The makers of the Indian Constitution envisioned a model of secular political
system that under social welfare state will protect all religions while
progressing towards the enhancement of human dignity. The framers of the
Constitution intended to make India a secular state and hence, respected all
religions and established Article 25 and 26 which gave the citizens the right
and freedom to profess their respective religion and faith.
However, the right
envisaged under Article 25 and 26 tend to violate some of the other basic
fundamental rights of the citizens. This research paper makes attempt to
highlight how while interpreting Article 25 and 26, the judiciary have
historically adopted the bare text approach which has lead to a restrictive
approach and tend to leave a bad precedent. Further, we will be going through
various judgements to understand the reasoning behind the judiciary while
interpreting issues relating to the constitutional validity of religious
Evolution of the interpretation of Personal laws by Courts
The famous judgement of the Narasu Appa Mali case cast its shadow on other
courts with its interpretation of Article 13 and Personal laws. In this case,
the learned Chief Justice of the Bombay High Court, Chief Justice M.C. Chagla
held that personal laws are outside the purview of Article 13 and hence, the
courts have no jurisdiction to interfere with personal laws.
The Chief Justice drew a distinction between personal laws and customary laws
and stated that Article 13 (3) (a) while defining law, does not include Personal
laws. Further, the learned Chief Justice gave Article 13 (3)(b) a very narrow
interpretation by ignoring the word includes
which in the normal course,
should have given the sub section a much broader interpretation.
Chief Justice also stated that if the intention of the legislators was to
include personal laws in Article 13, they would not provide a separate Article
for untouchability (Article 17). It was also held that personal laws are not an
outcome of the legislature and hence, it cannot be included in Article 13(3)(b).
This judgement of the Bombay High Court acted as a precedent to many other
judgements having similar issues related to personal laws.
However, the Kerala High Court refused to accept the judgement of the Bombay
High Court. It was held by the Hon'ble Kerala High Court that personal laws in
itself are laws and they get their validity by the virtue of the sovereign and
hence, they are enforceable by a court of law.
To strengthen the arguments of
these courts rejecting the judgement of the Narasu Appa Mali case, this research
paper would focus on the word includes through a judgement. In P. Kasilingam
v. PSG College of technology
, it was held that the word includes is used in a
definition to give it an inclusive nature and not an exhaustive one and hence,
it should mean that the definition would also cover categories which are not
expressly mentioned in that particular definition. Therefore, respectfully,
we would disagree with the narrow interpretation given to Article 13 (3)(a) in
the Narasu Appa Mali case.
Some courts had a different interpretation as to whether the courts could
interfere with cases with respect to personal laws. It was held in Commissioner,
Hindu religious endowments, Madras v. Shri L.T Swamiar of Shirur Mutt
may be associated with a religion but not an essential religious practice of
that particular religion can be amendable by the state.
constitutes to be an essential part of a religion is to be primarily decided by
the doctrines of that religion itself. It is this judgement which gave rise
to the 'Doctrine of Essentiality' which was used in the judgements of Sabarimala
and Triple Talaq.
Doctrine of Essentiality
The doctrine of essentiality is a doctrine evolved by the courts to protect only
those religious practices which are essential and integral to that particular
religion. This Doctrine was established by the Supreme Court in the Shirur
case by a 7 Judge bench. It was held that the right to freedom of
religion not only protects the beliefs and ideas of a religion but also protects
the rituals and practices integral to a religion.
According to this doctrine,
whenever an issue pertaining to religious practices arises, the court will have
to go to the holy script of that particular religion and ascertain what the holy
book interprets it as. The courts will be able to amend the alleged religious
practice only if it can be ascertained from the holy books that the alleged
practice does not constitute to be an essential or integral religious practice.
Current interpretation of personal laws
In 2018, a Writ Petition was filed against the practice of exclusion of women
from the Sabarimala Temple. The Constitution validity of this practiced was
challenged in the Supreme Court. C.J Dipak Misra, J. Khanwilkar, J. Nariman and
J. Chandrachud formed the majority opinion and held that the alleged practice of
the exclusion of women from the Sabrimala temple was unconstitutional as it
violated Article 15(2) of the Indian Constitution. Following was the
hierarchical reasoning of the majority opinion.
- It was asserted that there was an absence of common religious tenets
which were peculiar to themselves (worshippers of Lord Ayappa), which they regard as
conducive to their spiritual well- being other than those which were of the
Hindu religions. Hence, the worshipers of Lord Ayappa did not constitute to be a
separate religious denomination but were actually Hindus. Hence, worshipers of
Lord Ayappa would be governed by the Hindu scriptures.
- Thereafter, the learned Judges confirmed that there was no such
provision in the Hindu law which prohibited Hindu women from entering
- As there is nothing stated in the Hindu scriptures that prevents women
from entering temples, naturally, the alleged practice cannot be considered
as an essential religious practice as claimed by the respondents.
