Constitutional Validity of Discriminatory Religious Practices

Introduction

Religion is a phenomenon related to the belief & faith of a human being in some supernatural power i.e. either God or a natural force or a spiritual way of living life. It is a universal phenomenon & exists in different forms throughout the world owing to the different beliefs of different communities. Today, there are more than 4000 religions in existence & India has 8 major religions being followed across the country respectively by their followers. The followers of a religion believe in certain forms of worship &performance of other religious obligations or duties respectively which are commonly known as rituals, rites, customs, ceremonies, etc. Some practices are being followed from the beginning of the particular religious belief while other practices have evolved over a while & are now deeply rooted in that particular religious order. These religious practices are followed by the respective communities, but some practices are inherently discriminatory in nature & purpose which if questioned leads to conflict between the followers & the individuals questioning such practices.

Religion has a direct bearing on the society as it is a means of social control& subsequently when a religious practice seems to cultivate or promote discrimination it creates conflict in the minds of its followers leading them to question their faith. There are various religious practices which are discriminatory in nature due to their gender orientation, caste-based practices, inhumane treatment etc. but it is quite difficult to get rid of these practices or even to challenge such practice. The Preamble to the Indian Constitution provides for the liberty of belief, faith & worship. The Constitution makers of India incorporated the right to freedom of religion as a fundamental right in Part III of the Constitution. They tried to create a balance between the individual rights& religious rights of a community at large by including specific provisions regarding the limitations to this right. However, to prohibit a religious practice or to declare a religious practice unconstitutional owing to its discriminatory nature is not that easy &the judicial organ of the government plays a very important role in the same.

A Conflicting Issue

Religion is an inherent part of the society from time immemorial & more so in Indian society. All religious practices have been followed with avid interest by most people are considered sacred or divine &owing to this reason even the practices which are discriminatory in nature are followed with the same intensity, be it related to the performance of rituals or prohibiting entry of individuals belonging to certain social groups to the place of worship, etc. In earlier times, individuals seldom used to question a religious practice but with the growth of civilization &subsequent realisation among individuals of the wrongs emerging out of such practices people started questioning such discriminatory religious practices.

What are Discriminatory Religious Practices?

Religious practices which discriminate among its followers either due to gender, sex, caste, race, etc are discriminatory religious practices. These rituals or customs have the backing of the scriptures& other religious texts of the respective religious order but since these practices ignore an individual’s civil rights it gives rise to unwelcome conflict amongst its followers.

The religious practices like the prohibition of entry of Harijans/Dalits in some Hindu temples, restrictions on the entry of Muslim Women in Durgah/Mosque, Parsi Women married to a non-Parsi into the holy fire temple of Parsis, the prohibition of entry of women of the certain age group in Sabarimala temple, the practice of female genital mutilation in Dawoodi Bohra community of Shia Muslims, Appointment of Priests or Religious heads based on class or caste, etc are all discriminatory. All such practices are considered to be either discriminatory due to the inherent inequality in these practices in one way or the other or owing to immorality.

Freedom of Religion under the Indian Constitution

The right to freedom of religion is a fundamental right under The Indian Constitution which is available to every individual within the Indian territory.

Article 25 guarantees to every individual within the territory of India “freedom of conscience” and right freely to “profess, practice and propagate religion” however, this right is subject to public order, morality, health and other provisions of Part III & existing state laws or future legislation related to regulation or restriction of any economic, financial, political or secular activity associated with religious practice.

Article 26 provides all religious denominations or sections the right to manage its affairs in matters of religion which includes establishing & maintaining religious institutions as well, however, this right is also subject to public order, morality & health.

The above-mentioned provisions make it clear that the right to freedom of religion is not absolute & can be limited by the state. Now the most important question is how to decide whether a religious practice is against public order or morality since the followers have faith in such practices & they are the public themselves.

Judicial perspective on Religious Freedom &Related Practices

In the case of SriVenkataramanaDevaru v. State of Mysore[i], the opening of a Hindu public temple to all classes and sections of Hindus at all times was in question & it was held that when denominational rights given under Article 26 (b) don’t violate the individual rights provided under Article 25 substantially, then the denominational rights are to be allowed to the denomination. The decision of the High Court was upheld by the Supreme Court holding it just & reasonable.

  • Essential Religious Practices Test

In the Shirur Matt case[ii], it was observed by the honourable judges that whether a religious practice is essential is to be determined by the court concerning the doctrines of that religion itself. This came to be known as the Essential Religious Practice Test or the Doctrine of Essentiality.

This was further developed in the case of Durgah Committee, Ajmer v. Syed Hussain Ali[iii], wherein it was observed by Justice Gajendragadkarin a note of caution that the protection given to religious practices under Article 26 must be confined to such religious practices which are an essential and an integral part of the respective religions many religious practices are due to superstitious beliefs and may in that sense be extraneous and unessential accretions to the respective religion.

This is a test to determine whether custom or practice is essential to religion & it is to be done by finding out whether the nature of the religion will be changed without that part of the practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or its belief, then such part could be treated as an essential or integral part.

