This article has been authored by Akshat Bhushan and Avishek Mehrotra.
On May 15, 2020, the Allahabad High Court decided upon a writ petition (‘Azan judgment’) seeking upliftment of the ban on Azan through sound-amplifying devices in the Ghazipur district of UP. The Court opined that while the recitation of Azan is an integral part of Islam, doing the same through sound-amplifying devices is not. In reaching this conclusion, the Court relied upon several judgments depicting the detrimental impact of loudspeakers on human health and rights guaranteed under Article 19(1)(a) of the Constitution. Though the Court relied upon judgments depicting the violation of Fundamental Rights through the use of loudspeakers, the ban was upheld on the grounds of it not being an essential religious practice. The question which arises here is that: if the use of speakers for the recitation of Azan were a necessary part of Islam, would the Fundamental Right of individuals be subdued to such practice? The application of essential religious practice doctrine has seen various inconsistencies in its application and posed a hindrance to social reforms. The authors highlight several decisions showing inconsistencies in the application of the essential religious practice doctrine. This is reflective of the lack of expertise of Judges in matters of theology. It would, therefore, be desirable to completely do away with this doctrine, and resolve the issue by merely subjecting religious autonomy to other Fundamental Rights.
Religious freedom in India is guaranteed by Article 25 and Article 26 of the Constitution. The freedoms under Article 25 are, however, subject to public order, morality, health, and other Fundamental Rights provided under Part III of the Constitution. The very first instance where the Court was called upon to interpret the extent of religious freedom under Article 25 and 26 was in the Shirur Matt case, the Court expounded the term ‘religion’ under Article 25 of the Constitution to include rituals and practices integral to the religion. The Court took upon itself the onus of determining what constitutes as ‘essentially religious’ by referring to the doctrines of the religion itself. It must be noted that the Court in this judgment used the term ‘essential’ as a boundary between religious and secular practice. However, the Allahabad High Court in 1957, while holding that polygamy is not an essential part of the Hindu religion, misinterpreted the sense in which the term ‘essential’ was used by the Court in Shirur Matt. It limited the protection of religious freedom only to practices that were ‘essential to the religion’. Thus, despite relying upon the jurisprudence set by the Apex Court in Shirur Matt, the Allahabad High Court revamped its essence through a wrongful interpretation. Despondently, this interpretation created the pathway for subsequent judgments, as can even be seen in the Azan judgment delivered in 2020.
The authors have reservations about the Court getting into the question of ascertaining a practice as secular or religious, but that is at least in line with the constitutional check imposed upon religious freedom. However, the use of essential religious practice test to determine the importance of a practice vis-à-vis religion is an outcome of the judicial overreach perpetuated in contrast to the initial jurisprudence set by the Courts.
Whimsical Application Of The Doctrine
Galantar argues that the Courts have adopted this doctrine to give more legitimacy to their decisions. It will ensure greater abidance of the Court’s decisions if the community is told that the religious practice in question is not essential or integral to their religion itself, and that is why the said practice should be regulated. However, this is not always true; the Apex Court used this doctrine even in the Sabarimala case, but this led to great protests, and the community by and large refused to abide by the Court’s order. Moreover, the application of this doctrine has been fraught with inconsistencies and has led to many absurd decisions.
Soon after the evolved jurisprudence, the question of cow slaughter being an essential practice during Bakr-id was posed before the Apex Court in Hanif Quareshi v. State of Bihar. The petitioner therein contended that the practice of cow slaughter was essential to Islam by providing evidence that this practice was performed since time immemorial, the Court looked into the religious doctrines and held that the said practice was not essential to Islam. Notably, when after four decades, the claim of Tandava dance being an essential religious practice in the Ananda Margi sect was decided, the Court decided in negative even though there were religious texts that provided proof to the contrary. The rationale behind this decision was that the said faith was established in 1955, whereas the practice began in the year 1966. Thus, in the latter decision, the Court considered the time for which the practice was prevalent of much significance in deciding its essentiality which in the former was completely negated. This unclarity in the judicial approach to the question of essentiality is very well reflected in the split verdict of 3:2 in the Shayara Bano case. While the minority opinion, relied on the antiquity of the practice of the talaq-e-biddat to hold that the said practice was essential to Islam. Per contra, the majority decision placed reliance on the Quran and Hadith to declare talaq-e-biddat as unislamic.
