is no mysticism in the secular character of the State. Secularism is neither anti- god nor pro-god, it treats alike the devout, the antagonistic and the atheist. It eliminates God from the matters of the State and ensures that no one shall be discriminated against on the ground of religion”[2]. Right to religion has been included under Part III of the Indian Constitution as a Fundamental Right but it cannot secure fundamental rights by mere declarations, to make that enforceable a mechanism of judicial review is necessary for their protection. Judiciary has actively protected the religious matters right from Shayara Bano case[3] to Ayodhya dispute. Religion and sentiments attached to that are highly critical and it must be dealt with sensitively. Such an approach of the Parliament and the judiciary has been evident from time to time and both have succeeded in solving the critical issues relating to religion. Both the Parliament and the Judiciary has played an important role in addressing religious issues.

Religion and The Constitution of India

The word religion has not been defined under the Constitution. Religion may 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 an integral part of religion and those forms and observances might extend even to matters of food and dress.[4] Under Part III of the Constitution, Article 25- Article 28 deals with the Right to Freedom of Religion. Article 25 deals with how freedom of religion is given and how it can be curtailed and under what circumstances. Article 25 and 26 are not absolute rights but are subject to some restrictions imposed by the State. Freedom of practice includes the right to give it expression in forms of private and public worship.[5] The restrictions imposed by the Constitution while professing, practicing, and propagating religion are subject to public order, morality, and health. The object and purpose of enacting Article 26 are to protect the rights conferred therein on a ‘religious denomination’ or a section thereof. However, the rights conferred under Article 26 are subject to public order, morality, and health and not subject to any other provision of Part III of the Constitution as the limitation has been prescribed by the lawmakers under Article 25.[6] Constitutional morality, appositely understood, means the morality that has inherent elements in the constitutional norms and the conscience of the Constitution.[7] The state has the power to regulate religious practices. Parliament has passed several legislations to regulate the freedom of religion and its practices. Religion is governed by their laws and the legislature has the power to control those affairs.

A distinction must be made between religious practices, beliefs, and faith.[8] Both the State Legislature and the Central legislature has the power to make Acts and Rules regarding religious matters.

Religion and The Judiciary

The Indian judiciary plays an inevitable part concerning religious matters. One of the main evolvement is the Essential Religious Practice Test[9] which evolved in the Shirur Mutt case.[10] In one of the cases, it was held by the court that Articles 25 and 26 provide only essential and integral parts of religious immunity from state intervention. It also stated that no immunity would be provided to superstitious, peripheral, and unnecessary religious practices.[11] While deciding various cases, the judiciary has had held that cow slaughter[12], Tandava dance performed by Ananda Margis[13] and non- entry of women into religious temple[14] does not form an integral part of the religion. The regulation of administration and governance of the religious institutions or endowments would amount to a restriction on the religious practices or freedom of religion, since establishment, maintenance and administration of the religious institutions and endowments are intertwined with the very religious faith itself.[15]

The Judiciary recently in the Sabarimala Temple case, where the women of the menstrual age of between 10-50 years of age was restricted from an entry in the temple as it was claimed that the Lord Ayyapa is a celibate, the Supreme Court held and removed the restrictions which were imposed declaring that Hindu old practice to be illegal and unconstitutional via violating the fundamental rights (Article 14 and 25)[16]. The Judiciary in religious matters while giving directions for the Muslim women to enter into the mosques through the main door and to have the right to access to ‘musalla’ upheld that judiciary is impartial in the matters of religion and the State is a secular nation as the practice was unconstitutional and void (violating Article 14, 15, 21 and 25)[17] . It is true that the decision as to whether a certain the practice is a religious practice or affair indulged is a religious affair or not, may present difficulties sometimes as practices, religious and secular, are inextricably mixed up in most of the cases. In the court of law, when the issue came that a Parsi woman was denied the entry to the Tower of Silence after marrying a Hindu raised an issue of gender inequality, the Apex Court held that marrying to someone’s else religion does not surrender her affection towards her father and it amounts to gender discrimination.[18]