  • Applicability of The Essential Religious Practices Test

The Courts have used this test to decide a variety of cases in the following ways:

  • To decide which religious practices are eligible for constitutional protection under Article 26.
  • To adjudicate the legitimacy of legislation for managing religious institutions under Article 25 & 26.
  • To judge the extent of independence that can be enjoyed by religious denominations under Article 26

The current position regarding the constitutionality of Discriminatory Religious Practices in India

In the case of The Indian Young Lawyers Association &Ors. v. the State of Kerala and Ors.[iv] i.e. the Sabarimala Case, the religious practice restricting the entry of women in the age group of 10 to 50 in the SabarimalaTemplewas challenged. The restriction was because women of such age face menstruation& they are considered impure as per the discriminatory belief which was practised to pay respect to the celibate nature of Lord Ayyappa. It was held via majority decision that this was violative of the fundamental right to freedom of religion mentioned under Article 25 &was in violation of the right to equality as well. They observed that there was no scriptural evidence to prove that this custom was an essential part of the religion.

It was also observed that courts should protect constitutional morality over religious morality & that constitutional rights are above religious rights.

However, the exact position will be more clear once the 9-judge bench of the apex court headed by Chief Justice of India S.A. Bobdedecides the questions which have been put before it by a reference made to it by the 5-judge bench which was constituted to decide on the Sabarimala Review petition. The earlier bench by referring to the larger 9-judge bench had the intention to get a clear picture regarding the contentious issues of religious freedom vis a vis constitutional morality, essential religious practices, the extent of judicial review in such cases, etc. They even clubbed within this reference other pending cases on the subject of discrimination based on gender in religious places which includes female genital mutilationinDawoodi Bohra community of Shia Muslims[v], the entry of Parsi women married to Non-Parsis into the fire temple& perform other rituals in the temple and entry of Muslim women into mosques&access to the Mussalla (main worshipping area)[vi].

Conclusion

It can be concluded that since religion is an integral part of the Indian society the constitution-makers tried to protect the interests of both individuals & religious denominations. Moreover, people have deeply associated with religious beliefs & practices so any deviation from the traditional religious practices or criticism of them invites anguish from the followers even if the practice is inherently discriminatory as they feel that their faith is being questioned. This makes the role of all the organs of the government all the more important especially the judicial organ as any decision which tries to bring a change in a discriminatory religious practice to do justice & bring parity amongst its followers, even though it doesn’t have any impact on the real religious values or the religion itself but still, it may face severe backlash from the followers of the respective religious denomination who are not in favour of such change, as was witnessed after the judgement in the Sabarimala case.

So, the judiciary needs to tread with caution while dealing with such issues. The judiciary must ensure that in their approach to upholding the constitutional values based on liberty & equality, they need to strike a balance between the religious rights of an individual &the respective religious community, which is in the interest of the society as a whole.


Questions

  1. What are discriminatory religious practices?

answer any religious ritual, ceremony or custom which discriminates among its followers either based on gender, sex, caste, race, its cruel nature & promote inequality are considered as discriminatory religious practices.

2. Is Right to Freedom of Religion an absolute right?

No, right to freedom of religion is not absolute under the Indian constitution as it is subject to public order, morality, health& other provisions of Part III of the Indian Constitution as well as existing or future state laws related to regulation or restriction of any economic, financial, political or secular activity associated with religious practice.

3. Can the judiciary adjudicate matters related to religion?

Yes, since the right to freedom of religion is guaranteed under the Indian Constitution as a fundamental right & some restrictions are placed on the practice of religion, hence, the judiciary is empowered to adjudicate the matters related to religion as well as it safeguards the fundamental rights of all citizens.

4. What is the Essential Religious Practices Test?

This is a test evolved through judicial precedents by the honourable judges of the apex court which helps to determine whether custom or practice is essential to religion by considering whether the nature of the religion will be fundamentally changed without that part of the practice.

5. What is the issue related to the Sabarimala Case?

The issue involved in the Sabarimala case is the discriminatory practice of restricting women in the age group of 10 to 50 to enter the Sabarimala Temple of Lord Ayyappa because of belief wherein such women are considered to be impure because women of such age face menstruation.

References

  1. The Constitution of India
  2. Shankar Rao, C.N., Sociology- Principles of Sociology with an Introduction to Social Thought, S. Chand & Company Limited, 2009
  3. Pandey, J.N., Constitutional Law of India, Central Law Agency, 2018
  4. 9
  5. SCC Online
  6. https://blog.ipleaders.in/whether-all-discriminatory-religious-practices-are-unconstitutional/#_ftn8
  7. http://rsrr.in/2018/11/16/essential-religious-practice-sabarimala/#_edn4
  8. 2018 SCC online SC 1690
  9. Sunita Tiwari v. Union of India, W.P. (C) No.286/2017
  10. Yasmeen Zuber Ahmad Peerzada & Anr. vs Union of India, WP (C) 472/2019

11. 1958 AIR 255

12. The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Thirtha Swamiyar of Shri Shirur Mutt, 1954 AIR 282

13. (1962) 1 SCR 383

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