Tag Archives: freedom of religion

The Supreme Court’s Muslim Beard Judgment: A Missed Opportunity

Yesterday, a three-judge bench of the Supreme Court upheld a Muslim airman’s discharge from the Indian Air Force for keeping a beard. At issue before the Court was Regulation 425 of the Armed Force Regulations, 1964, which prohibited the growth of hair by Armed Forces personnel, except for “personnel whose religion prohibits the cutting of hair or shaving of face.” (425(b)) Although the Court referred to various policy directives issued by the Air Force from time to time, the case ultimately turned on whether the Airman was covered by Regulation 425(b). The Court held that he was not, although its reasoning on the point was rather brief:

“During the course of the hearing, we had inquired of Shri Salman Khurshid, learned senior counsel appearing on behalf of the Appellants whether there is a specific mandate in Islam which “prohibits the cutting of hair or shaving of facial hair”. Learned senior counsel, in response to the query of the Court, indicated that on this aspect, there are varying interpretations, one of which is that it is desirable to maintain a beard. No material has been produced before this Court to indicate that the Appellant professes a religious belief that would bring him within the ambit of Regulation 425(b) which applies to “personnel whose religion prohibits the cutting off the hair or shaving off the face of its members”.

Since the Court did not go into the question, it remains unclear what manner of evidence would have actually been sufficient to convince it that the airman’s case fell within Regulation 425(b). From the question that the Court put to the airman’s counsel, it appears that it was looking for some kind doctrinal evidence demonstrating that Islam prohibits the cutting of facial hair, regardless of the appellant’s own views on the issue. This is in line with the Court’s “essential religious practices” test, which I have criticised earlier.

However, a distinction needs to be drawn between two kinds of religious claims. Most of the cases that have come before the Court have involved the status of practices that can be broadly understood as group or community practices (for instance, the Supreme Court’s 2004 judgment on whether the public performance of the tandava dance was an essential part of the Ananda Margi sect’s beliefs). Although the essential religious practices test remains deeply problematic, in such cases, it is understandable that the Court might want to look for authoritative sources to ascertain the status of the practice within the religion/sect. However, the present case did not involve determining the status of a community practice – it involved, centrally, an individual’s judgment of what was required by his faith. In such a case, the essential religious practices test seems even less defensible, because effectively, it prohibits any individual departure from the officially sanctioned tenets of the religion. And in such cases, the test that is followed in other jurisdictions, throughout the world – the test that asks merely whether the individual in question had a sincere and genuinely held belief in the validity of the religious claim – seems far more appropriate.

Although the distinction between community-oriented and individual-oriented religious claims has not yet been drawn by the Supreme Court, in my view, a three-judge bench was ideally placed to do it, and to limit the scope of the essential religious practices test. The case, therefore, represents a missed opportunity by the Court to develop its religious freedom jurisprudence in a more progressive direction.

It is also unclear to me why, after having held that Regulation 425(b) was not applicable to the airman’s case, the Court found it necessary to make the following observations:

“The Air Force is a combat force, raised and maintained to secure the nation against hostile forces. The primary aim of maintaining an Air Force is to defend the nation from air operations of nations hostile to India and to advance air operations, should the security needs of the country so require. The Indian Air Force has over eleven thousand officers and one lakh and twenty thousand personnel below officers rank. For the effective and thorough functioning of a large combat force, the members of the Force must bond together by a sense of Espirit-de-corps, without distinctions of caste, creed, colour or religion. There can be no gainsaying the fact that maintaining the unity of the Force is an important facet of instilling a sense of commitment, and dedication amongst the members of the Force. Every member of the Air Force while on duty is required to wear the uniform and not display any sign or object which distinguishes one from another. Uniformity of personal appearance is quintessential to a cohesive, disciplined and coordinated functioning of an Armed Force.”

This was unnecessary, because the argument from uniformity/cohesiveness would arise only if the Court had first found that the airman had a right to keep a beard, and was then assessing whether the Air Force was justified in curtailing the right. As the Court correctly pointed out, Article 33 of the Constitution expressly permits Parliament to modify the application of fundamental rights to members of the Armed Forces – which it did, for instance, through Regulation 425. Consequently, the Court’s enquiry should have begun and ended with Regulation 425 (where, I have tried to show, it ought to have applied a different test).

Additionally, the questioning of balancing rights, in such cases, is a complex one, and requires a more detailed analysis than what the Court undertook. In some jurisdictions, for instance, a distinction is drawn between ostentatious or very visible religious markers of identity, and more innocuous ones; some jurisdictions require employers to demonstrate that their restrictions serve a “bona fide occupational requirement“, and furthermore, are reasonably tailored towards achieving it. Admittedly, after its finding on Regulation 425(b), the Court did not need to address this question; however, it nevertheless chose to do so, in doing so, its observations about unity and cohesiveness unduly simplify a very complex issue.

Furthermore, during the course of its observations, the Court ended up making a statement that is incorrect as a matter of law, but could have unfortunate consequences going forward. Towards the end of its judgment, the Court remarked that:

“Regulations and policies in regard to personal appearance are not intended to discriminate against religious beliefs nor do they have the effect of doing so. Their object and purpose is to ensure uniformity, cohesiveness, discipline and order which are indispensable to the Air Force, as indeed to every armed force of the Union.”

