Law, Religion and Judicial Approach

Introduction:

Bible says "Obey The Law Of The Land For God". It is the one which put it there, so we need to follow the law of the land; if we refuse to obey it, the punishment will follow. As per Romans 8:4, the righteous requirement of the law must be fulfilled in us, we should follow the path not according to the flesh but according to the spirit. It implies that the spirit of law shall prevail over the letter of the law. When the law is not followed in its true spirit, then Judiciary has the power to take the front seat enabling the law to be followed in its true spirit by setting judicial precedents. It is justified by a Latin maxim fiat justitia ruat coelum which means "let justice be done though the heavens fall" which ordinarily signifies that justice must prevail regardless of its consequences.

Religion and Law:

The meaning of the term "religion" was intentionally not codified by the makers of the Constitution because of the diverse religion followed by people of our country and there is no universal meaning of religion which applies to all. However the Constitution of India guarantees the individual's Right to Freedom of Religion under Article 25 & 26 of Constitution of India, but this freedom is not absolute and subject to the constitutional morality, public order and other provision given in Part III of the Constitution. Certain restrictions are imposed here to safeguard the security and welfare of all in the country because no freedom can flourish in a state of disorder; therefore duty lies on state to maintain peace and order in the society.

Also, orders prohibiting such a procession in the interest of the public order and morality will not amount to infringement of Article 25 of the Constitution. If there is any religious practice which is against public order and morality, then the State must declare such acts as illegal. Even in the past, the country has imposed extensive regulations on the exercise of religion in the interest of public peace and order. If the enjoyment of a right by a person imposes threats to public peace and order of the State, then the Indian Constitution authorizes the state to put a restraint on the enjoyment of such rights. Article 19(2) of the Constitution authorizes reasonable restriction upon the freedom and expression and speech of a person in the interest of public order.

In cases where there is a threat to peace or communal harmony, then even a complete prohibition of religious procession can be imposed by law. Licensing of the religious procession is done when such religious practices intend to wound the religious sentiments of any community or promote disharmony between religious, linguistic or racial groups. With this view, many states have passed a number of legislations including Prohibition of Slaughter of Cow, Dowry, Sati Pratha, Propagation of Religion by Fraud, Force, Allurement etc. in the interest of justice, morality and good conscience to maintain law and order in the society.

In the landmark case of the State of Bombay vs Narasu Appa Mali, it was held that a sharp distinction must be drawn between religious faith and religious practice. The state protects the religious belief or faith of its citizens. However, when the religious practice is prejudicial and detrimental to public order or morality or health or policy of social welfare of the state, then the religious practice must give away for the good of the people of the country as a whole.

In a country like India where various religious communities having diametrically opposed belief systems and practices live side by side all over the country, it is not possible to permit them all to exercise their different religious beliefs to the fullest possible measure. Only those faith, belief which are constitutionally moral can be preserved. The faith, belief which does not infringe other constitutional provisions are considered to be constitutionally moral acts and without constitutional morality, the operation of a belief, custom, faith tends to become arbitrary, erratic, and capricious. This was highlighted in NCT Delhi vs  Union of India where the Court observed that constitutional morality appropriately means the morality that has to inherit elements of the constitutional norms and conscience of the Constitution.

Judicial Interventions:

The Constitution of India postulates a separation between a Secular Domain and Religious Domain. The state can exercise its power to regulate secular domain, whereas no interference by the state can be exercised in the religious domain. However, courts of law are often called upon to decide a multiplicity of cases relating to religion to have an overarching impact on such religious conceptions and practices. This idea presumes that there is a possibility to distinguish between the "secular" and the "religious" practice, which is not explicitly given in the Constitution. It is upon the Courts to establish, from case to case, the activities or situations that can be considered secular, upon which court can pass judgment and those that are religious remains out from the jurisdiction of the court.

The Indian Judiciary plays a vital role in wiping out the complication in the law relating to religion. Ultimately it is the Judiciary which has the power to interfere and clear the clouds in the matter of religious practice in conflict with Constitution.  One of the contributions of Judiciary is the evolution of Essential Religious Practice Test. The ELP doctrine was first applied in The Commissioner, Hindu Religious Endowments, Madras vs Shri Lakshmindar Thirtha Swamiyar of Shri Shirur Mutt. The essential part of religion means the core belief upon which religion is founded or based and giving away such practice leads to any radical change in the character of the religion in a manner that the practice, faith cannot be continued after that or it hampers the core of such religious practice.

