Secularism & Freedom of Religion in Indian Panorama

Saji Koduvath, Advocate, Kottayam.     

Introduction

Secularism constitutes the policy of separation of the State from religious institutions. Though the word ‘secular’ was added to the preamble of the Constitution of India only in 1976, by the 42nd Constitutional amendment, the independent Indian Republic has been secular, from its inception; and religion has been open to one and all as an unquestionable matter of personal choice.

While dealing with ‘secularism’, in Ahmedabad St. Xavier’s College v. State of Gujarat (AIR 1974 SC 1389) it is observed by our Apex Court that ‘secularism’ doesn’t mean either anti-god or pro-god; it just ensures that no one is differentiated on the basis of religion. In S R Bommai v. Union of India (AIR 1994 SC 1918) the Supreme Court explained that under the Constitution of India, secularism does not mean that India is an atheist society, but it is a heterogeneous society providing equal status to all religions without favouring or discriminating against any one.

What is Secularism in Indian perceptive?

In Indian panorama, secularism does not mean separation of religion from State. Instead, the Constitution gives fundamental rights and freedom to religion and ‘religious practices’, subject to the restrictions, which the Constitution itself has laid down. The State protects all religions, and its practices, in a neutral manner. At the same time, the secular Government in India is destined to deal with all religions equally and in a neutral way; and, it will not be openly or virtually religious. The framers of the Constitution reposed the heart and soul of the religious rights and freedom in Articles 25 and 26 of the Constitution of India.

Article 25 of the Constitution of India reads as under:

  • 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.
  • Explanation I – The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
  • Explanation II – In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

Article 26 reads as under:

  • 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.

Other Relevant Provisions of the Constitution

Apart from the preamble and Articles 25 and 26, the following Articles deal with and declare the secular policy of India:

  • Article 14 guarantees equality before the law and equal protection of the laws to all persons.
  • Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth.
  • Article 16 (1) ensures equality of opportunity to all citizens in matters of public employment and further declares that there would be no discrimination on the basis of religion, race, caste, sex, descent, place of birth and residence.
  • Article 27 proclaims that no person shall be deprived of his life or liberty except according to the procedure established by law.
  • Article 27, assures that the state will not compel any citizen to pay any taxes for the promotion or maintenance of any particular religion or religious institution.
  • Article 28 provides for freedom to manage educational institutions by religious groups to impart religious instruction.
  • Article 29 and Article 30 grant cultural and educational rights to the minorities.
  • Article 51A obliges all the citizens the Fundamental Duties to promote harmony and the spirit of common brotherhood and to value and preserve the rich heritage of our composite culture.

Shirur Mutt case

Commissioner Hindu Religious Endowments, Madras Vs. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt (AIR 1954 SC 282) is the leading decision handed down by the Supreme Court of India laying down the extent of freedom granted to manage ‘religious affairs and properties’ of the ‘religious denomination or section thereof’ under Article 26 of the Constitution of India. This decision is consistently followed in all subsequent decisions in this field.

In this trailblazing decision of 1954, our Supreme Court held that ‘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. The guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression “practice of religion” in Article 25’.

Shirur Mutt case laid down the extent of freedom granted to manage ‘religious affairs and properties’ of the ‘religious denomination or section thereof’, under Article 26 of the Constitution of India. This decision is consistently followed in all subsequent decisions in this field.

The Madras Hindu Religious and Charitable Endowments Act, 1951 passed by the Madras Legislature practically made to vest administration of religious and charitable institutions in a department of the Government, the head of which was the Commissioner. The Act gave vast powers to the Commissioner.  Swaminar of Shirur Mutt questioned the Act in the Madras High Court. The Madras High Court accepted the case of Swamiar. The High Court found that several provisions of the Act were unconstitutional. The Commissioner,   Hindu Religious Endowments filed appeal before the Supreme Court. Supreme Court upheld the decision of the Madras High Court.

The Seven-Judge Bench of the Supreme Court held, in a nutshell, as under:

  1. Spiritual community represented by the math falls under Art. 26(b) which contemplates ‘religious denomination’ or ‘a section thereof’.
  2. Right to manage the affairs of religion is a fundamental right under Art. 26. It cannot be taken away by legislature.
  3. Under Article 26(d), it is the fundamental right of a religious denomination or its representative to acquire and administer properties ‘in accordance with law’.
  4. Freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well (subject to such restrictions which the Constitution itself has laid down). This is made clear by the use of the expression “practice of religion” in Article 25.
  5. Under Article 26(b), a religious denomination or organization enjoys complete autonomy in deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.
  6. What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.
  7. The right and guarantee given to administer property being ‘in accordance with law’, the law ‘must leave the right of administration (of property) to the religious denomination itself’ subject to such restrictions and regulations imposed by laws by legislature.
  8. A law which takes away the right of administration from the hands of a religious denomination and vests it in any other authority would amount to a violation of the right guaranteed under clause (d) of Article 26.

Possible Restrictions  that can be Imposed by State

From the Shirur Mutt Judgment it can be found that the following would be the Possible Restrictions that could be imposed by State under Articles 25 and 26:

  1. Restrictions by the State are permitted upon free exercise of religion, both under Articles 25 and 26 of the Constitution on grounds of public order, morality and health.
  2. The State has a right to interfere when the freedom guaranteed by Article 25 and 26 run counter to public order, health and morality. (But it does not contemplate regulation of religious practices, as such, by the State.)
  3. Guarantee given to ‘religious denomination’ or ‘a section thereof’ is to administer its property is ‘in accordance with law’ (Clause [d] of Article 26); and thereby the State can ‘regulate it by laws’. (But the right to manage affairs of religion itself is a Fundamental Right which no legislature can take away.)
  4. Clause (2)(a) of Article 25 reserves the right of the State to regulate or restrict any economic, financial, political and other secular activities which may be associated with religious practice.
  5. Though the scale of expenses to be incurred in connection with religious observances would be a matter of administration of property belonging to the religious denomination, it can be controlled by secular authorities in accordance with any law laid down by a competent legislature; for it could not be the intention, of any religion to destroy its institution and its endowments by incurring wasteful expenditure on rites and ceremonies; and nobody can make a grievance if he is directed to obey orders issued in pursuance of valid legal authority.
  6. A further right is given to the State by Clause (2)(b) of Article 25 under which the State can legislate 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 even though by so doing it might interfere with religious practices.