While it is nobody’s case that the regulations intended to discriminate against religious beliefs, it is incorrect to also state that they do not have that effect. The only basis for that claim would be the assumption that religious dicta and personal appearance are entirely separate from each other; a quick look at the core tenets of Sikhism demonstrates that that assumption is false. Indeed, the Court’s reference to “object and purpose” in the next line was itself a statement about legislative intent; but by running together intent and effect, in my view, the Court conflated direct and indirect discrimination in a manner that could stifle the future development of indirect discrimination jurisprudence in India (a concept still in its infancy).

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Dawoodi Bohra Case Delayed :: Will Kymlicka and Cultural Autonomy

The Dawoodi Bohra case, which we discussed in the last essay, has been taken off the supplementary list for tomorrow. Hopefully, it will not take eleven years for it to be listed a second time!

In the meantime, I came across this quotation by the liberal political theorist, Will Kymlicka, in his article, ‘The Rights of Minority Cultures: Reply to Kukathas’, which sums up the argument of the previous essay quite well:

A liberal theory can accept special rights for minority culture as against the larger community so as to ensure equality of circumstance among them. But it will not justify (except under extreme circumstances) special rights for a culture against its own members. The former protect the autonomy of the members of the minority of the cultures; the latter restrict it. Liberals are committed to supporting the rights of individuals to decide for themselves which aspects of their cultural heritage are worth passing on. Liberalism is committed to – perhaps even defined by – the view that individuals should have the freedom and the capacity to question and possibly revise the traditional practices of their community should they come to see them as no longer worthy of their allegiance[For example] restricting religious freedom or denying education to girls is is inconsistent with these liberal principles and indeed violates one of the reasons liberals have for wanting to protect cultural membership – namely, that that membership in a culture is what enables informed choices about how to lead one’s life. Hence, a liberal conception of minority rights will condemn certain practices of minority cultures just as it has traditionally condemned the traditional practices of majority cultures, and will support their reform.” 

The basic idea, again, is that the while the basic, normative unit of Part III is the individual, the protection of group rights under Articles 26, 29 and 30 of the Constitution acknowledges the fact that individuals are embedded in culture, and culture is what mediates effective exercise of human freedom. However, just as that basic idea requires the Constitution to guarantee group rights, it simultaneously limits the extent to which those rights can be invoked. In Kymlicka’s phrase, a culture cannot invoke special rights against its own members, insofar as such rights become a tool for curtailing, rather than enhancing, individual freedom. The philosophical mistake that the majority made in the Dawoodi Bohra Case was to treat group rights under Article 26(b) as ends in themselves (and hence, the repeated fears about the need to maintain group purity and discipline through the power of miscommunication), and not as instruments towards achieving individual freedom. In fact, a reading of the sort that Kymlicka advances (and which would require the Court to have upheld the Bombay Act), is more consistent with both the liberal strand of Part III (as embodied in classic civil rights against the State – Articles 14, 19, 21, 25), as well as its social-democratic strand, which is concerned with protecting individuals from the tyranny of their own communities (Articles 15(2), 17, 23, 25(2)).

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Guest Post: Religious Freedom and Archaka Appointments in the Supreme Court’s Recent Decision

(In this guest post, Suhrith Parthasarathy, a Madras-based lawyer, discusses the recent Supreme Court decision on Archakas and Agamas)

Previously, in a three-part essay published on this blog, I had previewed a case concerning the appointment of archakas (priests) to Tamil Nadu’s temples which brought to light seemingly significant conflicts between the rights of certain denominations to a freedom of religion and conscience and the state’s duty in bringing forth reform and welfare to society. Last week, a two-judge bench of the Supreme Court of India, in Adi Saiva Sivachariyargal Nala Sangam & Others v. The Government of Tamil Nadu & Another, delivered a final verdict in this case. Unfortunately, the judgment, authored by Justice Ranjan Gogoi, not only lacks clarity, but also fails to address the key constitutional questions at the root of the dispute.

 Conventionally, as a matter of custom, archakas were consecrated by virtue of rights flowing through what are known as the Agamas, which are a collection of scriptures governing the conduct of a Hindu temple’s religious affairs. The Agamas include within their numerous diktats specific criteria for eligibility to the post of an archaka. One such criterion was explicated by the Supreme Court, as an example, in Seshammal v. State of Tamil Nadu [ERJ Swami v. The State of Tamil Nadu], AIR 1972 SC 1586. The statement is worth quoting in full:

 

“Shri R. Parthasarthy Bhattacharya, whose authority on Agama literature is unquestioned, has filed his affidavit in Writ Petition No. 442 of 1971 and stated in his affidavit, with special reference to the Vaikhanasa Sutra to which he belongs, that according to the texts of the Vaikhansa Shastra (Agama), persons who are the followers of the four Rishi traditions of Bhrigu, Atri, Marichi and Kasyapa and born of Vaikhanasa parents are alone competent to do puja in Vaikhanasa temples of Vaishnavites. They only can touch the idols and perform the ceremonies and rituals. None others, however, high placed in society as pontiffs or Acharyas or even other Brahmins could touch the idol, do puja or even enter the Garbha Griha. Not even a person belonging to another Agama is competent to do puja in Vaikhanasa temples. That is the general rule with regard to all these sectarian denominational temples. It is, therefore, manifest that the Archaka of such a temple besides being proficient in the rituals appropriate to the worship of the particular deity, must also belong, according to the Agamas, to a particular denomination.”

