Essential Religious Practices: Court in Review
The Doctrine of "Essential Religious Practices" has evolved through the various judgments rendered by the Supreme Court.
Over the decades, the Supreme Court has developed the ‘Essential Religious Practices’ test to identify those religious practices which it deems as essential to the religion and candidates for constitutional protection.
The test of Essential Religious Practices was first laid forth by the Supreme Court in 1954 in the Shirur Mutt case. A 7 Judge Bench of the Supreme Court held that what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of Article 26(b). What Article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality but regulation of activities which are economic, commercial or political in their character though they are associated with religious practices.
In this case, Section 148-B of the Sikh Gurudwaras Act, 1925 was challenged before the Court. The impugned section/provision, provided for the setting up of a Gurudwara Board and introduced new members. The petitioners’ contention was that Sec. 148-B infringes Article 26(b) of the Constitution, which grants every religious denomination the right to manage its own affairs in matters of Religion, for it does not allow for direct elections of members of the Board by the Sikh Community. The argument advanced by the State of Punjab was that matters of religion in the sense of essential beliefs and practices of the Sikh faith are left untouched by Section 148-B, and even other relevant sections of the principal Act do not interfere with Sikh religion. Applying the test of essential religious practices, a % Judge Bench of the Supreme Court upheld the constitutionality of Section 148-B. It was observed that no authoritative text had been placed before the Court to show that direct election by the entire Sikh Community to the Gurudwara Committes in charge of the management was essential to the religion itself. Section 148-B provided a method of representation for the extended areas during the interim period and such arrangement was dictated merely by considerations of convenience and expediency, and does did involve any principle of religion.
The challenge to the vires of the Dargah Khwaja Saheb Act, 1955 provided the Court with another opportunity to apply the test of essential religious practices. The Act, it was argued, took away the fundamental rights of Muslims belonging to the Soofi Chistia Order, for it was to they alone who were the sole custodians and care takers of the shrine at Ajmer. The impugned Act, however, permitted all Hanafi Muslims, even those not belonging to the Soofi Chistia Order to partake in the maintenance and affairs of the Dargah.
The Court rejected the challenge to the Dargah Act observing that the pilgrims travelling to the tomb included persons from all walks and religions who visited the tomb out of devotion for the memory of the departed saint and had at no point in time been confined to members of the Soofi Chistia Order. It was therefore, this large cosmopolitan circle of pilgrims which should in law be held to be the circle of beneficiaries of the endowment made to the tomb.The Court further held that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 26. Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. The protection must be confined to such religious practices as are an essential and an integral part of it and no other.
The Essential Religious practices test was applied in the present case to determine whether the Bombay Prevention of Ex-communication Act, 1949 violated the fundamental rights under Articles 25 and 26 of the Dawoodi Bohra Community. The Head Priest of this community was vested with certain powers, one of which included the power of excommunication, which was to be exercised in accordance with the tenets of the community. Such power, it was argued, was integral to the religious faith and beliefs of the Dawwodi Bohra Community which was a religious denomination under Article 26 of the Constitution.
With a 4:1 majority, the 5 Judge Bench of the Supreme Court upheld the right and power of excommunication bestowed upon the Head Priest od the Dawwodi Bohra Community. It was further observed that what constitutes an essential practice is to be gather from the texts and tenets of the religion. Having regard to the social aspects of excommunication, the legislature however was not permitted to reform a religion out of existence or identity.
In a challenge to the Nathdwara Temple Act, 1959 enacted by the State of Rajasthan by the Tilkayat, the question before the Court was whether the tenets of the Vallabh denomination and its religious practices restricted worship to private temples managed by the Tilkayat alone? If so, would an Act enacted for the management of the Temple would be ultra vires the Constitution in view of Article 25.
It was held that a practice is considered essential to a religion if it is essential to the community following the religion. Furthermore, Article 25(1) and 26(b) offer protection to religious practices and such affairs, which are purely secular in nature, may be regulated by Statute without infringing the aforesaid articles. In order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 26.