Unique Nature of Protecting ‘Religious Practices’ in India

Unlike other secular countries like US, which follows the principle of ‘non-interference’ in the matters of religion, the Constitution of India protects all religions, and the religious practices. But, as pointed out by our Apex Court in Shirur Mutt case (AIR 1954 SC 282), our Constitution (Article 25) protects only those practices which are ‘integral parts’ of a religion

  • “… Freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions, which the Constitution itself has laid down. Under Article 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.”

But, in Durgah Committee, Ajmer Vs. Syed Hussain Ali (AIR 1961SC 1402) it is held that it is the duty of the court to decide whether a practice was an essential practice or not; and whether it depended on the evidence formulated by the conscience of the community and the tenets of the religion. (See note below as to Sabarimala Review)

Following religious practices were held as ‘essential’ part of religion by the Courts:

  • Worshipping of an image or idol in Hinduism: Mohd. Hanif Quareshi v. State of Bihar (AIR 1958 SC 731)
  • Offering prayers at a public mosque:  Sarwar Husain v. Addl. Judge: (LAWS (All)1982-7-16)

Following religious practices were held not ‘essential’ part of religion.

  • Capturing and worshipping live cobras. (Gramsabha of Village Battis Shirala Vs. Union Of India: LAWS(BOM) 2014-7-136).
  • Mosque is not an essential practice of Islam and a Muslim can offer namaz (prayer) anywhere even in the open. (M. Ismail Faruqui vs. Union of India: AIR 1995 SC 605).
  • Hijab (headscarf) is not an ‘essential religious practice’ in Islamic faith: Karnataka High Court (March 15, 2022) in Resham v. State of Karnataka.
  • Sacrifice of cows in the Muslim religion: Mohd. Hanif Quareshi v. State of Bihar (AIR 1958 SC 731)
  • Right to elect members to a committee for the administration of a Gurudwara property amongst Sikhs: Sarup Singh Sardar v. State of Punjab  (AIR 1959 SC 860).

Following decisions are also important in these matters.

  • A Hindu male marrying a second wife after conversion while first spouse living is illegal: Lily Thomas v. Union of India: (2000) 6 SCC 224,
  • Taking of photographs of a woman, for electoral purposes, cannot be prohibited: Nirmal Kumar Sikdar v. Chief Electoral Officer AIR 1961 Cal 289.

Hijab (Headscarf) & Essential Religious Practice

Karnataka High Court recently (March 15, 2022), in Resham v. State of Karnataka, held that Hijab (headscarf) is not an ‘essential religious practice’ in Islamic faith. The decision has come in a case in which the Govt. Order that banned Hijab in classrooms was challenged. It is held that the Govt. Order is not unconstitutional. The High Court began is judgment as under:

  • “This judgment, we desire to begin with what Sara Slininger from Centralia, Illinois concluded her well researched article ‘VEILED WOMEN: HIJAB, RELIGION, AND CULTURAL PRACTICE-2013’:
  • ‘The hijab’s history…is a complex one, influenced by the intersection of religion and culture over time. While some women no doubt veil themselves because of pressure put on them by society, others do so by choice for many reasons. The veil appears on the surface to be a simple thing. That simplicity is deceiving, as the hijab represents the beliefs and practices of those who wear it or choose not to, and the understandings and misunderstandings of those who observe it being worn. Its complexity lies behind the veil.’ “

The material point is answered by the three-judge-bench as under:

  • “…. we are of the considered opinion that wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith.”

Split Verdict in Supreme Court

Divergent views were expressed by the Two Judge Bench of the Supreme Court of India (Hemant Gupta and Sudhanshu Dhulia, JJ.) when this case was placed before them (Aishat Shifa v. State of Karnataka, 2022 SCC OnLine SC 1394). Therefore, this matter has been placed before the Chief Justice of India for constitution of an ‘appropriate Bench’.

Justice Hemant Gupta dismissed the appeals holding as under:

  • “However, it is to be noted that none of the fundamental rights is absolute. The curtailment of the right is permissible by following due procedure which can withstand the test of reasonableness. The intent and object of the Government Order is only to maintain uniformity amongst the students by adherence to the prescribed uniform. It is reasonable as the same has the effect of regulation of the right guaranteed under Article 19(1)(a). Thus, the right of freedom of expression under Article 19(1)(a) and of privacy under Article 21 are complementary to each other and not mutually exclusive and does meet the injunction of reasonableness for the purposes of Article 21 and Article 14.”
  • “Secularism is applicable to all citizens, therefore, permitting one religious community to wear their religious symbols would be antithesis to secularism. Thus, the Government Order cannot be said to be against the ethic of secularism or to the objective of the Karnataka Education Act, 1983.”

It was observed that the Government Order only ensured that the uniform prescribed was adhered to by the students and it could not be said that State was restricting the access to education to the girl students through such an Order and that the Government Order could not be said to be contrary to the State goal of promoting literacy and education as mandated under the Constitution.

But, Justice Sudhanshu Dhulia allowed the appeals directing that ‘there shall be no restriction on the wearing of hijab anywhere in schools and colleges in Karnataka’. Justice Dhulia observed as under:

  • “All the Petitioners want is to wear a hijab! Is it too much to ask in a democracy? How is it against public order, morality or health? Or even decency or against any other provision of Part III of the Constitution. These questions have not been sufficiently answered in the Karnataka High Court Judgement. The State has not given any plausible reasons either in the Government Order dated 5 February 2022, or in the counter affidavit before the High Court. It does not appeal to my logic or reason as to how a girl child who is wearing a hijab in a classroom is a public order problem or even a law-and-order problem. To the contrary reasonable accommodation in this case would be a sign of a mature society which has learnt to live and adjust with its differences.”

Justice Dhulia pointed out that fraternity, which was our Constitutional value, would therefore require us to be tolerant. Under our Constitutional scheme, wearing a hijab should be simply a matter of Choice. It may or may not be a matter of essential religious practice, but it still is, a matter of conscience, belief, and expression. If she wants to wear hijab, even inside her class room, she cannot be stopped, if it is worn as a matter of her choice, as it may be the only way her conservative family will permit her to go to school, and in those cases, her hijab is her ticket to education. By asking the girls to take off their hijab before they enter the school gates, is first an invasion on their privacy, then it is an attack on their dignity, and then ultimately it is a denial to them of secular education. These are clearly violative of Article 19(1)(a), Article 21 and Article 25(1) of the Constitution of India.

