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Judicial Intervention on Religious Matters-A Threat to Secularism?

Secularism is one of the most prominent aspects of the Indian subcontinent. It is also one of the basic features of the Indian Constitution. In recent times, the Judicial review has attained its zenith and the Judiciary is ruling more on the rituals. The authors herein would first provide the basic meaning of religion and then would touch upon the strands of public morality and constitutional morality principles.

Then the authors would reflect upon the significance of Secularism and the intervention on secular acts by the State. Further, the authors would proceed further to the judicial intervention on religious matters, whereby the authors would be critically analyzing the Essential Religious Practice test formulated by the Hon’ble Supreme Court with reference to various Apex Court judgments. Finally, the authors would conclude by stating that the Judiciary should be more conscious with regard to such matters since similar cases are fas approaching the doors of the Supreme Court.

India being a land of rich cultural heritage, numerous beliefs and various practices, has diverse types of customs and religions being practiced since time immemorial. Every individual in India, right from their birth have an identity based on caste, race, status and religion. It is a Himalayan task to trace the roots of each religion being practiced and understand its history.

With religion as a whole creating a huge impact in Indian history it was indeed necessary to create a proper framework and give a legal backing to various practices. Religion, religious sentiments and religious practices, is a highly sensitive subject matter as such issues often turned violent and reached its peak during the pre-independence period. Post-independence, with the Indian Constitution coming into force, right to practice any Religion was guaranteed as a constitutional right under Part III of The Indian Constitution.

Religion And The Indian Constitution:

It is a peculiar fact that the term religion was intentionally not given a definition by the makers of the Constitution. With this definition left open ended, what exactly constitutes a religion under the constitution is not definite or is still uncertain, but this does not mean any practice could fall under the term of a religious practice or a religion. In other words, as Right to Freedom to practice religion under Article 25 and 26 of Part III of the Indian Constitution is subject to public morality, public order and public health.

To preserve the cultural rights, Art. 25 of the Constitution not only guarantees the right to follow any religion but also to profess, practice and propagate religious beliefs.The rights seemed under Articles 25 & 26 are not absolute or unfettered but subject to legislation by the State limiting or regulating any activity, economic, financial, political or secular which are associated with the religious behalf, faith, practice or custom and that they are also subject to social reform by suitable legislation.1

Therefore, the rituals, ceremonies and modes of worship exercised in pursuance of such religious beliefs are also governed and protected under Art. 25.2

The approach to construe the protection of religion or matters of religion or religious practices guaranteed by Articles 25 and 26 must be viewed with pragmatism,3 since by the very nature of things, it would be extremely difficult, if not impossible, to define the expression religion or matters of religion or religious belief or practice.4

It is not every aspect of religion that has been safeguarded by Articles 25 and 26 nor has the Constitution provided that every religious activity cannot be interfered with.5

Religion, therefore, cannot be construed in the context of Articles 25 and 26 in its strict and etymological sense. The Apex court of India held that every religion has basic fundamental principles to be followed by the followers without which the following of a religion is in vain, still such essential requirements can be examined by the Supreme Court of India and even if a particular activity constitutes the essential part of a religion, its utility can be examined by the court.6Belief must be of an essence of that religion.7

Subject to the restriction which this article imposes, every person has a fundamental right under our constitution not merely to entertain such religious belief as may be approved of by his judgement of conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for edification of others.8Matters of conscience come in contract with the state only when they become articulate. Freedom of practice includes right to give it expression in forms of private and public worship.9

Subject To Public Order:

The term Public order has a very wide connotation and is considered to be the basic need in any organized society. It implies the orderly state of society and community in which citizens can peacefully pursue their normal activities of life.10Public order has a narrower ambit wherein could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality.

The potentiality or degree of a religious practice to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order is to be considered while deciding on the constitutionality of that practice and its protection under Article 25.

Public Morality And Constitutional Morality:

The whole society in a country like India is governed by morals and values. Each person is governed by their choices and morals but what the society collectively feels as morality is to be considered. A practice or value can be brought under the concept of morality only when the majority of the society or public put forward such a practice or value as a code which is to be followed. Such a code has to prudent and should have rationale behind it for it to be practiced. Merely setting forth the code does not suffice, the code should be recognised and followed.

What is considered wrong by the society is not necessarily legally wrong and vice versa. Thus, the question arises on how public morality is to be treated when taken into consideration. The definition of morality is not definite, giving a wide connotation. The term morality occurring in Art. 25(1)of the Constitution cannot be viewed with a narrow lens so as to confine the sphere of definition of morality to what an individual, a section or religious sect may perceive the term to mean.

