CONSTITUTIONAL SENTIMENTS AND JUDICIARY – A STUDY ON

FREEDOM OF RELIGION IN INDIA

CONSTITUTION OF INDIA provides for freedom of religion to all persons, the effect of it has
been rightly observed by Donald Eugene Smith as he writes:

“Freedom of religion means that the individual is free to consider and to discuss with others the
relative claims of differing religions, and to come to his decision without any interference from
the state. He is free to reject them all. If he decides to embrace one religion, he has freedom to
follow its teachings, participate in its worship and other activities, propagate its doctrines, and
hold office in its organizations. If the individual later decides to renounce his religion or to
embrace another, he is at liberty to do so.”

it is important to note that unlike other articles of the Part III of the Constitution, articles 25 and
26 of the Constitution of India starts with limitation first and then articulates the rights. Perhaps
the reasons may be - A citizen of India is a citizen of India first and a Hindu, Muslim, Christian,
Sikh, Parsi, Jain or Buddha thereafter. Further, P.K Tripathi writes that the scheme of precedence
adopted by the articles only indicate unmistakably the salutary principle of our constitutional
philosophy in this regard, namely, the principle of giving primacy to the individual, placing him
before and above religion, and recognizing freedom of religion only as incidental to his well
being and liberty.

Under the constitutional scheme, in between citizen and religion, for state citizen matter and
religion comes thereafter. State is primarily concerned with the well being of its citizens;
therefore, subjecting the freedom of religion to some well identified limitation is the
manifestation of the constitutional commitment of the state. Judiciary, as an important limb of
the state and having entrusted with the duty of protecting the rights of the citizens, from time to
time has involved in rigors interpretations of the constitutional provisions of freedom of religion
enshrined under part III of the Constitution. On this one of the renowned scholars of
constitutional law of this country has identified the constitutional duty of higher judiciary.
However, judicial approach over religious freedom attracts severe criticism from the scholars.
The Constitution looked to the future with a commitment to social reform and change. Therefore;
the judicial role becomes vocal and important. Nonetheless, the fundamental question always
remains unanswered as to the permissible limit of judicial hands in bringing social reform and
change. Touching upon this aspect, Kerala high court has made a pertinent observation:

Courts interpret law and evolve justice on such interpretation of law. It is in the domain of the
legislature to make law. Justice has become elusive for Muslim women in India not because of
the religion they profess, but on account of lack of legal formalism resulting in immunity from
law.

Article 25 (1) of the Constitution of India guarantees the individual’s right to freedom of
religion. The exercise of this freedom, however, is made explicitly subject to public order,
morality, and health and to the other provisions of Part III of the Constitution, which lay down
the fundamental rights. Exercise of religion means the performance of acts in pursuance of one’s
religious tenet. In India the limitations laid on the exercise of religious freedom is really very
emphatic. The Constitution of India does not presume that beliefs that are religious deserve
absolute protection. Clause (1) of Article 25, therefore, begins with a number of safeguards. The
right to religious freedom may be exercised only under these conditions. These are substantial
conditions. Commenting on the provision protecting religious freedom under article 25 of the
Constitution, Shri K. Santhanam remarked in the Constituent Assembly: “Hitherto it was thought
in this country that anything in the name of religion must have the right to unrestricted practice
and propagation. But we are now in the new Constitution restricting the right only to that right
which is consistent with public order, morality and health”. The Courts in India on various
occasions interpreted the scope of freedom guaranteed to religion that reflects the mind of the
framers of the Constitution. The Bombay High Court held in one of the cases that article 25
provided to all persons the right to freedom of religion. But the Court reiterated that this “right is
not an absolute or unlimited right. In the first place, it is subject to public order, morality and
health. Secondly, it is subject to other provisions of Part III”. In another case the Supreme Court
of India ruled that article 25 of the Constitution guaranteed to every person freedom of religion.
But the Court emphasized: This is subject, in every case, to public order, health and
morality…Subject to the restrictions which this article imposes, every person has a fundamental
right under our Constitution…to entertain such religious beliefs as may be approved by his
judgment or conscience.