 

From time immemorial, the Agamas have represented a personal law relating, among other things, to the appointment of archakas to Hindu temples. However, through its constant usage and application a convention appeared to have developed by which appointments of archakas were made only on the basis of hereditary succession, usually from within a small denomination of Brahmins. This practice of making hereditary appointments, while not a part of the personal law as contained in the Agamas, came to form a custom, of sorts, and was accorded further legitimacy by Section 55 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, a legislation that was enacted to specifically enable a complete takeover of Hindu temples by the State. The section reads: “(1) Vacancies, whether permanent or temporary, among the office-holders or servants of a religious institution shall be filled up by the trustee in cases where the office or service is not hereditary.” And “(2) In cases where the office or service is hereditary, the person next in the line of succession shall be entitled to succeed.”

In 1970, the Tamil Nadu government amended Section 55. It now read as follows: “(1) Vacancies, whether permanent or temporary among the office holders or servants of a religious institution shall be filled up by the trustee in all cases. Explanation: The expression ‘Office-holders or servants shall include archakas and poojaris.’” And “(2) No person shall be entitled to appointment to any vacancy referred to in sub-section (1) merely on the ground that he is next in the line of succession to the last holder of office.” 

Soon after the provision was modified, a group of hereditarily appointed Archakas challenged the amendment, in Seshammal, arguing that their rights under Articles 25 and 26 stood infracted. A five-judge constitutional bench, speaking through Justice D.G. Palekar’s opinion, dismissed these petitions, but nonetheless provided an additional imprimatur to the supposed sacrosanctity of the Agamas. The power to make appointments of archakas, the court held, was a secular function—the archaka, the judgment said, was “a servant of the temple…As a servant he is subject to the discipline and control of the trustee as recognised by the unamended Section 56 of the Principal Act [Tamil Nadu Hindu Religious and Charitable Endowments Act] which provides all office-holders and servants attached to a religious institution or in receipt of any emolument or perquisite there from shall, whether the office or service is hereditary or not be controlled by the trustee, and the trustee may, after following the prescribed procedure, if any, fine, suspend, remove or dismiss any of them for breach of trust, incapacity, disobedience of orders neglect of duty, misconduct or other sufficient cause. That being the position of an Archaka, the act of his appointment by the trustee is essentially secular. He owes his appointment to a secular authority.” Nonetheless, while the state is exercising a secular power in making appointments, the court found that the the criteria prescribed under the Agamas was essential to the practice of the religion, and was therefore inviolable. “In a Saivite or a Vaishnavite temple the appointment of the Archaka will have to be made from a specified denomination, sect or group in accordance with the directions of the Agamas governing those temples,” wrote Justice Palekar. “Failure to do so would not only be contrary to Section 28(1) [of the Tamil Nadu Hindu Religious and Charitable Endowments Act] but would also interfere with a religious practice the inevitable result of which would be to defile the image.” However, according to the court, while making appointments from a specified denomination, sect or group in accordance with the Agamas, the state was not bound to follow a principle of hereditary succession, and therefore the amendment was found valid.

In so holding, the Supreme Court effectively foiled the Tamil Nadu government’s intention to appoint archakas from denominations beyond those purportedly prescribed under the Agamas. After decades of accepting the status quo, in 2006, the government sought to adopt a more direct approach—it introduced an executive order stating, “Any person who is a Hindu and possessing the requisite qualification and training can be appointed as a Archaka in Hindu temples.” The ostensible objective of this order was to allow the state to appoint archakas, by prescribing a new set of criteria, which would not necessarily be in consonance with the Agamas. The order was followed by an ordinance, which declared that “suitably trained and qualified Hindus, without discrimination of caste, creed, custom or usage” could be appointed as priests to temples administered by the government of Tamil Nadu. This ordinance however subsequently lapsed, leaving the executive order alone as the subject matter of challenge before the Supreme Court in Adi Saiva Sivachariyargal Nala Sangam.

The petitioners in Adi Saiva Sivachariyargal Nala Sangam argued that the Supreme Court was bound by the decision of the 5-judge bench in Seshammal. According to them, any deviation from the Agamas in appointing archakas, would infract their rights under Articles 25 and 26. While the power to appoint priests was a secular function, the qualifications prescribed under the Agamas, they argued, were essential to the practice of their religion, and were therefore inviolable. Countering, the State sought to rely on another decision of the Supreme Court, N. Adithayan v. The Travancore Devaswom Board, AIR 2002 SC 3538. Here, a two-judge bench had upheld the appointment of a person from outside the Malayala Brahmin community as priest of a Siva temple in Kerala. The State further contended that the Petitioners’ rights under Article 25 were not violated by the executive order, as it was a measure intended at bringing forth social reform and welfare—a feature, which the Constitution specifically protects.