In the case of State of Bombay v. Narasu Appa Mali 11, it was held that:
A sharp distinction must be drawn between religious faith and belief and religious practices. What the state protects is religious faith and belief. If the religious practices run to counter to public order, morality or health or a policy of social welfare upon which the state has embarked, then the religious practices must give away before the good of people of the state as whole.

With changing trends on society and concept of public morality the courts have adopted the concept of constitutional morality. This concept of constitutional morality was discussed in the case of Suresh Kumar Koushal v. Naz Foundation 12, the learned senior counsel for the petitioners argued that the 2 judge bench had been guided by social morality leaning on majoritarian perception whereas the issue, in actuality, needed to be debated upon in the backdrop of constitutional morality.

It must be remembered that when there is a violation of the fundamental rights, the term morality naturally implies constitutional morality and any view that is ultimately taken by the Constitutional Courts must be in conformity with the principles and basic tenets of the concept of this constitutional morality that gets support from the Constitution. Constitutional morality in a pluralistic society and secular polity would reflect that the followers of various sects have the freedom to practice their faith in accordance with the tenets of their religion.

The Preambular goals of our Constitution which contain the noble objectives of Justice, Liberty, Equality and Fraternity can only be achieved through the commitment and loyalty of the organs of the State to the principle of constitutional morality.13

In Government of NCT of Delhi v. Union of India 14, it was observed:- "Constitutional morality, appositely understood, means the morality that has inherent elements in the constitutional norms and the conscience of the Constitution.

With this changing trend in understanding the concept of morality by the judiciary, there has been a huge evolution in the cases of Religion and the constitutionality of particular practices. It is pertinent to note thatreform made by the state legislature should not change the entire acts or practices in pursuance of religion.It is a clause which provides that where there is a conflict between religious practice and the need for social reform, religion must yield. The state has to ensure that in the name of social reform should not affect the very essence of any religion. Social reforms mean eradication of practices which should not form the essence of religion or a practice which recognizes their existence or identity.

The Supreme Court in the case of Sardar Sydena Taher Saifuddin Saheb v. State of Bombay 15 observed that the exception carved in Art. 25 (2) of the Constitution of India to the Freedom of Religion enabling the state to enact laws providing for social welfare and reform was not intended to enable the legislature to reform a religion out of its existence or identity. It was also stated that even while bringing in such a social reform it is not permissible to change the entire practice or acts done in pursuance of such religion.

Art. 25(2)(b) sanctions only social and not religious reform. Hence it is the duty of the court to ensure that in the name of effecting social reform, the legislature does not efface a religion altogether, by doing away with its basic or essential doctrines or practices.The concept of social reforms was inherited by the Indian constitution under Article 25(2)(b) without impairing the freedom of religion.


The principle of secularism has been enshrined under Art.25 of the Indian Constitution, which is a non-discriminatory right and the Hon’ble Supreme Court had reiterated that liberty of thought, expression, belief, faith, and worship as a part of the basic structure of the Constitution.16Secularism is neither supporting any one particular religion nor a concept opposing any religion but it is a positive concept of treating all religions equally. Religion is more of a sense of belief which is followed by a group of people or even an individual.

But this does not mean that any practice followed by a particular sect or a group of people in the name of religion cannot be termed as a religious practice or secularism. The very idea of secularism followed in India is entirely different from other western countries where the state does not interfere with religious matters, however in India the State takes all measures to preserve & promote the age-old customs & traditions, which gives the country a unique identification among other countries across the world, it has also recognized secularism as a basic structure of the constitution.17

The concept of Secularism is flexible and the western classical theories have given significance to the Wall of Separation model of Secularism. This model of Secularism says no to expression of religious feelings in public. It has been so because of the aggravated globalization and migration in the European countries. On the other hand, Indian secularism is influenced by numerous local factors.

It is also clear from the constitutional scheme that it guarantees equality in the matters of religion to all individuals and groups irrespective of their faith emphasizing that there is no religion of the state itself. The Preamble of the Constitution read in particular with Art. 25 to 28 emphasis this aspect and indicates that it is in this manner this concept of secularism embodied in the constitutional scheme as a creed adopted by the Indian people has to be understood while examining the constitutional validity of any legislation on the touchstone of the constitution.18

Intervention of The State:

The State can intervene or regulate freedom of religion and the practices. There several legislations passed by the parliament in regulating various religious practices. A religious practice is associated with personal law. However, the personal law operates under the authority of the legislation19and not under the religion and therefore, the personal law can always be superseded or supplemented by legislation.20Art. 25 allow the state to regulate secular Activities connected to religion.21

In the case of State of Bombay v. Narasu Appa Mali 22, it was held that
A sharp distinction must be drawn between religious faith and belief and religious practices. What the state protects is religious faith and belief. If the religious practices run to counter to public order, morality or health or a policy of social welfare upon which the state has embarked, then the religious practices must give away before the good of people of the state as whole.Any practice followed because of religious belief is such that it does not cause any harm to the society and the people, then it is permissible.

