Guest Post – I: Secularism and the Freedom of Religion Reconsidered – Old Wine in New Bottles?

(In this three-part series, Suhrith Parthasarthy, a Chennai-based lawyer and journalist, re-examines the issue of secularism and the freedom of religion in India, in light of an important, ongoing litigation at the Supreme Court).

The right of individuals and groups to practice their own religious belief has long been recognized as an integral value of liberal democracies. Intervention by the State in matters of religion is therefore often seen as anathema. Laws which impinge the observance of any religious belief or practice, or which discriminate between religions, are generally viewed as violating this right to a freedom of conscience. Like most other liberties, however, this right too is subject to certain restrictions, the “community exception,” as Tom Bingham, the late British judge and jurist described it.

In India, the right to religious freedom and its boundaries (which also peculiarly includes a few specific mandates to the state) is contained in Articles 25 and 26 of the Constitution. The former guarantees the people a freedom of conscience and the right freely to profess, practise, and propagate religion, subject to public order, morality, and health, and to the guarantee of other fundamental rights. It also protects laws made by the state to regulate any economic, financial, political, or other secular activity associated with religious practice, and laws that provide for social welfare and reform, including the throwing open of Hindu religious institutions of public character to all classes and sections of Hindus. Article 26 provides (once again subject to public order, morality, and health) a right to every religious denomination to establish and maintain institutions for religious and charitable purposes; to manage its own affairs in matters of religion; to own and acquire movable and immovable property; and to administer such property in accordance with law.

Read plainly, it appears that these provisions collectively seek to protect a person’s or a group’s fundamental right to practise religion substantially free of interference from the state. But, in practice, the community exceptions have often transcended the right. They have ended up allowing the state to limit protection only to those matters, which, in its opinion, are essential to the religion concerned. And the Supreme Court has often sat as an arbiter to decide which practices and beliefs constitute these “essential parts of religion.” The court has also used this test to determine the validity of legislation aimed at administering religious institutions, particularly Hindu temples. As a result, the purpose of judicial enquiry by the Supreme Court often appears to be aimed at rationalizing religion. It was in this light that Justice K. Ramaswamy observed in A.S. Narayana Deekshitulu v. State of Andhra Pradesh that the religious freedom guaranteed by Articles 25 and 26 “is intended to be a guide to a community-life and ordain every religion to act according to its cultural and social demands to establish an egalitarian social order.”

Recently, however, the Supreme Court has shown an inclination towards rethinking its jurisprudence. In January 2014, in the case of Subramanian Swamy v. The State of Tamil Nadu, the court quashed an order passed by the government of Tamil Nadu, which sought to bring within the state government’s control the management of the Sri Sabhanayagar Temple in the town of Chidambaram. Specifically, a bench of Justices BS Chauhan and SA Bobde found that the order appointing an Executive Officer to the Temple under Section 45 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, was in violation of the rights guaranteed under Article 26 of the Constitution of India to the Podu Dikshitars, a small sect of Smartha Brahmins.

The court arrived at its decision on the basis of a 1951 ruling of the Madras High Court, which, in its opinion, operated as a judgment in rem, i.e. that the judgment was binding on everyone, and had an effect beyond just the rights of the parties concerned. In Sri Lakshmindra Theertha Swamiar of Sri Shirur Mutt v. The Commissioner, Hindu Religious Endowments, Madras, the Madras High Court had found several provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951 unconstitutional insofar as the law was made applicable to the Matathipathi of the Shirur Mutt in the South Kanara District and to the Dikshitars of the Sabhanayagar Temple. Subsequently, the decision rendered in favour of the Shirur Mutt was substantially reversed by a five-judge bench of the Supreme Court in what is today known as “The Shirur Mutt case”. But the state government chose to accept the high court’s ruling insofar as it applied to the Dikshitars of the Sabhanayagar Temple, while appealing the verdict insofar as it applied to the Shirur Mutt. In other words, the government had conceded that the Dikshitars represented a separate “religious denomination” enjoying special rights. Therefore, according to Justices Chauhan and Bobde, to today re-examine the question of whether the Dikshitars were a religious denomination that enjoyed these special rights under Article 26 was barred as it had already been conclusively judged.

On these technical principles, to lawyers in particular, the Supreme Court’s decision in the Subramanian Swamy case might even appear unexceptional. But the bench also made a series of telling remarks that possibly went beyond the gamut of the proceedings. It held, for instance, that any takeover by the state of a temple’s management ought to be limited in duration. “Even if the management of a temple is taken over to remedy [an] evil,” wrote Chauhan, J., “the management must be handed over to the person concerned immediately after the evil stands remedied. Continuation thereafter would tantamount to usurpation of their proprietary rights or violation of the fundamental rights guaranteed by the Constitution in favour of the persons deprived.” This view of the Supreme Court, which effectively calls for stronger limits on state intervention in matters of religious administration, goes against the general grain of the court’s previously established jurisprudence. More crucially, it also gives us a hint of how the Supreme Court might rule on a string of litigation concerning Tamil Nadu’s temples pending for final hearing on the court’s docket. One such case involves the appointment of archakas—or priests—in the state’s temples.

(The facts and background of the case will be examined in the next post)

Advertisements

1 Comment

Filed under Freedom of Religion

One response to “Guest Post – I: Secularism and the Freedom of Religion Reconsidered – Old Wine in New Bottles?

  1. Pingback: I·CONnect – What’s New in Comparative Public Law

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s