Female Gentile Mutation or khatna is a custom followed on every girl child in the Dawoodi Bohra Community where the female gentile area is cut for the sake of purification of women and to control sexual desire of the women and the religions are providing active support for this practice. The practice was called to question in the court of law in the Sunita Tiwari case. It is urged to be unconstitutional and should not be available for freedom of religion. What kind of health benefits this custom has it is necessary to investigate and if no such benefits are there then performing Khatana must be banned in the Muslim community. The case is still pending in the court for its final verdict.[19] The judiciary protects every religious belief and removes any arbitrary action. Recently, the judiciary in the Ayodhya Dispute[20] has given its landmark judgment upholding both Hindus and Muslim beliefs at the same time by providing harmonious construction between both. Supreme Court has granted the 2.77 an acre of disputed land of Ayodhya to Lord Ram Lalla. The Court has also directed the Centre and Uttar Pradesh government to allot an alternative 5-acre land to the Muslims at a prominent place to build a mosque. The court also said that the faith of the Hindus that Lord Ram was born at the disputed site where the Babri Masjid once stood cannot be disputed.[21]

Conclusion

India is a secular state, there are different religions all over the country which are being practiced. It is a challenge for the state to respect and accommodate every individual’s religious protection. The state is under an obligation to take steps in bringing social welfare and reforms. Judiciary being the guardian of the Constitution protects the fundamental rights. Some of the prominent justices are of the view that “ Judicial review of religious practices ought not to be undertaken, as the court cannot impose its morality concerning the form of worship of a deity. Doing so would negate the freedom to practice one’s religion according to one’s faith and belief, which is outside the ken of courts”.[22] The court in its recent ruling also on the issue of triple talaq case[23] succeeded in creating a harmonious culture by the way of the constitution under secularism. The preamble of the constitution expressly states “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN The SOCIALIST SECULAR DEMOCRATIC REPUBLIC”. Secularism is the basic structure of the constitution.[24] The judiciary and the legislature both have constantly been upholding the religious matters to stabilize the harmony and avoid conflicts between the religions. And most importantly a distinction must be drawn between the religious and secular acts and the courts should focus on that they do not indulge much on the religious freedom granted to the people of India.

References

[1] 1 http://legislative.gov.in/constitution-forty-second-amendment-act-1976 ( last visited on 18th April 2020)

[1] 2 St. Xavier’s College v. the State of Gujarat, AIR 1974 SC 1389 at pg.no. 1414

[1] 3 Shayara Bano v. Union of India, AIR 2017 SC 4609

[1] 4 S.P. Mittal v. Union of India, AIR 1983 SC 1

[1] 5 The Commissioner. H.R.E v. LakshmindraThirtha Swamiar,(1954) S.C.R. 1005

[1] 6 Dr. Subramanian Swamy v. State of Tamil Nadu, AIR 2015 SC 460, Lexis Nexis, The Constitution of India, Universal Law Publishing Co, Bare Act, 2020 edition, page no. 17

[1] 7 Government of NCT of Delhi v. Union of India, (2018) 8 SCC 501

[1] 8 State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84, it held that What the state protects is religious faith and belief. If the religious practices run to counter to public order, morality or health or a policy of social welfare upon which the state has embarked, then the religious practices must give away before the good of people of the state as a whole.

[1] 9 The essential religious practice test is a contentious doctrine evolved by the court to protect only such religious practices which were essential and integral to the religion, https://www.drishtiias.com/daily-updates/daily-news-editorials/supreme-court-on-religious-practices ( last visited on 15th April 2020)

[1] 10 The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Tirtha Swamiyar of Shri Shirur Mutt, AIR 1954 SC 282

[1] 11 Durgah Committee v. Hussain Ali, AIR 1961 SC 1402

[1] 12 Mohammad Hanif Qureshi v. State of Bihar, AIR 1958 SC 731

[1] 13 Commissioner of Police v. Acharya Jagdishwaranand Avadhuta, (2004) 12 SCC 470

[1] 14 Indian Young Lawyers Association v. The State of Kerala (2018)

[1] 15 Pannalal Bansilal Pitti & Ors. Etc v. State Of Andhra Pradesh & Anr, 1996 SCC (2) 498