It is for the Legislature to decide what constitutes social reform. They are responsible for the welfare of the State and it is for them to lay down the policy that the State should pursue. Therefore, it is for them to determine what legislation to put upon the statute book in order to advance the welfare of the State. Entries 1-2 of the concurrent list authorize the union and the state legislatures to create and punish for offences in order to enforce any Act which contravenes any of the provisions in Art. 25, i.e., public order, morality, social welfare or reform.23Thus, both the State Legislature and the Parliament has the power to intervene in religious practices. But most of the Acts passed by the State are often on the lines of the rulings of the judiciary.

Judicial Intervention On Religion:

The Indian Judiciary has an inevitable part in clearing lacuna in law relating to religion. It is very evident that the State can govern only the secular acts whereas with regard to the religious acts, the Constitution of India provides protection from the interference of State in religious matters. Ultimately, it is the Judiciary which alone has the right to interfere in the matters of religion and religious practices. One of the contributions of the Indian Judiciary in that field is the ERP (Essential Religious Practice) test.

The Essential Religious Practice Test:

The Essential Religious Practice test emerged in India by virtue of the obscurity in the Shirur Mutt case24. The Hon’ble Supreme Court obliterated the assertion test, where the only basis to prove a particular act was not secular was the ‘assertion’ of a high capacious priest stating the same. The Essential Religious Practice test was brought in as a replacement to this test.

Religion- A Cluster of Intricately Connected Practices:

The protection guaranteed under Articles 25 and 26 of the Constitution is granted to the acts done in pursuance of the religious rituals and ceremonies, modes of worship, beliefs, practices which are integral or essential part. For determining as to whether such beliefs and practices are integral or essential part of the religion has to be determined with reference to its doctrines, practices, tenets, historical background etc. of the given religion.

The essential part of a religion means the core beliefs upon which the religion is founded. The essential practices mean those practices that are fundamental to follow a religious belief. One of the tests which has been applied is to see if the taking away of that part or practice could result in a fundamental change in the character of religion or its belief and if it does change, then such a part be treated as an essential and integral part. Belief must be of an essence of that religion.25

Also, in the case of Durgah Committee v. Hussain Ali, the court held that:
Articles 25 and 26 provide only essential and integral parts of religion immunity from state intervention. It also held that the immunity is provided not only to matters of doctrines or belief; but it extends to acts done in furtherance of religion such as rituals, observances, ceremonies, modes of worship which are considered to be fundamental parts of the religious practices. The Court also made an observation which stated that no immunity would be provided to superstitious, peripheral and unnecessary religious practices.26

In order to determine whether a particular act constitutes an essential religious function or not, reliance needs to be placed on the doctrines and religious texts of that particular religion.27

The essential practices test has been used by the Court to decide a variety of cases.
These can be broadly classified under a few heads:
  • First, the Court has taken recourse to this test to decide which religious practices are eligible for constitutional protection.
  • Second, the Court has used the test to adjudicate the legitimacy of legislation for managing religious institutions.
  • Finally, the Court has employed this doctrine to judge the extent of independence that can be enjoyed by religious denominations.
Religious practices or performances of acts in pursuance of religious beliefs are as much a part of religion as faith or belief in particular doctrines. No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate. 28

# It is very much evident that the Supreme Court of India has managed to provide the definition of religion and sketching boundaries to the fundamentals of religion with respect to the Indian Constitution. The Judges are given the sole authority to determine whether a religious practice is integral to the religion or not. One cannot bifurcate the practices of a religion into essential and non-essential practices without understanding that religion in deeper sense. Having assumed the power greater than any religious leader, they acted as a theological authority so as to determine the practices which were essential for a religion.29

The issue of what constitutes an essential religious practise is for the religious community to decide.30

Also, it is pertinent to note that a religion is a bundle or cluster of practices that cannot be separated. Those practices collectively construe a religion and one cannot term such practices as essential or integral and such other practices as non-essential or non-integral. It is true that there are practices that form the core of a religion. It does not mean that other practices are non-essential.