The essential practices test has also, at times, acted as a road-block to social reforms. In Sardar Syedana’s case, the Court by a 4:1 decision struck down the law that banned excommunication in the Dawoodi Bohra community. Ayyangar J., who concurred with the majority, observed that the State could carry out social reforms only in matters which are not essential to the religion. This is in stark contravention to the spirit and essence of Article 25(2)(b) that empowers the State to make laws for social reforms. The only shining light, in this case, was the minority opinion of Sinha CJ., who widened the ambit of Article 17 beyond Hindus and upheld the law banning excommunication.
In light of the aforementioned judgments, one can definitely say that the Courts have relied on contradictory factors to determine the essentiality of religious practice. This is because matters of religion are intricate and complex. It is very difficult for Judges, who lack competence in matters of theology, to deal with such complex issues of religion on which theologians themselves have not been able to reach a consensus. Moreover, the doctrine has also led to regressive decisions impeding social reforms adding to the pressing need to discard this doctrine.
Looking Beyond The Ecclesiastical Jurisprudence
Besides the inconsistencies in its application, there have even been instances where the existing question required no use of the essentiality test. While determining the issue of acquisition of land on which the Babri Masjid stood, the Court went on to examine if praying in mosques was an essential practice under Islam. The Court could have resolved the issue by acknowledging the State’s power under the Land Acquisition Act, 1894, to acquire land for ‘public purposes’. Going back to the Azan judgment referred to at the beginning of the article, the Court by referring to pronouncements in Om Birangana and P.A. Jacob, had ample material at its disposal to ban the use of loudspeakers owing to its interference with human health and rights guaranteed under Article 19(1)(a) respectively. However, the Court quite unnecessarily went into the question of essentiality to reach the same conclusion. Thus, it is evident that the Court, by taking considerable powers in religious matters, instead of playing a Constitutional guardian, has adopted a clergy’s role.
This problem has been effectively highlighted by Chandrachud J. in Sabarimala, while stating, “The assumption by the Court of the authority to determine whether a practice is or is not essential to religion has led to our jurisprudence bypassing what should in fact be the central issue for debate … the basic question which needs to be answered is whether the recognition of rights inhering in religious denominations can impact upon the fundamental values of dignity, liberty and equality which animate the soul of the Constitution.”
This is an extremely resounding observation and marks an important benchmark in our Constitutional jurisprudence. This essentially leads the authors to say that the entire debate surrounding the binary between religious or secular is largely avoidable. Irrespective of whether an activity is religious or secular, it is subject to the Constitution. Instead of delving into the question of whether an activity is secular or not, the Court must only scrutinize it against the Constitutional limitations under Article 25(1) and 25(2)(b). The rationale behind this suggestion is that even if the practice is religious or essential to the religion, it will not stand if it violates the Constitutional safeguards. Another restraint to religious freedom can be by way of statutory constraints. However, for any statutory limitation upon the religious freedom to be viable, it must conform to the proportionality test, failing which, the Statute would be void as far as it infringes the religious freedom. It is neither the function nor the expertise of the Court to inspect the religious doctrines and play a theological role. It is, therefore, pointless to go into such demarcation if ultimately the question boils down to its Constitutional validity, which is the primary function of the Courts.
(Akshat Bhushan is a 1st year student pursuing BA. LLB.(Hons) from Hidayatullah National Law University, Raipur. Avishek Mehrotra is a 3rd year student pursuing BA. LLB.(Hons) from Symbiosis Law School, Pune.)