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

(This is the third and final essay in a series on secularism and the freedom of religion under the Indian Constitution, by Suhrith Parthasarthy, a Madras-based lawyer and journalist. In the previous essay, the Tamil Nadu ordinance presently under challenge, which provides that “suitably trained and qualified Hindus, without discrimination of caste, creed, custom or usage” can be appointed as priests in state-administered temples, was discussed. In this concluding essay, that ordinance is placed in the context of the historical tension between the freedom of religion and State interference under the Indian Constitution)

Throughout its history, the Supreme Court of India has generally viewed governmental intervention in matters of religion as a vital component in the state’s movement to initiate social welfare and reform. The court has, over the years, carved a particular jurisprudence that allows it to determine what constitutes an “essential religious practice;” and, in so doing, the court has provided itself a legal basis to condone pervasive state intervention in matters of both religious belief and religious practice. Indeed, as Marc Galanter once observed, even in a secular state, “civil authorities, including the courts, find themselves faced with the necessity of ascertaining what is religious.” And, in India, this necessity is particularly stark given that the state’s powers to bring forth social reforms in Hindu religious institutions is constitutionally accorded.

But, equally, as the senior advocates Rajeev Dhawan and Fali S. Nariman wrote, “The nationalization of religious endowments, temples and places of learning sits uneasily with both the guarantee of religious freedom and secularism.” In fact, Donald E. Smith, one of the earliest commentators on the Indian Constitution’s guarantee of religious freedom dramatically argued that the movement to bring forth social change in religious institutions, such as the eradication of untouchability, “is not consistent with the concept of a secular state…In a secular state the nature of the relations between the Church and its believers is to be settled between themselves.”

Nonetheless, given that discrimination in religious institutions is often so deep-rooted as to deny individuals’ their most basic civil liberties, and given that the Constitution enjoins the state to promote social welfare in these institutions, India’s secularism, if indeed we must call it that, is certainly quite distinct from the various western models of the concept (it could be described, for instance, as Rajeev Bhargava does, as a form of contextual secularism). This means the court is often tasked with the onerous job of striking a delicate balance between practices or beliefs, which individuals or groups might view as being freely exercisable, and the power of the state to intervene in the management and administration of religious institutions.

Yet, every time the Supreme Court has embarked on this mission to determine what constitutes “an essential religious function,” it appears to be making a moral judgment. As Dhawan and Nariman wrote, “With a power greater than that of a high priest, maulvi or dharmashastri, judges have virtually assumed the theological authority to determine which tenets of a faith are ‘essential’ to any faith and emphatically underscored their constitutional power to strike down those essential tenets of a faith that conflict with the dispensation of the Constitution. Few religious pontiffs possess this kind of power and authority.” Apart from arrogating unto itself this power to determine what constitutes an essential religious practice, the Supreme Court has further muddled the interpretive process by bringing forth a facile distinction between “denominational” temples and public temples. While the former category, which, according to the court, includes a few closely-knit Hindu religious institutions, enjoys a greater element of liberty in managing its own affairs, the latter category has been seen as capable of being completely brought within the state’s officious powers. It might, for instance, indeed be true that the restriction applied in Hindu religious institutions, which sees qualifications for priesthood restricted on the basis of the Agamas, as a practice antithetical to decent morality. But, the question remains: must not the state leave religion alone? Even in public religious institutions, is it not for the community of followers to determine for themselves what constitutes an essential religious practice?

To resolve this question – i.e., the conflict between the right to religious freedom and the state’s duty in intervening to bring forth social welfare and reform in matters of religion – we must start with the constitutional text. Let us see what Articles 25 and 26 expressly provide.

Article 25 states “(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. (2) Nothing in this Article shall affect the operation of any existing law or prevent the State from making any law—(a) regulating or restricting any economic, financial, political or other secular activity, which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I – The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II – In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jain or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.”

Article 26 states: “Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—(a) to establish and maintain institutions for religious and charitable purposes, (b) to manage its own affairs in matters of religion (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law.”

As we saw earlier, when plainly read, these provisions tend to promote religious freedom free of interference from the state. Yet, harmonizing the two rights with the specific mandates imposed on the state therein has proved to be a source of substantial difficulty for the Supreme Court. In the earliest case where the court was called upon to make this reconciliation, it made a curious choice. In the Shirur Mutt case, the court simultaneously defined religion to include religious practices and beliefs (as opposed to the definition offered, for instance, by Chief Justice Chagla in Ratilal Panachand Gandhi vs State Of Bombay) but also endorsed substantial state intervention in religious institutions. Justice Mukherjea’s observations are worthy of being quoted in full. He wrote:

“In the first place, 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)… as we have already indicated, freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions which the Constitution itself has laid down. Under article 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.”