The Supreme Court however, took a curious approach to determining the issue. The bench found (correctly) that the decision in N. Adithayan was inapplicable to the present contest, as it was a judgment rendered on very specific facts, where a petitioner had been unable to prove that an appointment of a priest from a community outside of his own was in violation of any established religious practice, protected under Article 25. The court similarly found (more questionably though) that its decision in Seshammal was also of only limited relevance to the present dispute. “Seshammal is not an authority for any proposition as to what an Agama or a set of Agamas governing a particular or group of temples lay down with regard to the question that confronts the court, namely, whether any particular denomination of worshippers or believers have an exclusive right to be appointed as Archakas to perform the poojas,” Justice Gogoi wrote. “Much less, has the judgment taken note of the particular class or caste to which the Archakas of a temple must belong as prescribed by the Agamas. All that it does and says is that some of the Agamas do incorporate a fundamental religious belief of the necessity of performance of the Poojas by Archakas belonging to a particular and distinct sect/group/denomination, failing which, there will be defilement of deity requiring purification ceremonies.”

Having found that neither of these judgments was particularly helpful to it in resolving the dispute, the court arrived at an unusual conclusion. Wrote Justice Gogoi:

 “…It will be necessary to re-emphasise what has been already stated with regard to the purport and effect of Article 16(5) of the Constitution,* namely, that the exclusion of some and inclusion of a particular segment or denomination for appointment as Archakas would not violate Article 14 so long such inclusion/exclusion is not based on the criteria of caste, birth or any other constitutionally unacceptable parameter. So long as the prescription(s) under a particular Agama or Agamas is not contrary to any constitutional mandate as discussed above, the impugned G.O. dated 23.05.2006 by its blanket fiat to the effect that, “Any person who is a Hindu and possessing the requisite qualification and training can be appointed as a Archaka in Hindu temples” has the potential of falling foul of the dictum laid down in Seshammal (supra). A determination of the contours of a claimed custom or usage would be imperative and it is in that light that the validity of the impugned G.O. dated 23.05.2006 will have to be decided in each case of appointment of Archakas whenever and wherever the issue is raised. The necessity of seeking specific judicial verdicts in the future is inevitable and unavoidable; the contours of the present case and the issues arising being what has been discussed.”

 

[*Note: Clauses 1 and 2 of Article 16 provide that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State, and that no no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State. Article 16(5) however carves out an exception for laws relating to appointments by the State to religious or denominational institutions where a person professing a particular religion or belonging to a particular denomination may be accorded special preference.]

Any law, whether legislative or otherwise, can either be valid or invalid. It’s difficult to understand how the constitutionality of an executive order can differ based on the facts and circumstances of an appointment made under such a law. The issue really ought to have been simple enough for the Supreme Court from a purely constitutional perspective. That the Agamas and its diktats represent an essential religious practice is now trite. After all, the court, in a five-judge bench decision in Seshammal, has already held thus. The only question that was to be answered therefore was whether the governmental order, which sought to deviate from the Agamas, was protected by any one of the exceptions carved into Article 25, specifically whether it was necessary in the interest of social welfare and reform. Unfortunately, the bench in Adi Saiva Sivachariyargal Nala Sangam makes no attempt to answer such questions. Instead, it ends with a rather flawed proposition—that the government order ought to be tested on the touchstone of Article 14, each time an appointment of an archaka is made.

The effective result of the judgment is therefore this: that the executive order is simply extraneous to any appointment of an archaka. Any selection made in the future would have to be in consonance with the Agamas. However, in cases of appointments, where caste, birth or any other constitutionally unacceptable parameter, to use the court’s words, are invoked as criteria, such a choice would be open to challenge under Article 14. This is a quite remarkable conclusion. There is no finding in the judgment on whether the criteria fixed in the Agamas constitute “law” within the meaning of Article 13(3) (it’s apposite to remember here that the court in Seshammal only found that the power of appointing priests to be a secular function; the qualifications for such a post, prescribed as they are under the Agamas, were considered essential to the practice of religion). If the Agamas fall within what are generally regarded as “personal laws,” they would fall outside the scope of the definition prescribed in Article 13(3), and they would therefore not be amenable to a challenge under Article 14. Interestingly, in July this year, in Riju Prasad Sarma v. State of Assam, (2015) 9 SCC 461, the Supreme Court had found that religious scriptures are in the nature of personal law and their validity is ordinarily protected by Articles 25 and 26. The Supreme Court’s almost hypothetical conclusion that an appointment made under the Agamas would infract Article 14 if the appointment partakes a consideration based on caste is therefore doctrinally unsustainable. Were such a position to be accepted, it may well be tantamount to reforming a religion out of existence, to use Justice N. Rajagopala Ayyangar’s aphorism in Sardar Syedna Taher Saifuddin Saheb v. The State of Bombay, AIR 1962 SC 853, for no classification made in a religious scripture is likely to meet the scruples of Article 14.