The so called non-essential practices are so intricately connected with the fundamental part of the religion so that they cannot be separated from one another. Even the failure to perform or malperformance of a non-integral part of a religion can affect the fundamental tenets of a religion to an extent.

Religious And Secular Acts Are Inextricably Mixed Up:

In Mohammad Hanif Qureshi Vs. State of Bihar 31the Supreme Court held that the prohibition on cow slaughter is not in violation to the freedom of religion of Muslims and declared that cow slaughter is not an integral part of the religion. In that case, there arose a chaotic situation to differentiate a secular act and a religious act.

In the case of Bira Kishore Deb v.State of Orissa 32,the court held that:
Sevapuja comprised of two aspects one of which was concerned with the materials to be offered in the Sevapuja which was, in essence, a secular function and the act only regulated that part of the Sevapuja33

The Apex Court in the case of Seshammal v.Stateof T.N., held that:
archakas and priests are temple servants and that matters concerning their appointment, emoluments and the benefits fall within the ambit of secular activities susceptible to interference by the state.34

ØIt is true that the decision of the question as to whether a certain practice is a religious practice or not, as well as the question as to whether an affair in question is an affair in matters of religion or not, may present difficulties because sometimes practices, religious and secular, are inextricably mixed up.35

The regulation of administration and governance of the religious institutions or endowments would amount to restriction on the religious practices or freedom of religion, since establishment, maintenance and administration of the religious institutions and endowments are intertwined with the very religious faith itself.

With respect to this scenario, the private life of the individual, and the public life of the community, were inextricably bound together.37

Thus, when the Court tries to draw a boundary between religious and secular acts, it seems to be controversial, and is certainly not a universally acceptable consensus. The undeniable fact is that there is no objective method to perceive the nature of a particular act. The conceptions of religious and secular acts are strongly imbedded in one another and they are remarkably subjective. The apex court has held that the state shall not interfere in the matters of religion or any other incidental matter which is directly and substantially linked to it.38

By virtue of this, the State is prevented from interfering in the matters of religion. Ironically, the State is permitted to make laws regarding the secular matters, which are substantially linked to the religious matters.

Rationalization of Religion:

In Commissioner of Police v. Acharya Jagdishwaranand Avadhuta 39,the court held that the Tandava dance performed by Ananda Margis do not form the part of essential religious practice upon examining several religious texts and religious practices of the Amanda Margis.

Also in the infamous case, Indian Young Lawyers Association v. The State of Kerala, 2018,the Supreme Court prohibited the practice of non-entry of women into the temple based on the religious texts and evidences.

In the case The Durgah Committee, Ajmer v. Syed Hussain Ali 40 Justice P B Gajendragadkar added the secular requirement of rationality to the essentiality test. Durgah Committee denied validity to practices (which) though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself.

ØIf courts started enquiring and deciding the rationality of a particular religious practice, then there might be confusion and the religious practice would become what the Courts wished the religious practice to be.41It is to be noted that what constitutes a superstitious belief is subjective and a belief may be superstitious to one person whereas it may not be the same for another person. My fundamental or core belief may be seen as a superstition to another person.

The judiciary has utilized this test to exclude the non-essential practices from constitutional protection. One cannot deny that this test deprives individuals and institutions from the full enjoyment of the right to freedom of religion and is not enhancing the same. Placing reliance upon limited and certain religious texts to define the essential or fundamental practices is not a convincing methodology. Justice Malhotra keenly observed that Notions of rationality cannot be invoked in matters of religion by courts.42Thus, the Supreme Court uses the Essential Religious Practice test as the tool for rationalization of religion and religious practices.

A Threat To Indian Secularism?

The Apex court of India held that every religion has basic fundamental principles to be followed by the followers without which the following of a religion is in vain, still such essential requirements can be examined by the Supreme Court of India and even if a particular activity constitutes the essential part of a religion, its utility can be examined by the court.43It is pretty clear that irrespective of whether a practice is essential or not, the practice should subscribe to the Constitution. The most striking aspect of the essential practices doctrine is the attempt by the Court to fashion religion in the way a modern state would like it to be rather than accept religion as represented by its practitioners.44

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens…. Says the Preamble of the Indian Constitution. Secularism is an integral aspect of the Preamble, which is also included as the basic structure of the Indian Constitution. Secularism does not only separate religion and the state. It also means accepting every religion and religious tolerance.

This feature of Indian Secularism keeps the country unique from other countries. The State as well as the Judiciary, by consequently disturbing this framework, restricts people from enjoying their freedom of religion. Is it not amounting to religious intolerance? Keeping eye on the fundamental rights alone, are we giving up our unique feature of Secularism, which is also a part of basic structure? These are some among many questions that are to be reflected upon.