Religious Denomination in Article 26

Following sects or collection of individuals is held to be ‘religious denomination’:

  1. Vaishnava sect (Hindus): (Sri Shirur Muttcase: AIR 1954 SC 282)
  2. Aurobindo Society (Hindus): (SP Mittal Vs. Union of India: AIR 1983 SC 1).
  3. Ananda Marg: (Acharya Jagdishwaranand v. Commissioner of Police, Calcutta: AIR 1984 SC 51)
  4. Jehovah’s Witnesses (Christians): (Bijoe Emmanuel Vs. State of Kerala:  1987 AIR 748)
  5. Ramakrishna Math or Ramakrishna Mission (Hindus): (Bholanath Mukherjee Vs. R.K.Mission V.Centenary College: (2011) 5 SCC 464)
  6. Shia, Hanafi and Chishti (Muslims).

But, the followers of Ayyappa (Hindus) (Indian Young Lawyers Association Vs. Union of India: 2019-1 SCC 1) are held to be not ‘religious denomination’.

Shirur Mutt Case

Our Apex Court, in Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282) held as follows:

  • “…The word “denomination has been defined in the Oxford Dictionary to mean
    • “a collection of individuals classed together under the same name:
    • a religious sect or body having
      • a common faith and
      • organisation and
      • designated by a distinctive name”
  • . …After Sankara, came a galaxy of religious teachers and philosophers who founded the different sects and sub-sects of the Hindu religion that we find in India at the present day. Each one of such sects or sub-sects can certainly be called a religious denomination, as it is designated by a distinctive name – in many cases it is the name of the founder – and has a common faith and common Spiritual organisation. The followers of Ramanuja, who are known by the name of Shri Vaishnabas, undoubtedly constitute a religious, denomination; and so do the followers of Madhwacharya and other religious teachers.”

In AS Narayana Deekshitulu   Vs. State of AP, AIR 1996 SC 1765 , it is held by our Apex Court as under:

  • “What are essential parts of religion or religious belief or matters of religion and religious practice is essentially a question of fact to be considered in the context in which the question has arisen and the evidence — factual or legislative or historic — presented in that context is required to be considered and a decision reached.” Quoted in KS Varghese Vs. St. Peters and St. Pauls Syrian Orthodox Church: (2017) 15 SCC 333.

SP Mittal Vs. Union of India  (1983)

In SP Mittal Vs. Union of India the Constitution Bench of our Apex Court had to consider whether Auroville (Emergency Provisions) Act was violative of Article 26 of the Constitution. The majority ((Y.V. Chandrachud (CJ), P.N. Bhagwati, V. Balakrishna Eradi, R.B. Misra, JJ.) as wall as the minority (O. Chinnappa Reddy, J.) held that the Act was not violative of Articles 25 and 26 of the Constitution specifically pointing out that the questions arise for consideration were merely relating to administration of properties. The majority observed (referring Shirur Mutt) as under:

  • “The words ‘religious denomination’ in Article 26 of the Constitution must take their colour from the word ‘religion’and if this be so, the expression  ‘religious denomination‘ must also satisfy three conditions:
    • (1) It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, that is, a common faith;
    • (2) common organization; and
    • (3) designation by a distinctive name.”

However, the Majority did not go to the question whether Arobindo society or Auroville was a ‘religious denomination’. It stated as under:

  • “We have also pointed out that the administration of the property of a religious denomination is different from the right of the religious denomination to manage its own affairs in matters of religion and that laws may be made which regulate the right to administer the property of a religious denomination. Questions merely relating to administration of properties belonging to a religious group or institution are not matters of religion to which clause (b) of Art. 26 applies.” 

Then Misra, J. proceeded stating as under:

  • “Even assuming but not holding that the Society or the Auroville were a religious denomination, the impugned enactment is not hit by Article 25 or 26 of the Constitution.”

Chinnappa Reddy, J. (minority) held as under:

  • “Definitions (given by Court) are not statutory definitions; they are mere explanations, every word of which is not to be weighed in golden scales. … Judicial definition is explanatory and not definitive.”
  • “… What is religion to some is pure dogma to others and what is religion to others is pure superstition to some others… But my views about religion, my prejudices and my predilections, if they be such, are entirely irrelevant. So are the views of the credulous, the fanatic, the bigot and the zealot. So also the views of the faithful, the devout, the acharya, the moulvi, the padre and the bhikhshu each of whom may claim his as the only true or revealed religion. For our purpose, we are concerned with what the people of the Socialist, Secular, Democratic Republic of India, who have given each of its citizens freedom of conscience and the right to freely profess, practise and propagate religion and who have given every religious denomination the right to freely manage its religious affairs, mean by the expressions religion and religious denomination. We are concerned with what these expressions are designed to mean in Articles 25 and 26 of the Constitution. Any freedom or right involving the conscience must naturally receive a wide interpretation and the expression religion and religious denomination must therefore, be interpreted in no narrow, stifling sense but in a liberal, expansive way.”
  • “If the word ‘religion’ is once explained, though with some difficulty, the expression religious denomination may be defined with less difficulty. As we mentioned earlier Mukherjea, J., borrowed the meaning of the word denomination from the Oxford Dictionary and adopted it to define religious denomination as a collection of individuals classed together under the same name, a religious sect or body having a common faith and organisation and designated by a distinctive name.
    • The followers of Ramanuja,
    • the followers of Madhwacharya,
    • the followers of Vallabha,
    • the Chistia Soofies
  • have been found or assumed by the Court to be religious denominations. It will be noticed that these sects possess no distinctive names except that of their founder-teacher and had no special organisation except a vague, loose – unknit one. The really distinctive feature about each one of these sects was a shared belief in the tenets taught by the teacher-founder. We take care to mention here that whatever the ordinary features of a religious denomination may be considered to be, all are not of equal importance and surely the common faith of the religious body is more important than the other features. … Religious denomination has not to owe allegiance to any parent religion. The entire following of a religion may be no more than the religious denomination. This may particularly be so in the case of small religious groups or ‘developing’ religions, that is, religions in the formative stage. So Aurobindoism can be termed as a religious denomination.”