Ultimately the Supreme Court’s decisions on matters such as these turn on political considerations. In Adi Saiva Sivachariyargal Nala Sangam, the court was clearly handicapped by the decision of its larger bench in Seshammal; what’s more, while Article 25 permits the State to bring forth a law in the interest of social reform and welfare, such a law would necessarily have to be introduced by way of legislation. Unless a larger bench overrules Seshammal, the Agamas cannot be considered as anything but an essential religious practice. And it must logically follow therefrom that the thwarting of appointments of archakas under the Agamas can only be made by way of legislation, and only in the interest of social reform and welfare. Hence, purely on constitutional grounds, the Supreme Court, in my submission, has erred in failing to strike down the Tamil Nadu government’s executive order. Additionally, the court has left us with a further conundrum. Now, every time an appointment of an archaka is made, the selection is likely to be challenged. Each of those challenges will likely entail an analysis of the Agamas, an exercise that the courts are certainly not competent to perform. Reformation of religion is an important function of the state, especially in a country such as ours, where social iniquities abound. But, regardless of how we might feel intuitively about a reformatory measure of the State, the question of how far a constitutional court must go in furthering this movement continues to perplex.

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“Essential Religious Practices” and the Rajasthan High Court’s Santhara Judgment: Tracking the History of a Phrase

This week, the Rajasthan High Court held that the Jain practice of santhara – a ritual of “voluntary and systematic fasting to death” was illegal, since it amounted to abetment to suicide (criminalised under Section 306 of the Indian Penal Code).

There are many issues that arise out of this judgment. This was a PIL filed by a ‘lawyer’ who had no connection with, and was not affected in any way by santhara. The Court’s decision to issue notice and hear the case on merits demonstrates yet again that PIL has been entirely cast off from its moorings: the loosening of standing rules was intended to ensure the representation of those who could not represent themselves. By now, it is used to  transform the Court into a super-legislature, where any social question might be agitated by any person (something similar is ongoing in the Supreme Court, in the Kamlesh Vaswani anti-porn petition). The Court’s analysis of whether santhara is equivalent to suicide is fraught with problems as well. In this essay, however, I will focus on another part of the Court’s judgment: its finding that santhara did not constitute an “essential religious practice” for the Jains, and consequently, was not protected by Article 25 of the Constitution. The Court held:

“We do not find that in any of the scriptures, preachings, articles or the practices followed by the Jain ascetics, the Santhara or Sallekhana has been treated as an essential religious practice, nor is necessarily required for the pursuit of immortality or moksha.”

The essential practices test has been used consistently by the courts at least since 1957. The test allows the Court to initiate a judicial enquiry into whether or not an impugned religious practice is an “essential practice”, independent of what the religion’s adherents themselves say about it. Commenting upon the Supreme Court’s use of the test, Jacobsohn has insightfully noted that it has become “an internal level of reform”: by holding that certain regressive practices do not constitute “essential” parts of a religion, the Court not only denies them constitutional protection, but also takes upon itself the task of recharacterising the religion in a more progressive light, and, in a sense, create new social facts through its holdings. Naturally, for these very reasons, the test has met with fierce criticism. The judiciary, it is argued, possesses neither the competence nor the legitimacy to decide what constitutes an “essential practice”; it is not, after all, “the Supreme Court of Hinduism” (Galanter)  These criticisms are powerful ones, but in this essay, I want to ask a different question. The Constitution does not mention the term “essential religious practice”: it grants protection to the right to practice, profess and propagate one’s religion, not just to engage in the “essential practices” of religion. So where does this concept comes from?

We can find a clue in the Constituent Assembly Debates. On the 2nd of December, 1948, Ambedkar delivered a speech in the Constituent Assembly where, among other things, he observed:

“The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious. It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession, should be governed by religion.”

Ambedkar’s use of the term “essentially religious”, therefore, was in response to a very specific concern. He was worried that unlike in the West, with its seemingly clear demarcation between the City of God and the City of Man, there was no aspect of Indian life which was untouched by religion. Consequently, insofar as the Constitution protected religion and personal laws, there was a very real risk that it would entirely hamstring the State’s power to pass social legislation. He was, therefore, adamant that there must be a separation between religious activities, and secular activities tinged with religion. The latter could have no constitutional immunity from legislation. In Ambedkar’s formulation, it is clear the word “essentially” qualified “religious”, and was designed to separate the religious from the secular.

The wording of Article 25 responds to Ambedkar’s concern. Unlike Article 19, where the main Article lists out the fundamental freedoms (Article 19(1)), followed by the scope of reasonable restrictions (Articles 19(2) – 19(6)), Article 25 starts off with limitations: “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, practise and propagate religion.”

At this point, the following question may be raised: with the limitations built into the right to freedom of religion, is there any further need for Amedkar’s proposed demarcation between that which is “essentially religious” and that which is not? Surely, social and welfare legislation could be justified under the “public order, morality and health” categories. In fact, the very structure of the Article – specifying both the right and its restrictions – ought to preclude threshold enquiries separating the religious from the non-religious (this is the form of rights-adjudication practiced in South Africa, for instance).

Notwithstanding the presence of limitations, however, there might still be a role for the threshold enquiry. To start with, as Ambedkar pointed out, if every sphere of existence has religious significance, then there seems little point in a constitutionally guaranteed right to the freedom of religion in the first place. Secondly, prima facie constitutional protection places a heavy burden of justification upon the State, and if every regulatory law has to run the gauntlet of the “public order, morality and health” tests, many might not survive. And thirdly, the expressive significance of holding something to be a fundamental right protected by the Constitution might well require a threshold enquiry to ascertain whether the reason why the Constitution protects religion in the first place, ought to extend to the practice under question.