If I were a dictator, religion and state would be separate. I swear by my religion. I will die for it. But it is my personal affair. The state has nothing to do with it. The state would look after your secular welfare, health, communications, foreign relations, currency and so on, but not your or my religion. That is everybody's personal concern! -Mahatma Gandhi

Flowing from this idea, it can be inferred that the State has nothing to do with religion. A line has to be drawn between religious and secular acts and the courts should make sure that they do not indulge much on the religious freedom granted to the people of India. Unity in diversity is one phrase which is seen across the globe as one of the striking and unique aspects of the Indian territory. In spite of many hurdles due to the diversities, the Indian subcontinent still manages to stand taller than many of the monolithic countries. Keeping an eye on the Indian Judiciary and the cases which are to be heard in future, it is high time to reflect upon the fact that the secular nature and the uniqueness of India should not be lost sight of.

  1. N. Adhithayan v. Travancore Devaswom Board, A.I.R. 1996 Ker 169
  2. Tilakayat Shri Govindalji Maharaj v. State of Rajasthan, A.I.R. 1963 S.C. 1638
  3. S.P.Mittal v. Union of India, A.I.R. 1983 S.C. 1
  4. Shayara Bano v. Union of India, A.I.R. 2017 S.C. 4609
  5. Ismail Faruqui v. Union of India, (1994) 6 S.C.C. 360
  6. The Divyadarsan Rajendra Ramdasji v. State of Andhra Pradesh, 1970 SCR (1) 103 (India)
  7. Ref. Commissioner of Police v. Acharya Jagdishwarnanda Avadhuta, (2004) 12 S.C.C. 770 (India)
  8. Ratilal Panachand Gandhi v. State of Bombay, (1954) S.C.R. 1055
  9. The Commissioner. H.R.E v. LakshmindraThirtha Swamiar,(1954) S.C.R. 1005
  10. Kamlalar Shankar Patil v. B. Akashi, (1994) Cr. LJ 1870
  11. A.I.R. 1952 Bom. 84
  12. (2014) 1 S.C.C. 1
  13. Navtej Singh Johar v. Union of India Law Ministry,
  14. 2018 (8) SCALE 72
  15. A.I.R. 1962 S.C. 853
  16. Kesavananda Bharati v. State of Kerala, (1973)4 S.C.C. 225
  17. S.R Bommai v. Union of India, (1994)3 S.C.C. 1
  18. M. Ismail Faruqui v. Union of India, A.I.R. 1995 S.C. 605.
  19. Amar Singh v. Baldev, A.I.R. 1960, Punj. 666 (668) (FB).
  20. Sarla Mudgal v. Union of India, A.I.R. 1995 S.C. 1531
  21. Bhuri v. State of Jammu and Kashmir, A.I.R. 1996 S.C. 1765
  22. A.I.R. 1952 Bom. 84
  23. Saifuddin v. Tayebji, A.I.R. 1953 Bom. 183
  24. Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshimindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282
  25. Ref. Commissioner of Police & Others v. Acharya Jagdishwarnanda Avadhuta and another, (2004) 12 S.C.C. 770 (India)
  26. AIR 1961 SC 1402
  27. Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853
  28. Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshimindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282
  29. Acharya Jagdishwaranand Avadhuta v. Commissioner of Police AIR 1990, Cal. 336
  30. Indian Young Lawyers Association at 30
  31. AIR 1958 SC 731: 1959 SCR 629
  32. AIR 1964 SC 1501
  33. AIR 1958 SC 731: 1959 SCR 629
  34. AIR 1972 SC 1586
  35. Tilkayat Shri Govindlalji Maharaj v. The State Of Rajasthan And Others, 1963
  36. Pannalal Bansilal Pitti & Ors. Etc v. State Of Andhra Pradesh & Anr, 1996 SCC (2) 498
  37. Bhatia, Freedom From Community, 359
  38. Dara Singh v. Union of India, A.I.R. (2011) S.C. 1436 (India)
  39. (2004) 12 SCC 770
  40. A.I.R. (1961) S.C. 1402 (India)
  41. Acharya Jagdishwaranand Avadhuta v. Commissioner of Police AIR 1990, Cal. 336
  42. Indian Young Lawyers Association at 45
  43. The Divyadarsan Rajendra Ramdasji v. State of Andhra Pradesh, 1970 SCR (1) 103 (India)
  44. The Commissioner, Hindu Religious Endowments, Madras v. Sri. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, A.I.R. (1954) S.C. 82 (India)
Written By: K. G. Prithvi and L. K. Swaraj

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