[1] 16 Supra note 13

[1] 17 Yasmeen Zuber Peerzade case

[1] 18 Goolrukh Gupta vs Burjur Pardiwala, SLP(C) 18889/2012

[1] 19 Sunita Tiwari vs Union of India and Ors, WRIT PETITION (CIVIL) NO.286 of 2017(Supreme Court, 24/09/2018)

[1] 20 M Siddiq (D) Thr Lrs v. Mahant Suresh Das & ors

[1] 21 https://www.indiatoday.in/india/story/ayodhya-ram-mandir-case-supreme-court-judgment-top-10-highlights-1617304-2019-11-09 ( last visited on 18th April 2020)

[1] 22 https://timesofindia.indiatimes.com/india/judiciary-must-not-interfere-in-matter-of-religious-faith-sentiment-justice-Indu-Malhotra/articleshow/65997571.cms (last visited on 15th April ,2020)

[1] 23 Shayara Bano v. Union of India, 2017 (9) SCALE 178: Writ Petition (C) No 118 of 2016 ( decided on 22^nd August 2017)

[1] 24 S.R Bommai v. Union of India, 1994 SCALE(2) 37

 

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1 http://legislative.gov.in/constitution-forty-second-amendment-act-1976 ( last visited on 18th April 2020)
2 St. Xavier’s College v. the State of Gujarat, AIR 1974 SC 1389 at pg.no. 1414
3 Shayara Bano v. Union of India, AIR 2017 SC 4609
4 S.P. Mittal v. Union of India, AIR 1983 SC 1
5 The Commissioner. H.R.E v. LakshmindraThirtha Swamiar,(1954) S.C.R. 1005
6 Dr. Subramanian Swamy v. State of Tamil Nadu, AIR 2015 SC 460, Lexis Nexis, The Constitution of India, Universal Law Publishing Co, Bare Act, 2020 edition, page no. 17
7 Government of NCT of Delhi v. Union of India, (2018) 8 SCC 501
8 State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84, it held that What the state protects is religious faith and belief. If the religious practices run to counter to public order, morality or health or a policy of social welfare upon which the state has embarked, then the religious practices must give away before the good of people of the state as a whole.
9 The essential religious practice test is a contentious doctrine evolved by the court to protect only such religious practices which were essential and integral to the religion, https://www.drishtiias.com/daily-updates/daily-news-editorials/supreme-court-on-religious-practices ( last visited on 15th April 2020)
10 The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Tirtha Swamiyar of Shri Shirur Mutt, AIR 1954 SC 282
11 Durgah Committee v. Hussain Ali, AIR 1961 SC 1402
12 Mohammad Hanif Qureshi v. State of Bihar, AIR 1958 SC 731
13 Commissioner of Police v. Acharya Jagdishwaranand Avadhuta, (2004) 12 SCC 470
14 Indian Young Lawyers Association v. The State of Kerala (2018)
15 Pannalal Bansilal Pitti & Ors. Etc v. State Of Andhra Pradesh & Anr, 1996 SCC (2) 498
16 Supra note 13
17 Yasmeen Zuber Peerzade case
18 Goolrukh Gupta vs Burjur Pardiwala, SLP(C) 18889/2012
19 Sunita Tiwari vs Union of India and Ors, WRIT PETITION (CIVIL) NO.286 of 2017(Supreme Court, 24/09/2018)
20 M Siddiq (D) Thr Lrs v. Mahant Suresh Das & ors
21 https://www.indiatoday.in/india/story/ayodhya-ram-mandir-case-supreme-court-judgment-top-10-highlights-1617304-2019-11-09 ( last visited on 18th April 2020)
22 https://timesofindia.indiatimes.com/india/judiciary-must-not-interfere-in-matter-of-religious-faith-sentiment-justice-Indu-Malhotra/articleshow/65997571.cms (last visited on 15th April ,2020)
23 Shayara Bano v. Union of India, 2017 (9) SCALE 178: Writ Petition (C) No 118 of 2016 ( decided on 22nd August 2017)
24 S.R Bommai v. Union of India, 1994 SCALE(2) 37

About Author

I am Shaurya Jain, student of GLA University, Mathura. I have always been passionate about writing stuff and have also continued it by writing blogs that led me to start getyourlegal.com. I believe you must bring your whole self to the table if you want to thrive in today’s crazy world; your personality, your sense of humour, and most importantly, your heart. 

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