The first few judgments after the coming into force of the Constitution did use “essentially religious” in the sense that Ambedkar had used it. In Lakshmindra Swamiar (1954), 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).”

For the Court, therefore, “essential” marked the border between the religious and the secular. These observations were repeated that same year in Ratilal vs State of Bombay, where the Court added that “no outside authorities has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate.”

Three years later, however, in Ram Prasad Seth vs State of UP, the Allahabad High Court put a very different gloss on things. UP Government regulations, which prohibited bigamous marriages to those in public employment, were challenged on the grounds of Article 25. It was argued that the Hindu religion allowed certain funeral rites for a deceased individual to be performed only by sons. Consequently, it was imperative for a Hindu individual to have a son, and sometimes, bigamy was the only way of achieving this. In response, the Court analysed certain important Hindu religious texts, and on the basis of analysis, held that “[bigamy] cannot be regarded as an integral part of a Hindu religion… the acts done in pursuance of a particular belief are as much a part of the religion as belief itself but that to my mind does not lay down that polygamy in the circumstances such as of the present case is an essential part of the Hindu religion.”

Here is the key shift: the word “essential” has gone from qualifying the nature of the practice (i.e., whether it is religious or secular), to qualifying its importance (within the religion) – i.e., from whether something is essentially religious to whether it is essential to the religion. It is a minor grammatical shift, but with significant consequences, because it allows the Court to define questions that are internal to religion in a judicial enquiry, and thereby define the nature of the religion itself.

The Supreme Court adopted this interpretation one year later, in Qureshi vs State of Bihar, holding that the sacrifice of a cow on the occasion of Id was not an essential religious practice for Muslims: “We have… no material on the record before us which will enable us to say, in the face of the foregoing facts, that the sacrifice of a cow on that day is an obligatory overt act for a Mussalman to exhibit his religious belief and idea. In the premises, it is not possible for us to uphold this claim of the petitioners.” The Court further entrenched this position in 1962, in Syedna Saifuddin, while striking down a law that prohibited excommunications. The Court held that Article 25(2), which allowed the State to pass reform legislation, “is intended to save the validity only of those laws which do not invade the basic and essential practices of religion which are guaranteed by the operative portion of Art. 25(1).” Four years later, this attitude seemed to have become such an undisputed part of judicial wisdom, that Chief Justice Gajendragadkar was able to devote an entire judgment to answering the central questions: who is a Hindu, and what constitutes Hinduism?

We can see, therefore, that the essential practices test did not originally mean what it has come to mean now. At this point, however, another objection might be raised: does not the question of whether a particular practice is religious or secular involve as much judicial interference as the question of whether it is essential to a religion? The answer is: not necessarily. In its early judgments, the Court held that this question could only be settled by the tenets of the religion itself, which does not necessarily mean judicial enquiry into what those tenets say. In other jurisdictions, the Court only asks whether a particular practice is “sincerely held” by its adherent, a question that requires it to go into the adherent’s past behaviour and conduct, but not into the substantive nature of the practice itself. A purely subjective test, however, might simply smuggle back in Ambedkar’s fundamental worry: that religion could now be invoked to cover every aspect of a person’s life. A possible answer to this was suggested by Justice Sinha in his dissenting judgment in Syedna Saifuddin, holding that practices that directly impacted a person’s enjoyment of his civil rights that were guaranteed by law (as excommunication did), would not be given constitutional protection.

I cannot here go into a full analysis of Justice Sinha’s fascinating proposal. What I hope to have established is that in its present form, the essential practices test is based on an interpretive mistake: it misinterprets what Ambedkar said, as well as the early judgments of the Supreme Court itself. This, coupled with the institutional problems that it creates, should be enough for a fundamental reappraisal of this test within the scheme of Indian constitutional jurisprudence.

 

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Freedom of Religion and Non-Discrimination: The Haji Ali Dargah’s Decision to Ban Women from Access to the Inner Sanctum

In 2012, the Haji Ali Dargah Trust, which administers the shrine of Saint Haji Ali, barred women from entering the the inner sanctum of the dargah, which houses the tomb of the saint. In November 2014, the Bharatiya Muslim Mahila Andolan filed a PIL before the Bombay High Court, challenging this decision. The hearings are ongoing, and the Court will issue directions on April 1. In this post, I will attempt to argue that the PIL should succeed, and that the Court ought to issue directions to the State authorities to ensure that women are not barred from offering prayers in the inner sanctum.

In order to succeed, the petitioners must prove the following propositions: first, that the right to offer prayers in the sanctum of the Haji Ali Dargah is protected under Article 25 of the Constitution (right to freedom of religion) or, at any rate, is a right at common law; secondly, this right is not overridden by any rights that the Dargah Trust might have under Article 25 or 26 (i.e., the freedom of religious denominations to manage their religious affairs); and thirdly, that the petitioners are entitled to enforce their rights against the State, by requiring the State to guarantee and facilitate their access to the inner sanctum of the dargah.