Whether the judgment of Chinnappa Reddy, J. – ‘minority’ or ‘concurring’

As shown above, majority (Misra J.) did not make a definite finding on the point whether the Arabindo Society or the Auroville had acquired the character of a ‘ religious denomination’. But, a definite finding was recorded by Chinnappa Reddy, J. – that the Arabindo Society or the Auroville had acquired the character of a ‘ religious denomination’.

Indu Malhotra, J., in Sabarimala case, referred to the observations of Chinnappa Reddy, J. with the introduction that the judgment of Chinnappa Reddy is a ‘concurrent’ one.
But, Nariman, J. observed, in Sabarimala case, as to the SP Mittal Judgment as a dissenting judgment.
It is interesting to note that Chinnappa Reddy, J. himself stated his judgment – “I have the good fortune of having before me the scholarly judgment of my brother Misra J., I agree with my brother Misra, J that the Writ Petitions must fail. With much that he has said, also, I agree. But with a little, to my own lasting regret, I do not agree. It is, therefore, proper for me to explain the points of my disagreement.”

Even if the judgment of Chinnappa Reddy, J. is a ‘dissenting’ judgment, it has force of law, as, Nariman, J. observed, in Sabarimala case, as to the minority judgment in Saifuddin case as under:

  • “Though the learned Chief Justice’s judgment is a dissenting judgment, some of the principles laid down by the learned Chief Justice, not dissented from by the majority judgment, are apposite.”

Sabarimala Disputes

The time immemorial custom prevailing at Sabarimala Temple prohibits women, between the age group of 10 to 50 years, to enter this temple. The Kerala High Court, in 1991, upholding the prevailing custom, ruled in S. Mahendran Vs. The Secretary, Travancore Devaswom Board (AIR 1993 Ker 42) that the exclusion of women in their ‘menstruating years’, from Sabarimala Temple, was not violative of Art. 15, 25 and 26 of the Constitution of India.

On September 28, 2018, the Constitution Bench, headed by the Chief Justice allowed, in 4:1 majority (Indian Young Lawyers Association Vs. Union of India: 2019-1 SCC 1), the petition filed under Article 32 of the Constitution holding that the exclusion of women from Sabarimala Temple violated the fundamental rights and that the custom of exclusion of women was unconstitutional. The Court struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules. The Supreme Court also held that the devotees of Lord Ayyappa do not constitute a separate religious denomination; and therefore they cannot claim the benefit of Article 26 of the Constitution of India.

Justice Indu Malhotra, in her eloquent dissent, found that the equality doctrine enshrined under Article 14 would not override the Fundamental Right guaranteed by Article 25 to every individual to freely profess, practise and propagate their faith, in accordance with the tenets of their religion. The Constitutional Morality in a secular polity in a pluralistic society would imply the harmonisation of the Fundamental Rights, which include the right of every individual, religious denomination, or sect, to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practise is rational or logical. Justice Malhotra observed that the Ayyappans or worshippers of the Sabarimala Temple satisfy the requirements of being a religious denomination, or sect thereof, which is entitled to the protection provided by Article 26 by which it can manage its internal affairs and is not subject to the social reform mandate under Article 25(2)(b).

SABARIMALA REVIEW

More than 50 review petitions were filed challenging the ‘Sbarimala verdict’. On November 13, 2018, the Constitution Bench headed by Chief Justice began hearing the review petitions (Kantaru Rajeevaru v. Indian Young Lawyers’ Association) in open court. It was argued that several questions including the scope of the freedom of religion guaranteed under Articles 25 and 26 of the Constitution were yet to be resolved by a larger bench of not less than seven Judges.  According to them, the determination of the questions of law referred to a larger bench would have a bearing on the pending writ petitions relating to entry of Muslim women in durgahs/mosques, the entry of Parsi women married to non-Parsis into the holy fire place of Agyari and the challenge to the practice of female genital mutilation in Dawoodi Bohra Community.

According to the reference, the conflict of opinion between the judgments in Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt (AIR 1954 SC 282) and Durgah Committee, Ajmer v. Syed Hussain Ali ( AIR 1961 SC 1402) pertaining to the role of the Court in matters which are essential religious practices had also to be resolved. Seven issues were framed for consideration by the larger Bench.

The Crux of Sabarimala-Review-matter

In the Sabarimala reference (to higher Bench) Judgment [on review petition in Indian Young Lawyers Association Vs. State of Kerala: 2018][111] it is observed that there is conflict between the Shirur Mutt Case and Durgah Committee Case as to the following:

  1. Whether the determination on essential religious practices was a matter left to the denomination?
  2. Whether the court has jurisdiction to determine it applying its own conscience?

The scope or extent of judicial review on ‘religious practice’ is the Crux of the review-matter. :

  • In the Review Judgment it is shown-
    • Shirur Mutt case [1954 SCR 1005: AIR 1954 SC 282 – Seven judges] held that the essential religious practices of a particular religious denomination should be left to be determined by the denomination itself.
    • But Durgah Committee [1962-1 SCR 383: AIR 1961 SC 1402 – Five judges] carved out a role for the court in this regard to exclude what the courts determine to be secular practices or superstitious beliefs.
  • Another difference is also seen. It is, as to the extent-of-protection of religious practices given under these decisions.
    • The Shirur Mutt case had stated that the extent of protection of essential religious practices extends to essential ‘religious practices’. 
    • But, the Durgah Committee decision said that the protection must be confined to such ‘religious’ practices as ‘are essential and integral part’ of the ‘RELIGION’ (rather than a sect or faction).

In the Review Judgment, Kantaru Rajeevaru v. Indian Young Lawyers’ Association, the Majority (Ranjan Gogoi, CJI., A.M. Khanwilkar & Indu Malhotra JJ.) said as under:

  • “7. In this context, the decision of the Seven Judges bench of this Court in Commissioner, Hindu Religious Endowments, Madras vs. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (Shirur Mutt) holding that what are essential religious practices of a particular religious denomination should be left to be determined by the denomination itself and the subsequent view of a Five Judges bench in Durgah Committee, Ajmer vs. Syed Hussain Ali & Ors. carving out a role for the court in this regard to exclude what the courts determine to be secular practices or superstitious beliefs seem to be in apparent conflict requiring consideration by a larger Bench.”

Shirur Mutt & Durgah Committee Cases: Conflict –  in Extent of Protection

There is difference of opinion, between the following two important decisions of the Supreme Court of India, as to the extent of protection ensured in these Articles and as to the restrictions.