Case laws:

The Commissioner, Hindu Religious Endowments, Madras

Vs.
Shri Lakshmindar Tirtha Swamiyar of Shri Shirur Mutt
(​Equivalent citations: 1961 AIR 1402, 1962 SCR (1) 383)

The test of Essential Religious Practices was first laid forth by the Supreme Court in 1961 in the
Shirur Mutt case. A 7 Judge Bench of the Supreme Court held that ​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 daily recital of sacred texts or
oblations to the sacred fire, all these would be regarded as parts of religion and the mere fact that
they involve 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​). What Article 25(2)(​a)​ contemplates is not
regulation by the State of religious practices as such, the freedom of which is guaranteed by the
Constitution except when they run counter to public order, health and morality but regulation of
activities which are economic, commercial or political in their character though they are
associated with religious practices.
Sardar Sarup Singh & Ors. Vs. State of Punjab & Ors.
(Equivalent citations: 1959 AIR 860, 1959 SCR Supl. (2) 499)

In this case, Section 148-B of the Sikh Gurdwaras Act, 1925 was challenged before the Court.
The impugned section/provision provided for the setting up of a Gurdwara Board and introduced
new members. The petitioners’ contention was that Sec. 148-B infringes Article 26(b) of the
Constitution, which grants every religious denomination the right to manage its own affairs in
matters of Religion, for it does not allow for direct elections of members of the Board by the
Sikh Community. The argument advanced by the State of Punjab was ​that matters of religion in
the sense of essential beliefs and practices of the Sikh faith are left untouched by Section 148-B,
and even other relevant sections of the principal Act do not interfere with Sikh religion.
Applying the test of essential religious practices, a 5 Judge Bench of the Supreme Court upheld
the constitutionality of Section 148-B. It was observed that no authoritative text had been placed
before the Court to show that direct election by the entire Sikh Community to the Gurdwara
Committees in charge of the management was essential to the religion itself. Section 148-B
provided a method of representation for the extended areas during the interim period and such
arrangement was dictated merely by considerations of convenience and expediency, and does
involve any principle of religion.
Dargah Committee, Ajmer & Anr. vs. Syed Hussain Ali & Ors.
(Equivalent citations: 1961 AIR 1402, 1962 SCR (1) 383)

The challenge to the vires of the Dargah Khwaja Saheb Act, 1955 provided the Court with
another opportunity to apply the test of essential religious practices. The Act, it was argued, took
away the fundamental rights of Muslims belonging to the Soofi Chishti Order, for it was to them
alone who were the sole custodians and caretakers of the shrine at Ajmer. The impugned Act,
however, permitted all Hanafi Muslims, even those not belonging to the Soofi Chishti Order to
partake in the maintenance and affairs of the Dargah.
The Court rejected the challenge to the Dargah Act observing that ​the pilgrims travelling to the
tomb included persons from all walks and religions who visited the tomb out of devotion for the
memory of the departed saint and had at no point in time been confined to members of the Soofi
Chishti Order. It was therefore, this large cosmopolitan circle of pilgrims which should in law be
held to be the circle of beneficiaries of the endowment made to the tomb. The Court further held
that in order that 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 an integral part of religion are apt to be clothed with a
religious form and may make a claim for being treated as religious practices within the meaning
of Article 26. Similarly, even practices though religious may have sprung from merely
superstitious beliefs and may in that sense be extraneous and unessential accretions to religion
itself. The protection must be confined to such religious practices as are an essential and an
integral part of it and no other.

Sardar Syedna Taher Saifuddin Saheb vs. State of Bombay

(Equivalent citations: 1962 AIR 853, 1962 SCR Supl. (2) 496)

The Essential Religious practices test was applied in the present case to determine whether the
Bombay Prevention of Excommunication Act, 1949 violated the fundamental rights under
Articles 25 and 26 of the Dawoodi Bohra Community. The Head Priest of this community was
vested with certain powers, one of which included the power of excommunication, which was to
be exercised in accordance with the tenets of the community. Such power, it was argued, was
integral to the religious faith and beliefs of the Dawoodi Bohra Community which was a
religious denomination under Article 26 of the Constitution.