On the first proposition: As the Supreme Court has held in a number of cases, such as The Commissioner, Hindu Religious Endowments vs Lakshmindra SwamiarJagannath Ramanuj Das vs State of Orissa and Sardar Saifuddin vs State of Bombay, the right to worship, and modes of worship, are protected under Article 25 of the Constitution. Admittedly, it has also been held that the right to worship doesn’t extend to any and every place. But in Ismail Faruqui vs Union of India, while holding that a mosque was not an essential and integral part of the practice of Islam, the Court also held that if a particular place had a “particular significance for that religion”, access to that place for the purposes of worship would be protected under Article 25. It is fairly well-established that the inner sanctum/tomb of a dargah does bear special significance for the followers of the saint in question. Consequently, the petitioners would have an Article 25 right to offer prayers at the tomb.

Even if the right to offer worship at a particular place does not have the status of a constitutional right under Article 25, it remains – at the very least – a civil right, enforceable by a suit. This was the stated position in Das Gupta J.’s judgment in Sardar Saifuddin vs State of Bombay (pointed out above). According to the learned judge, in construing the provisions of the Bombay excommunications legislation, “a right to office or property or to worship in any religious place or a right to burial or cremation is included as a right legally enforceable by suit.”

In a separate case – in the context of Hindu denominational temples (Venkatramana Devaru vs State of Mysore), the Court noted, in general terms, that if it is found thatall persons are freely worshipping in the temple without let or hindrance, it would be a proper inference to make that they do so as a matter of right.” There is nothing in the logic of this proposition that limits it to temples. Consequently, the petitioners have a fundamental right under Article 25, to offer prayers in the inner sanctum of the Haji Ali dargah. Failing this, they have a common law right against obstruction of access to this place of worship by other private parties.

On the second proposition: as stated above, in part, it is now a well-accepted position of law that insofar as Articles 25 and 26 protect not just matters of doctrine or belief, but also to acts done in pursuance of religion (such as, allegedly, the exclusion of women from the inner sanctum), such constitutional protection is limited to rituals and observances, ceremonies and modes of worship which are integral parts of religion.” This has been upheld in the cases discussed above – Lakshmindra Swamiar, Mahant Jagannath Ramanuj Das, Venkataraman Devaru; Sardar Saifuddin, etc., and is a proposition of law, is beyond argument. The logic of this argument was explained by Dr. Ambedkar in the Constituent Assembly Debates. He pointed out that unless constitutional protection was limited to essentially religious practices, religion would end up covering an unconscionably vast range of the lived existence of most people..

The distinction has been explained by Justice Sinha, in his dissenting opinion (although not on this point) in Sardar Saifuddin vs State of Bombay. The learned judge noted: “We have therefore, to draw a line of demarcation between practices consisting of rites and ceremonies connected with the particular kind of worship, which is the tenet of the religious community, and practices in other matters which may touch the religious institutions at several points, but which are not intimately concerned with rites and ceremonies the performance of which is an essential part of the religion.”

Consequently, whether the Dargah Trust has an Article 26 (or 25) right to exclude women from the inner sanctum would depend upon whether controlling access to the sanctum amounts to an “essential religious practice”. I suggest that it does not. In Lakshmindra Swamiar, the Supreme Court noted that what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion(paragraph 20) To answer this question, Courts have examined the foundational texts of a religion, as well as customary practices. For instance, in Ram Prasad Seth vs State of UP, the Allahabad High Court analysed extracts from the Manusmriti, the Dattak Mimamsa etc., in order to find that polygamy was not an essential part of Hindu religion. In cases involving Islam, the Courts have consulted the Qur’an and its suras. For example, in Mohd. Hanif Qureshi vs State of Bihar, the Supreme Court relied upon the Quran to hold that sacrificing a cow on Bakr’id was not an essential part of the Islamic religion.

In this case, there are two crucial facts that indicate that the exclusion of women from the inner sanctum of the dargah is not an essential religious practice. As the petitioners have pointed out, the Qur’an and the Hadith, which list the core of the practices and beliefs that constitute Islam (that is, according to the Supreme Court), do not prescribe the exclusion of women from places of worship. And secondly, as the petitioners have also demonstrated,  65% of the dargahs surveyed by them across the city of Bombay, do not restrict women’s access to the inner sanctum.

This argument is buttressed by the fact that the Trust has made three arguments to support its exclusion of women from the inner sanctum. Apart from the argument that it is required by Islam (which has been rebutted above), it has also been argued that because women “are inappropriately dressed“; and that this step is being taken for their safety and security (and their “chastity”). It is clear that neither of these two reasons are “essentially religious” in nature, and therefore, fall outside the ambit of Articles 25 and 26 altogether.

In sum, the exclusion of women from the inner sanctum is neither sanctioned by the authoritative sources of Islamic religious doctrine, and nor by the present practices of a majority of dargah administrations. Therefore, in accordance with the settled jurisprudence of the Supreme Court, it is not an “essential religious practice” that is protected under Article 25 or 26.

