Why courts can rule on essential religious practices

Judicial intervention might be needed in a secular democracy to protect individual rights within a community, just like the Supreme Court did in the triple talaq case.
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Wikimedia Commons

The Madras High Court’s May 2024 judgement in P Naveen Kumar vs District Collector, Karur & Others has revived the debate on what in India is called the essential religious practices test. The single-judge ruling allowed angapradakshinam, the practice in which devotees roll over banana leaves on which other devotees have partaken food.

Some legal scholars argue judges should not assume the role of clergy to determine theological issues to either permit or curtail the freedom to “irrational” beliefs.

Without going into the merits of the case above, it may be pointed out courts in India adjudicate on contentious religious practices only when their intervention is sought under Articles 32 or 226 of the Constitution. If courts in the past subjected certain religious practices to the essentiality test, it was only because those traditions, apart from not being essential to their faith, were violating the Constitution.

For instance, in the triple talaq case, Justices Nariman and U U Lalit—two of the three judges who delivered the majority judgement—showed us how it is possible to harmonise the concepts of constitutional justice and Islamic egalitarianism without undermining the religious freedom guaranteed in Article 25(1).

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On the one hand, they pronounced talaq-e-biddat to be “manifestly arbitrary” and violative of Article 14 because it allowed a Muslim man to break his marriage “capriciously and whimsically” without attempting to save it through reconciliation. On the other, the judges endorsed the comprehensive Quranic procedure of divorce—already upheld by the Supreme Court in the Shamim Ara case (2002), which gives a Muslim husband no room to arbitrarily exercise his right to divorce.

As is evident, the top court was not trying to reform Islam, but only verifying if a certain controversial legal custom was really a part of Islam and, if so, was it compatible with the provisions of the Constitution. Talaq-e-biddat was set aside because it failed this test, and the Quranic procedure of talaq was upheld because it aligned with constitutional values.

Put differently, even essential religious practices cannot violate Constitution to be recognised as a fundamental right. Else, the clause in Article 25—“subject to public order, morality and health and to other provisions of [Part III of the Constitution]”—will cease to be of any meaning.

To uphold a person’s decisional autonomy some cite Bijoe Emmanuel & Others vs State of Kerala (1986), in which the Supreme Court ruled that even if a religious belief or practice does not appeal to anyone’s reason or sentiment, it would attract the protection of Article 25 if it is “genuinely and conscientiously held as part of the profession or practice of religion”.

The idea is to point out that a religious practice may be allowed based on an individual’s conscientious belief without subjecting it to the essentiality test where belief is primarily ascertained with reference to community-endorsed doctrines of the religion, as laid down by the Supreme Court in Shirur Mutt (1954) and in Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami vs State of Tamil Nadu (1972).

However, religious communities are almost always controlled by patriarchs who decide what constitutes an essential religious practice and impose it on all followers without giving them the freedom to dissent. And dissent is often construed as apostasy or blasphemy, and punished.

Hence the need for judicial intervention in a secular democracy to protect individual rights within a community. Otherwise, the freedom of conscience available to reformists within a religious group to challenge outdated doctrines and authoritarian edicts will be seriously compromised.

Political philosopher Will Kymlicka calls this, citing John Rawls, the idea of “rational revisability” that gives believers the right to rationally evaluate and revise existing conceptions of faith. Kymlicka’s fear is fundamentalist religious groups often feel threatened by liberalism’s emphasis on autonomy, and therefore, try to raise their children in such a way as to minimise the opportunities for them to develop or exercise the capacity for rational revisability. The ultimate goal, says Kymlicka, is to ensure that members are indeed ‘embedded’ in the group, unable to conceive of leaving it or to succeed outside of it.

For these reasons, the higher judiciary, being the final arbiter of disputes under Articles 32 and 226, cannot be asked to refrain from intervening in questions of faith because its withdrawal from the adjudication of religious matters would be fraught with grave consequences. It would leave the field wide open for the patriarchal clergy to take over.

Justice D Y Chandrachud grappled with this question in the Sabarimala case. After citing legal scholars opposed to the idea of courts donning a reformatory role through the essential religious practices doctrine, he homed in on the anti-exclusion principle which limits the autonomy of religious groups “in situations where these groups are blocking access to basic goods”. Agreeing with this precept, the justice held that “where a religious practice causes the exclusion of individuals in a manner which impairs their dignity. The freedom of religion must give way to the over-arching values of a liberal constitution”.

Ideally, religious institutions would appreciate the constitutional vision of equality, justice and rationality, and reform themselves internally. But the courts cannot be expected to wait till this happens.

A Faizur Rahman

Secretary-General, Islamic Forum for the Promotion of Moderate Thought

(Views are personal)

(themoderates2020@gmail.com)

(On X @FaizEngineer)

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