But here’s the paradox. In spite of holding thus, the Supreme Court nonetheless in Shirur Mutt upheld vast portions of the Madras Hindu Religious and Charitable Endowments Act, 1951, under which a commissioner could frame and settle a ‘scheme’ if he or she had reason to believe that a religious institution was mismanaging the resources placed under its care or was being run contrary to the purposes for which it was founded. The result therefore helped herald several new laws through which states sought to arrogate the power to control Hindu religious institutions. What’s more, with time, the doctrine of essential religious practice, as was originally framed in Shirur Mutt, also began to wither, and took on a whole new meaning.

In Sri Venkatramana Devaru v. State of Mysore, for instance, the court was asked to determine whether the Madras Temple Entry Authorization Act, which was enacted with a view to granting Harijans a right to enter all public temples, applied to a temple founded by a sect called the Gowda Saraswath Brahmins. The court held that the sect was indeed a separate religious denomination that enjoyed the right to manage its own affairs under Article 26, but it also found that this right was subject to laws protected by Article 25(2)(b). To hold otherwise, wrote Justice Venkatarama Aiyar for the court, would render Article 25(2)(b) wholly nugatory in its application to denominational temples, even though the language of the clause includes such institutions. The court was forced into trying to harmonize Articles 26 and 25(2)(b) because it had found that the practice of excluding certain persons from entering into a temple for worship was a matter of religion according to Hindu Ceremonial Law. Thus, in Devaru, Justice Aiyar found, quite contrary to the judgment in Shirur Mutt, that it was for the court to determine what practices were essential according to the tenets of a religion.

In the decades that followed Devaru, as Ronojoy Sen points out in his excellent book, “Articles of Faith: Religion, Secularism, and the Indian Supreme Court,” the essential practices doctrine entrenched itself as the test to determine different varieties of cases. It has been employed not only in deciding which practices deserve constitutional protection, but also in adjudicating the validity of legislation aimed at usurping the administrative and managerial authority of religious institutions. The consequences of the doctrine have been stark. It has allowed the Supreme Court to define for us what our religious beliefs and practices ought to encompass. In fact, Justice K. Ramaswamy went so far as to differentiate, in AS Narayana Deekshitulu v. State of Andhra Pradesh, AIR 1996 SC 1765, between what he termed as secularisation and secularism.

Secularisation,” wrote Ramaswamy J., “essentially is a process of decline in religious activity, belief, ways of thinking and in restructuring the institution. Though secularism is a political ideology and strictly may not accept any religion as the basis of State action or as the criteria of dealing with citizens, the Constitution of India seeks to synthesise religion, religious practice or matters of religion and secularism. In secularising the matters of religion which are not essentially and integrally parts of religion, secularism, therefore, consciously denounces all forms of super-naturalism or superstitious beliefs or actions and acts which are not essentially or integrally matters of religion or religious belief or faith or religious practices. In other words, non-religious or anti-religious practices are anti-thesis to secularism which seeks to contribute in some degree to the process of secularisation of the matters of religion or religious practices.” Having held thus, Justice Ramaswamy delved into a deep discussion of various Hindu religious texts to determine for the followers of the faith what they ought to regard as essentially religious. The result has been the withering of the autonomy of both the individual and the group to enjoy a freedom of conscience. The questions that the court poses no longer relate simply to whether a specific measure is required in the interests of fulfilling the community exceptions of public order, morality, or health. Rather, they involve a purported analysis of inherently religious tenets, which the court is certainly not qualified to rule conclusively upon.

In his final book, “Religion without God,” Ronald Dworkin wrote that when governmental intervention “cannot be justified as protecting the rights of others, but only reflects disapproval of the religion that imposes the duty in question, government has violated the right to free exercise.” The Supreme Court of India has repeatedly committed such errors. In aiming to rationalize religion, the court routinely disapproves of different religious practices, holding such practices to be inessential to the practice of the religion. In the case of the archakas appointments, it could be plausibly argued that state intervention is required to correct a historic social evil. But we must nonetheless ask ourselves whether it is within the state’s domain to intervene in matters of ethical choice. The Supreme Court was possibly quite correct in ruling in the ERJ Swami case, which we discussed earlier, that a deviation from the Agamas would violate one’s freedom of conscience. But the manner in which it arrived at its decision—which involved an engagement with complicated religious tenets—remains dubious.

When the court sits over judgment of the Tamil Nadu ordinance of 2006, therefore, it must look to set right several doctrinal errors of the past. It must test the law purely on whether it is required in the interests of morality, public order, or health, and, if not, whether the law is required to promote social welfare and reform. While it is one thing to argue that the prevention of entry into temples of some communities helps propagate a deeply corrosive form of discrimination, it is another to argue that the state must also regulate how temples select their priests. It isn’t for the courts to reformulate religion in the manner that it feels most rational.

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