Questioning the validity of the Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act, 1970, the petitioners in the given case claimed a violation of their freedom of religion protected under Articles 25 and 26 of the Constitution. Relying on its earlier decisions and the test of essential religious practices evolved thereunder, the Court found the impugned legislation to be constitutionally valid. It was held that the purpose of the Act was to regulate secular functions like management and administration, which included appointment of the Archaka. It did not however aim to regulate or change the rituals and ceremonies followed in the temples. The Court however clarified that while the appointment of Archakas was a secular function, the sect or denomination from which they were to be appointed was to be in accordance with the Agamas as that was essential to and firmly embedded in the religion.
Upholding the validity of the U.P. Sri Kashi Vishwanath Temple Act, 1983, the court drew a distinction between the religious and secular functions of the Temple. The impugned Act, it was held, only pertained to the latter, i.e. the secular functions of administration and management of the Temple. These were not essential or intrinsic elements to the practice of the religion and the Legislature was thus competent to enact a law that did not entrust the Government with the power to interfere with the day-to-day religious practices.
The Court applied the test of essential religious practices in deciding whether the Tandava Dance was an essential rite of the Ananda Marga Faith as held by the High Court. The Ananda Marga Faith though founded in 1955, the Tandava dance was introduced to its followers in 1966 and was prescribed as in essential religious practice in the Carya Carya in 1986.
The Court in its majority opinion held that the Tandava Dance was not an essential practice of the Ananda Marga faith. It was further observed that essentail part of a religion means the core beliefs on which the religion is founded and those practices which are fundamental to the followers of the religion. In order to determine whether or not a particular practice is an essential part of religion, the test must be whether the absence of the practice itself fundamentally alters the religion. The protection guaranteed under Articles 25 and 26 of the Constitution is not confined to matters of doctrine or belief but extends to acts done in pursuance of religion and, therefore, contains a guarantee for rituals, observances, ceremonies and modes of worship which are essential or integral part of religion.
An amendment to the Tamil Nadu Hindu Religious and Charitable Endowments in 1970 abolished the practice of appointing religious office holders on a hereditary basis and the constitutionality of this Amendment was upheld by the Court in 1972 in the Seshammal Case. However, in 2006, a government order was issued directing that Archakas of the temples were to be appointed without any discrimination stemming from customs on the basis of caste or creed. This Government order was then challenged on account violation the religious freedom under Article 25 by interfering in essential matters of the denomination of Archakas. Relying on the decision in Seshammal, the Court reiterated that though appointment was a secular function, the denomination of the Archakas must be in accordance with the Agamas. The Agamas restricted the appointment of Archakas to particular religious denominations. Archakas are required to be appointed as per the Agamas and this embodies a long-standing belief that has come to be firmly embedded in the practices immediately surrounding the worship of the image and therefore such beliefs/practice constitute an essential part of the religious practice. The right to equality of opportunity under article 16(5) is not violated if a religious office-bearer is required to belong to a particular religion or denomination as per the essential tenets of such religion. However, the Court did go on to hold that religious treatise like the Agamas must conform to the constitutional mandate and not practice exclusion on the basis of constitutionally prohibited criterion like Caste.
The Triple Talaq verdict of the 5 Judge Bench is most recent decision of the Supreme Court which makes reference to the test of essential religious practice. Rejecting the argument that the practice of Talaq-e-Biddat or Triple Talaq was essential practice under Islam, the Court, in its majority opinion held that the same was not an essential practice and could not be offered constitutional protection under Article 25 of the Constitution. It is against the basic tenets of the Quran and thus violative of the Shariat. A practice that is merely permitted or not prohibited by a religion cannot be considered an essential or positive tenet sanctioned by that particular religion. Triple Talaq is only a form of talaq which is permissible in law, but at the same time, stated to be sinful by the very Hanafi School which tolerates it. Therefore, this would not form part of any essential religious practice as the fundamental nature of the Islamic religion, as seen through an Indian Sunni Muslim’s eyes, will not change without this practice.