- The majority opinion also confirmed that this practice is not followed
in all other temples of Lord Ayappa within the territory of India and therefore
there was no uniformity in this practice. Moreover, there was a time where women
used to enter this particular temple to offer worship to the deity.
- After ascertaining the above four points, the learned bench went ahead
to check the constitutional validity of the alleged practice.
Apart from the above pointers, Justice Chandrachud, in addition to those points,
was the only Judge who mentioned that a religious practice cannot be given
greater importance than the Fundamental Rights. He further stated that the Right
to Religious freedom (Article 25 and 25) is to be exercised without encroaching
upon other fundamental rights.
The dignity of women cannot be disassociated from
the right to religious freedom. The most important point which Justice Chandrachud states which this research paper follows is that
even if the claim of exclusion of women from entry into temples is founded in
the religious texts, it would violate the Constitutional values of liberty,
equality and dignity.
Triple Talaq Judgement
The petitioner filed a petition against the constitutional validity of
Talaq-e-biddat (a form of instantaneous divorce followed by Sunni and Hanafi
schools of Muslims). Justice Kurian, Nariman and Lalit formed the majority
opinion and held that the alleged practice of triple Talaq is
anti-constitutional. The learned bench went through the script of the holy
Quran to understand how the Quran interprets this practice. It was noted that
neither the Quran nor the Hadith recognized this practice.
The alleged practice
was followed by a few sects of Sunni and Hanafi Muslims, however, both these
sects considered that the practice is a sinful form of divorce. Further, it was
ascertained that the Quran did not encourage divorces and Talaq-e-biddat was an
instantaneous kind of divorce by which the former couple had no recourse to
The learned majority opinion cited Shamim Ara v. State of U.P
had stated what is bad in theology is bad in law as well. The majority
opinion also ascertained that including Talaq-e-biddat the Muslims followed
three types of divorces. Hence, the alleged practice could not be termed as an
essential or integral practice of the Muslims due to the above-mentioned reasons
and then went ahead to test the Constitutional validity of the alleged practice.
Critical Analysis behind the two judgementsSabarimala case
It is to be noted that this paper is not critiquing the final verdict but
critiquing only the reasoning behind the verdict, particularly the reasoning of
C.J Dipak Misra, Justice Nariman and Justice Khanwilkar. The aforesaid learned
judges, in their judgements, have kept personal laws at a position which is
higher than part three of the Constitution.
What is implied through this judgement is that if the worshipers of lord Ayappa did constitute to be a
separate religious denomination, the verdict would probably be in the favor of
the respondents. Further, if the respondents would prove that the alleged
religious practice did constitute to be an essential religious practice of this
separate religious denomination then, according to the Shri L.T Swamiar of
Shirur Mutt judgement (1954) the final verdict would have definitely gone in
favor of the respondents.
Triple Talaq case
The learned bench, before proceeding to test the Constitutional validity of the
alleged practice went to ascertain whether it was constituted to be an essential
religious practice. For this, the learned bench had to go through the script of
the Holy Quran. It is fortunate for the sake of the dignity of Muslim women that
the alleged practice was not recognized by the Holy Quran. In other words, if
the Quran recognized the alleged practice to be valid and to be good in
theology, the verdict would be in favor of the respondents.
The minority opinion
that constituted of Justice Khehar and Justice Nazeer refused to check the
Constitutional validity of the alleged practice because in their view the
alleged practice did constitute to be an essential religious practice in case of
Sunnis and Hanafis. By each of the learned bench's opinion, it can be construed
that the courts would not have jurisdiction to look into matters which
constituted to be an essential/integral religious practice.
The courts, instead of addressing the larger question such as the interplay
between freedom of religion and other fundamental rights judged the cases by
using the doctrine of essentiality. The Apex Court failed to answer how the two
alleged practices in the Sabarimala case and Triple Talaq cases are
unconstitutional at face value.
There is no apparent reason why Article 25 and
26 should be given preference over all other Fundamental Rights. Since the past
decades the Indian Courts, while adjudicating matters related to religion have
always kept religion at a pedestal which is higher than the law of the land (the
Constitution). Since the establishment of the Doctrine of Essentiality, the
courts have been using it as a camouflage to dispense justice and refrain from
answering the larger question in hand.
What is essentially happening is that the judiciary has become the custodian of
religion rather than the protector of the Constitutionally guaranteed religious
equality and freedom. By the current reasoning of the Judiciary through the
Doctrine of Essentiality, if the practices of female gender mutilations
practiced by some sects of the Islamic school constituted to be an essential
religious practice or an integral part of that religion, would the judiciary
allow the removal of the genitals of seven-year-old children in the name of
Mr. Tajamul Hussain, in the Constituent Assembly Debates on Article 26
stated that religion is a private matter between an individual and his
creator. In my opinion, religion is a private matter between an individual
and his creator as long as that religion is not violating any other individual's
Fundamental Rights. Fundamental Rights were established to protect the liberties
and freedom of the citizens against any invasion not only by the State but also
Religious practices can be practiced freely but not at the cost of an
individual's Fundamental Rights. According to B.R Ambedkar, Fundamental Rights
were the most citizen part of the Indian Constitution. It is the basic
requirement that every citizen of this country needs to live with dignity and
The layman interpretation of Article 25 and 26 would contradict the other
fundamental Rights. The courts had got multiple opportunities to clear this
contradiction through passing clearer judgements, however, on multiple occasions
the courts have dodged this question by using the Doctrine of Essentiality.