  1. The Commr, Hindu Religious Endowments Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282); and
  2. Durgah Committee, Ajmer Vs. Syed Hussain Ali (AIR 196 1SC 1402).

The difference of opinion, in nutshell, is the following –

  • Do the following words in Article 25 and 26 give ‘wider’ rights:
  • (i) Subject to public order, morality and health all persons are entitled to the right freely to practise religion. (Article 25).
  • (ii) Subject to public order, morality and health every religious denomination or any section thereof have the right to manage its own affairs in matters of religion. (Article 26).

The law handed down by the Supreme Court in these two rulings are divergent in certain material parts. They are:

Whether protection is limited to practices that are ESSENTIAL and INTEGRAL part of religion (and no other)?Do Article 25 and 26 that give right ‘to manage its own affairs in matters of religion’ and freedom to ‘practice of religion’ protect ‘Acts Done in pursuance of a religion?
Who determines – what constitutes the essential part of a religion? Is it the COURT?Is it left to be determined by the Denomination or Section and no outside authority has any jurisdiction to interfere with their decision in such matters?
Whether the Protection is limited to ESSENTIAL and INTEGRAL part of ‘RELIGION’ in a strict sense (and no other)?Whether it Extends to Religious practices of Denomination/Section, ‘Organization’, ‘Sect, Sub-sect‘, etc.?
Whether freedom of religion is guaranteed to all practices, except that which run counter to public order, health and morality?
A Religion or any section thereof hold the fundamental right to ‘manage its own affairs‘ (which no legislature can take away) and enjoy complete autonomy (so that no outside authority has any jurisdiction).

The findings in these cases, on Article 25 and 26, can be summarised as under:

Durgah Committee (1961) Five Judge Bench. (Author: Gajendragadkar, J.)Shirur Mutt (1954) Seven Judge Bench. (Author: BK Mukherjea, J.)
1. Limited to ESSENTIAL and INTEGRAL part of religion and no other.
“Unless such practices are found to constitute an essential and integral part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.”
(Wider application of religious practices is not recognised.)		The right ‘to manage its own affairs in matters of religion’ and the freedom to ‘practice of religion’protect Acts Done in pursuance of a religion.
“The contention in broad terms that all secular activities (which may be associated with religion) which do not really constitute an essential part of it, are amenable to State regulation cannot be supported.”
“Our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression “practice of religion”.
2. COURT determines
“Unless such practices are found to constitute an essential and integral part of a RELIGION
their claim for the protection under Art. 26 may have to be carefully scrutinised;
in other words,
the protection must be confined to such religious practices as are an essential and an integral part of it and no other.”
(That is court determines and ‘carefully scrutinises’. That is, there is scope for the court to apply its own conscience.)
Note: This proposition is not followed in
(i) Tilkayat Shri Govindlalji Maharaj Vs. St. of Rajasthan, 1963 AIR SC 1638, authored by Gajendragadkar, J himself [Held: The Court may have to enquire whether the practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of the religion];
(ii) Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay, AIR 1962 SC 853. Three Judges in Durgah Committee (Sarkar, Das Gupta , Rajagopala Ayyangar) were also judges in Saifuddin. They held: “What constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion“		Right of a Religion to ‘manage its own affairs‘ is a fundamental right which no legislature can take away.
Denomination or organization enjoys complete autonomy. No outside authority has any jurisdiction.
“What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.”
“A religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.”
“The ‘right to manage its own affairs in matters’ of religion “is a fundamental right which no legislature can take away“.
3. Religious practices of ‘RELIGION’ in a strict sense.
“Unless such practices are found to constitute an essential and integral part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised. In other words, the protection must be confined to such religious practices as are an essential and an integral part of it (RELIGION) and no other.“
“If these practises were found to be purely secular practices or mere practices sprung from ‘superstitious beliefs and may in that sense is extraneous and UNESSENTIAL accretions to RELIGION’ the State was free to enact laws on such matters.“		Extends to religious denomination or a section thereof, and includes ‘Organization‘, ‘Sects, Sub-sects‘, etc.
“After Sankara, … religious teachers … founded the different sects and sub-sects …. Each one of such sects or sub-sects can certainly be called a religious denomination …”  
“The word ‘’denomination’ … mean … a religious sect or body ….” 
“If the tenets of any religious sect of the Hindus prescribe that offerings of food … be regarded as parts of religion.
“A religious denomination or organization enjoys complete autonomy …”
“There could be other affairs of .. denomination or a section thereof .. not matters of religion … guarantee given ….”
4. Not refer to public order, health and morality
“Unless such practices are found to constitute an ESSENTIAL and integral part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised.”

(That is,
emphasis is given to
(i) ESSENTIAL and integral part of a RELIGION
and
(ii) assigns serious role of the COURT.)
Freedom of religion is guaranteed to practices except when they run counter to public order, health and morality
“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.” 
“There could be other affairs of a religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply.”
Observations in Sabarimala reference (to higher Bench) Judgment as to Durgah Committee Decision 
Courts determine – what religious practices are protected and what religious practices are to be excluded as “secular practices or superstitious beliefs”		Observations in Sabarimala reference (to higher Bench) Judgment as to Shirur Mutt Decision 
“What are essential religious practices of a particular religious denomination should be left to be determined by the denomination itself“

Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay (AIR 1962 SC 853 – B P Sinha, CJ., A.K Sarkar, Das Gupta, N. Rajagopala Ayyangar, Mudholkar, J.J.) This decision is stand referred to a larger bench in Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673.

  • Note: Sarkar, Das Gupta , Rajagopala Ayyangar were also judges in Durgah Committee, Ajmer Vs. Syed Hussain Ali.

The Bombay Prevention of Excommunication Act, 1949 was challenged in Sardar Syedna Taher Saiffuddin Saheb Vs. State of Bombay. This Act made act of “ex-communication” illegal under Sec. 3, which reads as under:

  • “3. Notwithstanding anything contained in any law, custom or usage for the time being in force to the contrary, no excommunication of a member of any community shall be valid and shall be of any effect.”