With a 4:1 majority, the 5 Judge Bench of the Supreme Court upheld the right and power of
excommunication bestowed upon the Head Priest of the Dawoodi Bohra Community. It was
further observed that what constitutes an essential practice is to be gathering from the texts and
tenets of the religion. Having regard to the social aspects of excommunication, the legislature
however was not permitted to reform a religion out of existence or identity.​

Tilkayat Shri Govindlaji Maharj vs. State of Rajasthan

In a challenge to the Nathdwara Temple Act, 1959 enacted by the State of Rajasthan by the
Tilkayat, the question before the Court was whether the tenets of the Vallabh denomination and
its religious practices restricted worship to private temples managed by the Tilkayat alone? If so,
would an Act enacted for the management of the Temple would be ultra vires the Constitution in
view of Article 25.
​It was held that a practice is considered essential to a religion if it is essential to the community
following the religion. Furthermore, Article 25(1) and 26(b) offer protection to religious
practices and such affairs, which are purely secular in nature, may be regulated by Statute
without infringing the aforesaid articles. ​In order that 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 an integral part of religion
are apt to be clothed with a religious form and may make a claim for being treated as religious
practices within the meaning of Article 26.

Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi & Ors. vs. State
of UP & Ors
(Equivalent citations: (1997) 4 SCC 606)
Upholding the validity of the U.P. Sri Kashi Vishwanath Temple Act, 1983, the court drew a
distinction between the religious and secular functions of the Temple. The impugned Act, it was
held, only pertained to the latter, i.e. the secular functions of administration and management of
the Temple. These were not essential or intrinsic elements to the practice of the religion and the
Legislature was thus competent to enact a law that did not entrust the Government with the
power to interfere with the day-to-day religious practices.
Commissioner of Police & Ors. Vs. Acharya Jagadisharananda Avadhuta &
Anr.
(​Appeal (civil) 6230 of 1990)

The Court applied the test of essential religious practices in deciding whether the Tandava Dance
was an essential rite of the Ananda Marga Faith as held by the High Court. The Ananda Marga
Faith though founded in 1955, the Tandava dance was introduced to its followers in 1966 and
was prescribed as in essential religious practice in the Carya Carya in 1986.

The Court in its majority opinion held that the Tandava Dance was not an essential practice of
the Ananda Marga faith. It was further observed that an essential part of a religion means the
core beliefs on which the religion is founded and those practices which are fundamental to the
followers of the religion. In order to determine whether or not a particular practice is an essential
part of religion, the test must be whether the absence of the practice itself fundamentally alters
the religion. ​The protection guaranteed under Articles 25 and 26 of the Constitution is not
confined to matters of doctrine or belief but extends to acts done in pursuance of religion and,
therefore, contains a guarantee for rituals, observances, ceremonies and modes of worship which
are essential or integral part of religion.

Adi Saiva Sivachariyargal Nala Sangam& Ors. vs Government of Tamil

Nadu

[(2016) 2 SCC 725]

An amendment to the Tamil Nadu Hindu Religious and Charitable Endowments in 1970
abolished the practice of appointing religious office holders on a hereditary basis and the
constitutionality of this Amendment was upheld by the Court in 1972 in the Seshammal Case.
However, in 2006, a government order was issued directing that Archakas of the temples were to
be appointed without any discrimination stemming from customs on the basis of caste or creed.
This Government order was then challenged on account violation of religious freedom under
Article 25 by interfering in essential matters of the denomination of Archakas. Relying on the
decision in Seshammal, the Court reiterated that though appointment was a secular function, the
denomination of the Archakas must be in accordance with the Agamas. ​The Agamas restricted
the appointment of Archakas to particular religious denominations. Archakas are required to be
appointed as per the Agamas and this embodies a long-standing belief that has come to be firmly
embedded in the practices immediately surrounding the worship of the image and therefore such
beliefs/practice constitute an essential part of the religious practice. The right to equality of
opportunity under article 16(5) is not violated if a religious office-bearer is required to belong to
a particular religion or denomination as per the essential tenets of such religion. However, the
Court did go on to hold that religious treatise like the Agamas must conform to the constitutional
mandate and not practice exclusion on the basis of constitutionally prohibited criterion like Caste