Respectfully, this research paper claims that the courts have failed to
interpret the right meaning of Article 25 and 26.
It was clearly stated by B.R
Ambedkar that it is not the purpose to give absolute rights in matters relating
to religion. This means the Courts have the jurisdiction to look into the
Constitutional validity of religious practices. Further, for a clearer
interpretation on this matter, Mr. Guptanath Singh stated that the state is
above all Gods, it is the God of Gods. By the words of Mr. Guptanath Singh,
it can be ascertained that the Constitution is above all religions and nothing
within the territory of India can violate the Constitution of this land.
Interpretation of Religion by other Countries
Hans Kelsen, an Austrian jurist, legal and political philosopher who was also
the author of the 1920 Austrian Constitution stated that once the courts are
obliged to apply customary laws to the decision-making purpose, they are
considered to be a law-creating fact just as a legislation. In other words, by
Kelsen's theory, if a customary law (including a religious practice) can be
enforced in a court of law, it naturally becomes a law and hence, the same can
be also amended by the courts.
The American courts made their interpretation on religious matters very clear
through the judgement of Reynolds v. United States
(1878). In this case, the
main question was whether a man who was permitted to practice polygamy by his
religion could practice the same in a country where such a practice was
criminalized. The learned jury held that freedom of religious beliefs cannot be
used as a reason to violate legislative restrictions. People cannot excuse
themselves from the law in the name of religion.
The jury further stated:
such practices, which are allowed in one's religion but are against the law of
the land are permitted, it would elevate religious beliefs above the law of the
land. It would effect to permit every citizen to become a law unto himself. The
jury, hence, held that the law of the land is above all other laws.
This research paper rides on the opinion that if a particular religious practice
is contrary to any of the Fundamental Rights as stated in part 3 of the
Constitution that religious practice should be held void to that extent. The
Fundamental Rights were established so that every citizen could be treated with
equality and dignity. Religious practices cannot be allowed to infiltrate into a
citizen's fundamental rights even if they constitute an essential religious
The Doctrine of Essentiality which the courts are currently following
is arbitrary to the modern concept of equality and fairness. Justice Kurian, in
his judgement in the Triple Talaq
case stated What is indubitably beautiful?
What is indubitably ugly? Who will decide? – certainly not man
. This research
paper would respectfully disagree with this preposition as our Constitution has
been adopted for the same reason to adjudicate such matters.
All answers lie
solely in the right interpretation of our Constitution. The current endeavor to
pass off personal laws outside the purview of the courts' interference and
hence, treat them as private laws is an attempt to fuel an unconvincing cause.
By the current position of religious practices, a citizen of this country would
have to convert from one religion to another in order to avail of his/her
This would be illogical and would defeat the whole essence
of our Constitution. A citizen's religion, cannot under any circumstance, be
given the authority to encroach into another citizen's Fundamental rights. The
current position would enable a lot of violations to go unchecked in the name of
religion. A religion cannot be practiced at the cost of any citizen's
Hence, it is necessary to fill this gap between the realm of is
which is to say what the Constituent Assembly debates actually meant as compared
to what the judiciary is actually interpreting it as. The solution could be by
adding a clause under Article 25 and 26 stating:
If any religious practice followed by any religious denomination is in violation
of any other fundamental rights as prescribed in Part 3 of the Constitution, it
will be held void to that extent.
This sub-section will leave the doctrine of Essentiality
redundant. This means that each religious practice will have to go through a
test so as to ascertain if it violates any fundamental rights notwithstanding
what is written in their holy script or whether the alleged religious practice
constitutes to be an essential or integral part of that religion. The attempt is
not to demean any religion but only to ensure that each citizen of this country
can rightfully avail and enjoy the fundamental rights as enshrined in our
Award Winning Article Is Written By:
- AIR 1952 BOM 84.
- 1997 3 SCC 573, 1994 4 ALT 1138, etc.
- 1971 KLT 684.
- AIR 1981 SC 789.
- 1954 AIR 282.
- (2020) 2 SCC 1.
- (2017) 9 SCC 1.
- (2002) 7 SCC 518.
- Mr. Tajamul Hussain, 7.68.32, CAD on Art 26 (7th December, 1948).
- Dr. B.R. Ambedkar, 7.68.9, CAD on Art 26 (7th December,1948).
- Guptanath Singh, 7.68.55, CAD on Art 26 (7th December,1948).
- 98 U.S. 145 (1878).
- Aman Malik
- Dhruva Shetty
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