Sec. 4 made excommunication, a punishable offence. The Act was challenged by the head of the Dawoodi Bohras, as:

  • being impinging upon the right of the Dawoodi Bohras to freely practice their religion according to their own faith and practice, a right guaranteed under Articles 25 and 26 of the Constitution.
  • It was contended that the right of the head of the Dawoodi Bohra community to ex-communicate is an essential part of the creed of the Dawoodi Bohra sect as it is a necessary measure of discipline for maintenance of integrity of the community, to hold together the community, so that the community faith, belief and practice can be preserved and hence protected by Article 26(b).

The Supreme Court, by majority (4 : 1), accepted the argument and struck down the Act as violative of Article 26(b) of the Constitution.  It is pointed out in this decision as under:

  • “The content of Arts. 25 and 26 of the Constitution came up for consideration before this Court in:
    • The Commissioner, Hindu Religious Endowments Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt;
    • Mahant Jagannath Ramanuj Das Vs. The State of Orissa;
    • Sri Venkatamana Devaru Vs. The State of Mysore;
    • Durgah Committee, Ajmer Vs. Syed Hussain Ali and several other cases
  • and the main principlesunderlying these provisions have by these decisions been placed beyond controversy.
    • The first is that the protection of these articles is not limited to matters of doctrine or belief, they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion.
    • The second is that what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion.” (This part is referred to in Most Rev. P.M.A. Metropolitan Vs. Moran Mar Marthoma, AIR 1995 SC 2001)

In this decision the Constitution Bench of our Apex Court:

  • observed that the exercise of the power of ex-communication by the religious head on religious ground form part of the management of its affairs in matters of religion and
  • held that it was difficult to agree that court was not a forum for vindication of such right.

Commissioner of Police v. Acharya Jagadishwarananda Avadhuta,   (2004) 12 SCC 770.

It is the second Ananda Margi case. In the first Ananda Margi case (Acharya Jagdishwaranand Avadhuta v. Commr. of Police, 1983-4 SCC 522), the Supreme Court held that the Tandava dance in public (with knife, live snake, trident, skull, etc.) was not an essential rite of the Ananda Margi faith. In this second Ananda Margi case the majority rendered the decision following Durgah Committee, Ajmer vs. Syed Hussain Ali where it is held that the protection must be confined to such religious practices as are an essential and integral part of it and no other.

In the minority view rendered by AR Lakshmanan, J. it is laid down as under:

  • “This observation of this Court, in our view, runs counter to the observation of Mukherjee, J. in The Commissioner, Hindu Religious Endowment, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra). In this context, it is useful to reproduce a passage from the above judgment which explains the definition of religion in paragraphs 14 and 19 of the judgment which are –
    • “We now come to Art. 25 which, as its language indicates, secures to every person, subject to public order, health and morality, a freedom not only to entertain such religious belief, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others….
    • ….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…”
  • In a subsequent decision, namely, His Holiness Srimad Perarulala Ethiraja Ramanuja Jeeyar Swamietc. vs. The State of Tamil Nadu [AIR 1972 SC 1586], this Court has held that –
    • ‘Worshippers lay great store by the rituals and whatever other people, not of the faith may think about these rituals and ceremonies, they are a part of the Hindu Religious faith and cannot be dismissed as either irrational or superstitious.’
  • The contention that the word ‘religion’ under Article 25(1) of the Constitution of India does not include sect of religion of Ananda Marga being declared as religious denomination does not qualify for the same protection as religion in our view is not tenable. The learned Judges of the Calcutta High Court in their judgment impugned in this appeal has categorically dealt with the question following the decision exactly on the same point in the case of Shirur Mutt (supra) and the National Anthem case (Bijoe Emmanuel v. State of Kerala) reported in [AIR 1987 SC 748] and Sri Venkataramana Devaru & Ors. Vs. State of Mysore & Ors., [AIR 1958 SC 255] held that a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rights and ceremonies are essential according to the tenets of the religion they hold and outside authority has no jurisdiction to interfere with their decision in such matters.”

Conclusion

The (i) right of entry of women in Sabarimala (ii) right of entry of Muslim women in durgahs/mosques, (iii) right of entry of Parsi women, married to non-Parsis, into the holy fire place of Agyari and  (v) the challenge to the practice of female genital mutilation in Dawoodi Bohra Community are placed before the nine-judge-bench of the Supreme Court.

The result of the combined inquisitive analysis of all the aforesaid cases and all the issues involved therein, in the constitutional ethos, by the nine-judge-bench may be in supportive of the so called ‘progressive view in favour of women’. If the effect of answers of each segregated case and each separated issue is anatomically explored and blended together, the outcome may be diametrically opposite. The nine-judge-bench will have to analyse the matter, both ways.

Foot Notes:

Relevant parts of Shirur Mutt Case:

  • “We now come to article 25 which, as its language indicates, secures to every person, subject to public order, health and morality, a freedom not only to entertain such religious belief, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others. A question is raised as to whether the word “persons” here means individuals only or includes corporate bodies as well. The question, in our opinion, is not at all relevant for our present purpose. A Mathadhipati is certainly not a corporate body; he is the head of a spiritual fraternity and by virtue of his office has to perform the duties of a religious teacher. it is his duty to practise and propagate the religious tenets, of which he is an adherent and if any provision of law prevents him from propagating his doctrines, that would certainly affect the religious freedom which is guaranteed to every person under article 25. Institutions as such cannot practise or propagate religion; it can be done only by individual persons and whether these person propagate their personal views or the tenets for which the institution stands is really immaterial for purposes. of article 25. It is the propagation of belief that is protected, no matter whether the propagation takes place in a church or monastery, or in a temple or parlour meeting. As regards article 26, the first question is, what is the precise meaning or connotation of the expression “religious denomination” and whether a Math could come within this expression. The word “denomination” has been defined in the Oxford Dictionary to mean ‘Ca collection of individuals classed together under the same name: a religious sect or body having a common faith and Organisation and designated by a distinctive name. It is well known that the practice of setting up Maths as centres of the logical teaching was started by Shri Sankaracharya and was followed by various teachers since then. After Sankara, came a galaxy of religious teachers and philosophers who founded the different sects and sub-sects of the Hindu religion that we find in India at the present day. Each one of such sects or sub-sects can certainly be balled a religious denomination, as it is designated by a distinctive name,-in many cases it is the name of the founder,-and has a common faith and common spiritual organization. The followers of Ramanuja, who are known by the name of Shri Vaishnabas, undoubtedly constitute a religious denomination; and so do the followers of Madhwacharya and other religious teachers. It is a fact well established by tradition that the eight Udipi Maths were founded by Madhwacharya himself and the trustees and the beneficiaries of these Maths profess to be followers of that teacher. The High Court has found that the Math in question is in charge of the Sivalli Brahmins who constitute a section of the followers of Madhwacharya. As article 26 contemplates not merely a religious denomination but also a section thereof, the Math or the spiritual fraternity represented by it can legitimately come within the purview of this article.
  • The other thing that remains to be considered in regard to article 26 is, what is the scope of clause (b) of the article which speaks of management ” of its own affairs in matters of religion ?” The language undoubtedly suggests that there could be other affairs of a religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply. The question is, whereas the line to be drawn between what are matters of religion and what are not It will be seen that besides the right to manage its own affairs in matters of religion, which is given by clause(b), the next two clauses of article 26 guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law. The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which no legislature can take away, whereas the former can be regulated by laws which the legislature can validly impose. It is clear, therefore, that questions merely relating to administration of properties belonging to a religious group or institution are not matters of religion to which clause (b) of the article applies. What then are matters of religion ? The word “religion ” has not been defined in the Constitution and it is a term which is hardly susceptible of any rigid definition. In an American case [Vide Davie v. Benson 133 U.S 333 at 342] it has been said ” that the term religion has reference to one’s views of his relation to his Creator and to the obligations they impose of reverence for His Being and character and of obedience to His will. It is often confounded with cultus of form or worship of a particular sect, but is distinguishable from the latter.” We do not think that the above definition can be regarded as either precise or adequate. Articles 25 and 26 of our Constitution are based for the most part upon article 44(2) of the Constitution of Eire and we have great doubt whether a definition of “religion” as given above could have been in the minds of our Constitution-makers when they framed the Constitution. 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.
  • The guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression ” practice of religion ” in article 25. Latham C. J. of the High Court of Australia while dealing with the provision of section 116 of the Australian Constitution which inter alia forbids the Commonwealth to prohibit the “free exercise of any religion” made the following weighty observations(1) : ” It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil Government should not interfere with religious opinion&, it nevertheless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion. It appears to me to be difficult to maintain this distinction as relevant to the interpretation of section 116. The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts. done in pursuance of religious belief as part of religion.” These observations apply fully to the protection of religion as guaranteed by the Indian Constitution. Restrictions by the State upon free exercise of religion are permitted both under articles 25 and 26 on grounds of public order,. morality and health. Clause (2)(a) of article 25 reserves the right of the State to regulate or restrict any economic, financial, political and other secular activities which may be associated with religious practice and there is a further right given to the State by sub-clause (b) under which the State can (1) Vide Adelaide Company V. The Commonwealth 67 C.L.R. 116, 127 legislate for social welfare and reform even though by so doing it might interfere with religious practices. The learned Attorney-General lays stress upon clause (2)(a) of the article and his contention is that all secular activities, which may be associated with religion but do not really constitute an essential part of it, are amenable to State regulation.
  • The contention formulated in such broad terms cannot, we think, be supported. 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 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 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. We may refer in this connection to a few American and Australian cases, all of which arose out of the activities of persons connected with the religious association known as “Jehova’s Witnesses.” This association of persons loosely organised throughout Australia, U.S.A. and other countries regard the literal interpretation of the Bible as fundamental to proper religious beliefs. This belief in the supreme Authority of the Bible colours many of their political ideas. They refuse to take oath of allegiance to the king or other Constituted human authority and even to show respect to the national flag, and they decry all wars between nations and all kinds of war activities. In 1941 a company of ” Jehova’s Witnesses ” incorporated in Australia commenced proclaiming and teaching matters which were prejudicial to war activities and the defence of the Commonwealth and steps were taken against them under the National Security Regulations of the State. The legality of the action of the Government was questioned by means of a writ petition before the High Court and the High Court held that the action of the Government was justified and that section 116, which guaranteed freedom of religion under the Australian Constitution, was not in any way infringed by the National Security Regulations [Vide Adelaide Company v. The Commonwealth, 67 C.L.R., 116, 127].
  • These were undoubtedly political activities though arising out of religious belief entertained by a particular community. In such cases, as Chief Justice Latham pointed out, the provision for protection of religion was not an absolute protection to be interpreted and applied independently of other provisions of the Constitution. These privileges must be reconciled with the right of the State to employ the sovereign power to ensure peace, security and orderly living without which constitutional guarantee of civil liberty would be a mockery.
  • The courts of America were at one time greatly agitated over the question of legality of a State regulation which required the pupils in public schools on pain of compulsion to participate in a daily ceremony of saluting the national flag, while reciting in unison, a pledge of allegiance to it in a certain set formula. The question arose in Minersville School District, Board of Education, etc. v. Gobitis, 310 U.S. 586. In that case two small children, Lillian and William Gobitis, were expelled from the public school of Minersville, Pennsylvania, for refusing to salute the national flag as part of the daily exercise. The Gobitis family were affiliated with “Jehova’s Witnesses” and had been brought up conscientiously to believe that such a gesture of respect for the flag was forbidden by the scripture. The point for decision by the Supreme Court was whether the requirement of participation in such a ceremony exacted from a child, who refused upon sincere religious ground, infringed the liberty of religion guaranteed by the First and the Fourteenth Amendments ? The court held by a majority that it did not and that it was within the province of the legislature and the school authorities to adopt appropriate means to evoke and foster a sentiment of. national unity amongst the children in public schools. The Supreme Court, however, changed their views on this identical point in the later case of West Virginia State Board of Education v. Barnette 319 U.S. 624.  There it was held overruling the earlier decision referred to above that the action of a State in making it compulsory for children in public schools to salute the flag and pledge allegiance constituted a violation of the First and the Fourteenth Amendments. This difference in judicial opinion brings out forcibly the difficult task which a court has to perform in cases of this type where the freedom or religious convictions genuinely entertained by men come into conflict with the proper political attitude which is expected from citizens in matters of unity and solidarity of the State organization. As regards commercial activities, which are prompted by religious beliefs, we can cite the case of Murdock v. Pennsylvania   319 U.S. 105. Here also the petitioners were “Jehova’s Witnesses” and they went about from door to door in the city of Jeannette distributing literature and soliciting people to purchase certain religious books and pamphlets, all published by the Watch Tower Bible and Tract Society. A municipal ordinance required religious colporteurs to pay a licence tax as a condition to the pursuit of their activities. The petitioners were convicted and fined for violation of the ordinance. It was held that the ordinance in question was invalid under the Federal Constitution as constituting a denial of freedom of speech, press and religion; and it was held further that upon the facts of the case it could not be said that “Jehova’s Witnesses” were engaged in a commercial rather than in a religious venture. Here again, it may be pointed out that a contrary view was taken only a few years before in the case of Jones v. Opelika,  316 U.S. 584 and it was held that a city ordinance, which required that licence be procured and taxes paid for the business of selling books and pamphlets on the streets from house to house, was applicable to a member of a religious Organisation who was engaged in selling the printed propaganda, pamphlets without having complied with the provisions of the ordinance.
  • It is to be noted that both in the American as well as in the Australian Constitutions the. right to freedom of religion has been declared in unrestricted terms with. out any limitation whatsoever. Limitations, therefore, have been introduced by courts of law in these countries on grounds of morality, order and social protection. An adjustment of the competing demands of the interests of Government and constitutional liberties is always a delicate and a difficult task and that is why we find difference of judicial opinion to such an extent in cases decided by the American courts where questions of religious freedom were involved. Our Constitution-makers, however, have embodied the limitations which have been evolved by judicial pronouncements in America or Australia in the Constitution itself and the language of articles 25 and 26 is sufficiently clear to enable us to determine without the aid of foreign authorities as to what matters come within the purview of religion and what do not. As we have already indicated, freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions which the Constitution itself has laid down. Under article 26(b), therefore, a religious denomination .or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters. Of course, the scale of expenses to be incurred in connection with these religious observances would be a matter of administration of property belonging to the religious denomination and can be controlled by secular authorities in accordance with any law laid down by a competent legislature; for it could not be the injunction, of any religion to destroy the institution and its endowments by incurring wasteful expenditure on rites and ceremonies. It should be noticed, however, that under article 26(d), it is the fundamental right of a religious denomination or its representative to administer its properties in accordance with law; and the law, therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under clause (d) of article 26. Having thus disposed of the general contentions that were raised in this appeal, we will proceed now to examine the specific grounds that have been urged by the parties before us in regard to the decision of the High Court so far as it declared several sections of the new Act to be ultra vires the Constitution by reason of their conflicting with the fundamental rights of the respondent.”