Shayara Bano vs. Union of India

(Writ Petition (C) No. 118 of 2016.)
The Triple Talaq verdict of the 5 Judge Bench is the most recent decision of the Supreme Court
which makes reference to the test of essential religious practice. Rejecting the argument that the
practice of Talaq-e-Biddat or Triple Talaq was essential practice under Islam, the Court, in its
majority opinion held that the same was not an essential practice and could not be offered
constitutional protection under article 25 of the Constitution. It is against the basic tenets of the
Quran and thus violative of the Shariat. A practice that is merely permitted or not prohibited by a
religion cannot be considered an essential or positive tenet sanctioned by that particular
religion. ​Triple Talaq is only a form of talaq which is permissible in law, but at the same time,
stated to be sinful by the very Hanafi School which tolerates it. Therefore, this would not form
part of any essential religious practice as the fundamental nature of the Islamic religion, as seen
through an Indian Sunni Muslim's eyes, will not change without this practice.
Indian Young Lawyers Association and Ors. Vs. The State of Kerala and Ors.
(WRIT PETITION (CIVIL) NO. 373 OF 2006)

The Court delivered its verdict in the Sabarimala Temple Entry​. A 4:1 majority held that the
temple's practice of excluding women is unconstitutional. It held that the practice violated the
fundamental right to freedom of religion - Article 25(1) - of female worshippers. It struck down
Rule 3(b) of the Kerala Hindu Places of Public Worship Act as unconstitutional. Rule 3(b)
allowed for Hindu denominations to exclude women from public places of worship, if the
exclusion was based on 'custom'.

The Court delivered four separate opinions: Chief Justice Misra, Justice Nariman, Justice
Chandrachud, and Justice Malhotra. Justice Nariman & Justice Chandrachud concurred with the
opinion of Chief Justice Misra. The dissenting opinion in the case was delivered by Justice Indu
Malhotra.

Chief Justice Misra's opinion

CJI Dipak Misra, speaking on behalf of Khanwilkar J. & himself observed that religion is a way
of life intrinsically linked to the dignity of an individual and patriarchal practices based on
exclusion of one gender in favour of another could not be allowed to infringe upon the
fundamental freedom to practice and profess one's religion. He stated that the exclusion of
women between the ages of 10-50 years practiced by the Sabarimala Temple denuded women of
their freedom of worship, guaranteed under Article 25(1).

Further, he held that the devotees of Ayyappa did not pass the constitutional test to be declared a
separate religious identity. He said that they are Hindus. Thus he held that the temple's
denominational right to manage its own internal affairs, under Article 26(b), was subject to the
State's social reform mandate under Article 25(2) (b). Article 25(2) (b) provides that the State
can make laws to reform Hindu denominations. Specifically, Article 25(2) (b) allows the State to
make any law that opens a public Hindu institution to all ​'​classes and sections​' of Hindus. Justice
Misra interpreted ​'c​ lasses and sections​' to include the gendered category of women. He
concluded that the Sabarimala custom of excluding women is subject to State mandated reform.

He also held that the exclusion of women between ages 10-50 by the Sabarimala Temple cannot
be an essential religious practice. He held that if the Ayyappana​ a​ re Hindus, the practice of
excluding women cannot be held to be an essential religious practice.

He struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry)
Rules of 1965. He said that is both in violation of the Constitution and ultra vires to Sections 3
and 4 of its parent Act. Sections 3 and 4 of the Act were written with the specific aim of
reforming public Hindu places so that they become open to all sections of Hindus. Rule 3(b)
achieves the opposite -- it allows public Hindu places of worship to exclude women on the basis
of custom. Hence, CJI Misra concluded that the rule not only violates the Constitution, but also
stands in conflict with the intention of the parent Act.

Justice Nariman's opinion:

Justice Rohinton Nariman delivered a concurring opinion. He held that the worshippers of
Ayyappa do not constitute a separate religious denomination. He labeled them as Hindus who
worship the idol Ayyappa. Thus he held that the Sabarimala Temple's denominational freedom
under Article 26 is subject to the State's social reform mandate under Article 25(2)(b).

He declared that the exclusion of women from the temple effectively rendered their right under
Article 25 meaningless. He emphasized that Article 25(1) protects the fundamental right of
women between the ages of 10-50 years to enter the Sabarimala Temple and exercise their
freedom of worship. He stated that there was sufficient material to conclude that the exclusion of
women from Sabarimala violated Article 25(1).