Judiciary often applies the ELP test to determine the practices which are essential and integral to the religion and not just based on superstitious belief. In Durgah Committee vs Hussain Ali the court made an observation which stated that no remedy would be provided to superstitious, peripheral and unnecessary religious practice and only such religious practices which fall under ELP test are entitled to protection under article 25 & 26 of the Constitution. ELP are broadly classified in the following ways:

1. First, the court determines the test to decide which religious practice are eligible for constitutional protection.

2. The court applies the test to decide the legitimacy of legislation for managing the religious institution.

3. The Judiciary brought this doctrine to check the extent of independence that can be enjoyed by religious denominations.

These are the three reasons that the Judiciary applies to determine in the matter of religion. While it was widely contested that whether the court has the power to decide the essential religious practice, the judges held that irrespective of a religious practice being essential or not, the constitutional values shall prevail over essential religious practice.

ELP was again discussed to its length in The Indian Young Lawyers Association & Ors. vs the State of Kerala and Ors by the Supreme Court where the main issue was whether the complete exclusion of women aged from 10 to 50 years of their Right to Worship in the temple is based on a biological phenomenon, constituted an essential part of religion?

Since no evidence exists which support such discriminatory religious practice. The court held that the practice of disallowing women from entering the temple cannot be considered as an ELP of the Hindu religion. Thus barring women from entering into the temple would violate their fundamental right. The review petition of the said judgement is pending before the Supreme Court.

Concluding Thoughts:

Dr. Ambedkar rightly interpreted religion not as a means to the spiritual salvation of individual souls, but as a 'social doctrine' for establishing the righteous relations between men. He defies the orthodox practice of religion, affecting any gender or caste.

It seems ironic that while human rights instruments proclaim that everyone is equal, traditional religious practices hamper the attainment of this fundamental truth. Such type of situation creates an unpleasant environment where the practice of one conservative religious group or person discriminates against another community, gender, class or group of their right to equal treatment in the name of religion. Such superstitious belief or faith in the name of religion abrogates one's fundamental right under the Constitution of India which need to be removed from its root. Religious practices which are in harmony with the Constitution of India without affecting the public order and morality can only be continued.

In such circumstances, the Judiciary and Legislature safeguard and protect the aggrieved section of the society. In the matters of religion where personal laws seem to be barbaric or orthodox, then it is upon Judiciary to strike down such laws/practices or upon the legislature to regulate such laws/practices that are against the spirit of the Constitution of India and required for a progressive society.

The opinions expressed in this blog are those of the author's. They do not purport to reflect the opinions or views of the SCLHR or its members.

R. v. Wilkes, (1770) 4 Burr 2527 (1558-1774) All ER Rep. 570

Dr. Amit Kumar Ishwarhai Parmar, Exercise of Religious Freedom subject to State restriction under Indian Constitution,Allresearchjournal.com (May19, 2020, 1:45 AM), http://www.allresearchjournal.com/archives/2015/vol1issue11/PartB/1-10-161.pdf

Bombay vs. Narasu Appa Mali, (1952) AIR 82 BOMB

Gilles Tarabout, Ruling on Rituals: Courts of Law and Religious Practices in Contemporary Hinduism, South Asia Multidisciplinary Academic Journal (May20, 2020, 2:50 AM), https://journals.openedition.org/samaj/4451

Scott C. Idleman, The Role of Religious Values in Judicial Decision Making, Repository.law.indiana.edu (May21, 2020, 4:45 PM), https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1479&context=ilj

The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Thirtha Swamiyar of Shri Shirur Mutt, (1954) AIR 282, 1954 SCR 1005.

Dargah Committee, Ajmer v. Syed Hussain Ali, (1961)  AIR 1402, 1962 SCR (1) 383

Indian Young Lawyers Association and Ors. v. State of Kerala and Ors., (2017) SCC.

Alison Stuart, Right to Freedom of Religion: A Gendered Difference, Repozytorium.amu.edu.pl, (May22, 2020, 3:40PM),https://repozytorium.amu.edu.pl/bitstream/10593/13992/1/Journal%20of%20Gender%20and%20Power%202015%20No.3%20%281%29AlisonStuart.pdf