Relevant Parts of Dargah Case

  • “We will first take the argument about the infringement of the fundamental right to freedom of religion. Articles 25 and 26 together safeguard the citizens right to freedom of religion. Under Art. 25(1), subject to public order, morality and health and to the other provisions of Part 111, all persons are equally entitled to freedom of conscience and their right freely to profess, practise and propagate religion. This freedom guarantees to every citizen not only the right to entertain such religious beliefs as may appeal to his conscience but also affords him the right to exhibit his belief in his conduct by such outward acts as may appear to him proper in order to spread his ideas for the benefit of others. Article 26 provides that 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.
  • The four clauses of this Article constitute the fundamental freedom guaranteed to every religious denomination or any section thereof to manage its own affairs. It is entitled to establish institutions for religious purposes, it is entitled to manage its own affairs in the matters of religion, it is entitled to own and acquire movable and immovable property and to administer such property in accordance with law. What the “expression “religious denomination” means has been considered by this Court in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [1954] S.C.R. 1005, 1023, 1024. Mukherjea, J., as he then was, who spoke for the Court, has quoted with approval the dictionary meaning of the word “denomination” which says that a – “denomination” is a collection of individuals classed,. together under the same name, a religious sect or body having a common faith and Organisation and, designated by a distinctive name”. The learned Judge has added that Art. 26 contemplates not merely a religious denomination but also a section thereof Dealing with the questions as to what are the matters of religion, the learned Judge observed that the word “religion” has not been defined in the Constitution, and it is a term which is hardly susceptible of any rigid definition. Religion, according to him, is a matter of faith with individuals or communities and it is not necessarily theistic. It undoubtedly has its basis in a system of pleas or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it is not 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. Dealing with the same topic, though in another context, in Sri Venkataramana Devaru v. The State of Mysore [1958] S.C.R. 895, Venkatarama Aiyar, J. spoke for the Court in the same vein and observed that it was settled that matters of religion in Art. 26(b) include even practices which are regarded by the community as part of its religion, and in support of this statement the learned Judge referred to the observations of Mukherjea, J. which we have already cited. Whilst we are dealing with this point it may not be out of place incidentally to strike a note of caution and Observe 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 Art. 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. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other. In the present appeal we are concerned with the freedoms guaranteed under Art. 26(c) and (d) in particular. The respondents contend that the appointment of the Committee contemplated by ss. 4 and 5 has effectively deprived the section of the denomination represented by them of its right to own the endowment properties and to them. We have already stated that we propose to deal with this appeal on the assumption that the respondents have filed the present writ petition not only for the Khadims but also for and oil behalf of the Chishtis and chat the Chishtis constitute a section of a religious denomination. Considered on this basis the contention of the respondents is directed against the powers conferred on the Committee for the purpose of administering the property of the Durgah and in substance it amounts to a challenge to the validity of the whole Act, because according to them it is for the section of the denomination to administer this property and the Legislature cannot interfere with the said right.
  • In dealing with this argument it is necessary to recall the fact that the challenge to the vires of s. 5 has been made by the respondents in their petition on a very narrow ground. They had urged that since the committee constituted under the Act was likely to include Hanafi muslims who may not be Chishtis muslims the provision authorising the appointment of the Committee was ultra vires, and in fact the decision of the, High Court is also based on this narrow ground. Now, it is clear that the vires of s. 5 cannot be effectively challenged on any such narrow ground. If the right of the denomination or a section of such denomination is adversely affected by the statute the relevant provision of the statute must be struck down as a whole and in its entirety or not at all. If respondents could properly invoke Art. 26(d) it would not be open to the statute to constitute by nomination a Committee for the management and administration of the property of the denomination at all. In others words, the infirmity or the vice in the statute cannot be cured by confining the members of the proposed Committee to the denomination itself. This no doubt is a serious weakness in the basis on which they levelled their attack against the validity of s. 5 in the court below.”

Read in this Cluster  (Click on the topic):

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws/ Transfer of Property Act

Evidence Act – General

Contract Act

Easement

Stamp Act

Will

Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

Published by sajikoduvath

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