He concluded that the ​Ayyappana​ custom of excluding women, between the ages of 10-50
years, from the Sabarimala Temple was unconstitutional. He also struck down Rule 3(b) of
the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules of 1965 as
unconstitutional.
Justice Chandrachud's opinion:

In a separate and concurring opinion, Justice D Y Chandrachud held that the exclusion of women
between the ages of 10-50 years by the Sabarimala Temple was contrary to constitutional
morality and that it subverted the ideals of autonomy, liberty, and dignity. He held that the
morality conceptualized under Articles 25 and 26 of the Constitution cannot have the effect of
eroding the fundamental rights guaranteed under these Articles. Justice Chandrachud concurred
with the opinions delivered by CJI Dipak Misra & Justice Nariman to hold that
the Ayyappana​,​ or worshippers of Lord Ayyappa, did not satisfy the judicially enunciated
requirements to be considered a separate religious denomination. He held that the exclusion was
not an essential religious practice.

Justice Chandrachud further emphasized that physiological characteristics of women, like

menstruation, have no significance or bearing on the entitlements guaranteed to them under the
Constitution. The menstrual status of a woman cannot be a valid constitutional basis to deny her
the dignity and the stigma around the same had no place in a Constitutional order. Significantly,
Justice Chandrachud also dealt with the argument that the exclusion was a form of untouchability
prohibited under Article 17 of the Constitution. He observed that a perusal of the Constituent
Assembly Debates would show that the makers of the Constitution had deliberately chosen to not
give the term untouchability a specific meaning. He concluded that this was to ensure that it was
not understood in a restrictive manner and must therefore be given an expansive meaning. He
further held that Article 17 is a powerful guarantee against exclusion and cannot be read to
exclude women against whom social exclusion of the worst kind has been practiced and
legitimized on notions of purity and pollution.

​Justice Malhotra's dissenting opinion:

Justice Indu Malhotra​ ​delivered a dissenting opinion. She argued that constitutional morality in a
secular polity, such as India, requires a 'harmonization' of various competing claims to
fundamental rights. She said that the Court must respect a religious denomination's right to
manage their internal affairs, regardless of whether their practices are rational or logical.

She held that the Sabarimala Temple satisfies the requirements for being considered a separate
religious denomination. She therefore held that the Sabarimala Temple is protected under Article
26(b) to manage its internal affairs and is not subject to the social reform mandate under Article
25(2)(b), which applies only to Hindu denominations. Note that Article 26, denominational
freedom of religion, is subject to ​'​public order, morality and ​health​'​. Justice Malhotra held that
'morality' (constitutional morality) must be understood in the context of India being a pluralistic
society. She stated that the State must respect the freedom of various individuals and sects to
practice their faith.

She held that the fundamental right to equality guaranteed to women under Article 14 cannot
override Article 25, which guarantees every individual the right to profess, practice and
propagate their faith.

She held that Rule 3(b) does not stand in conflict with its parent Act, the Kerala Hindu Places of
Public Worship Act. She emphasized that the rule ​'​carves out an exception in the case of public
worship​'.​ She held that the rule was consistent with Article 26(b) of the Constitution.
She dismissed the argument that the Sabrimala custom violates Article 17 of the Constitution.
Article 17 pertains to untouchability and prohibits discrimination on the basis of impurity.
She stated that, in the context of the Article and the Constitution in general, untouchability refers
to caste and does not extend to discrimination on the basis of gender. Like Justice Chandrachud,
she referred to the Constituent Assembly Debates to establish how the founder intended to use
the term untouchability. Unlike Justice Chandrachud, she concluded that untouchability does not
extend to gender.
Conclusion:

In India under a secular set up, it is always a challenge for the state to accommodate vast
diversities of religion affecting the entire life of individuals and particularly when religious
freedom is accorded a fundamental protection. People professing different faiths, always inclined
to take recourse to their personal law in most of their matters on account of their deep rooted
religious identity; this certainly aggravates the challenge before the state. Therefore, the state is
required to take stringent steps consistent with constitutional norms in bringing social welfare
and reform. For the state, citizens matter not their religious affiliations or associations. If the
state fails to do so, in a way it is a denial of state duty to provide for the well being of citizens.
Convincingly, it can very well be argued that, Courts in India, though put fetters on themselves
in analyzing the constitutionality of uncodified personal law on the touchstone of fundamental
rights, but in no way precluded from observing the role of state in bringing social reform and
change in matters concerning atrocious application of personal law resulting in denial of
constitutional protection of equality, liberty and dignity.