As to the third proposition: once it has been established that the petitioners have a constitutional right to offer prayers in the inner sanctum of the Haji Ali Dargah, and that the administrators have no corresponding right to exclude them, the onus lies upon the State officials to effectuate that right by ensuring that its exercise is not obstructed by private parties (such as the Trust functionaries. This proposition was upheld by the Supreme Court in Vishakha vs State of Rajasthanand subsequently in Medha Kotwal Lele vs Union of India.

Therefore, on legal and constitutional grounds, the PIL should succeed. The petitioners have a fundamental right to access the tomb and the inner sanctum of the dargah. The respondents have no equivalent right to exclude them. Contrary to their claims, under the existing position of law, the Court would not be “interfering in a religious matter” if it was to order access. Consequently, the Court ought to direct the relevant State authorities to ensure that the petitioners are allowed to exercise their fundamental rights, including the right of access and prayer.

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

(This is the second essay in a three-part series on secularism and the freedom of religion, by Suhrith Parthasarthy, a lawyer and a journalist, who currently practices as an attorney at the Madras High Court. In Part One, the Supreme Court’s recent deviation from its time-honoured practice of intervention into religious matters on the ground of social reform was discussed. In this post, the ongoing Tamil Nadu litigation that throws up the question of intervention yet again, is examined. In the last post, the normative and constitutional arguments that become salient in this case, will be discussed)

Traditionally, as Manuraj Shanmugasundaram pointed out in the January issue of The Caravan Magazine, priests to Hindu religious temples in Tamil Nadu have been appointed by following a hereditary principle of succession, generally within a community of Brahmins. Section 55 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, protected this practice of appointing priests on a hereditary basis. We shall now take a look at what this section originally said:

“(1) Vacancies, whether permanent or temporary, among the office-holders or servants of a religious institution shall be filled up by the trustee in cases where the office or service is not hereditary.” And “(2) In cases where the office or service is hereditary, the person next in the line of succession shall be entitled to succeed.”

In 1970, however, with a view to abolishing this practice of making hereditary appointments, the state government amended, among other provisions, Section 55 of the Act. The amended section stated “(1) Vacancies, whether permanent or temporary among the office holders or servants of a religious institution shall be filled up by the trustee in all cases. Explanation: The expression ‘Office-holders or servants shall include archakas and poojaris.’” And “(2) No person shall be entitled to appointment to any vacancy referred to in sub-section (1) merely on the ground that he is next in the line of succession to the last holder of office.” A further explanation was also added: “In making any appointment under this subsection, the trustee shall have due regard to the claims of members of the family, if any, entitled to the succession.”

This amendment to Section 55 was challenged in the Supreme Court by way of 12 separate writ petitions filed by hereditary Archakas and Mathadipatis of some of the most ancient and historic Hindu public temples in Tamil Nadu. The petitioners’ contended in ERJ Swami v. The State of Tamil Nadu[1] that Articles 25 and 26 of the Constitution of India protected their freedom of hereditary succession to the office of the Archaka, and this freedom was an essential and integral part of the faith of the Saivite and Vaishnavite worshippers.

The court through Justice DG Palekar’s judgment dismissed the writ petitions. It held that the power to appoint archakas to public temples was a secular function (remember, the Constitution explicitly allows the state to regulate such non-religious functions) and to the extent that the trustees of the temples were no longer bound to make appointments on the sole ground of hereditary succession the amendments were valid. But, the court also held, that the amendment did not provide any power to the trustees to eschew the Agamas, which constitute the fundamental treatise on rituals in Hindu temples, in determining who could be appointed as a priest.

Justice Palekar’s observations in this regard are telling, and worthy of being quoted in full. He writes:

“The Agamas have also Rules with regard to the Archakas. In Saivite temples only a devotee of Siva, and there too, one belonging to a particular denomination or group or Sub-group is entitled to be the Archaka. If he is a Saivite, he cannot possibly be an Archaka in a Vaishnavite Agama temple to whatever caste he may belong and however learned he may be. Similarly, a Vaishnavite Archaka has no place as an Archaka in a Saivite temple. Indeed there is no bar to a Saivite worshipping in a Vaishnavite temple as a lay worshipper or vice versa. What the Agamas prohibit is his appointment as an Archaka in temples of a different denomination. …Shri R. Parthasarthy Bhattacharya, whose authority on Agama literature is unquestioned, has filed his affidavit in Writ Petition No. 442 of 1971 and stated in his affidavit, with special reference to the Vaikhanasa Sutra to which he belongs, that according to the texts of the Vaikhansa Shastra (Agama), persons who are the followers of the four Rishi traditions of Bhrigu, Atri, Marichi and Kasyapa and born of Vaikhanasa parents are alone competent to do puja in Vaikhanasa temples of Vaishnavites. They only can touch the idols and perform the ceremonies and rituals. None others, however, high placed in society as pontiffs or Acharyas or even other Brahmins could touch the idol, do puja or even enter the Garha Griha. Not even a person belonging to another Agama is competent to do puja in Vaikhanasa temples. That is the general rule with regard to all these sectarian denominational temples. It is, therefore, manifest that the Archaka of such a temple besides being proficient in the rituals appropriate to the worship of the particular deity, must also belong, according to the Agamas, to a particular denomination. An Archaka of a different denomination is supposed to defile the image by his touch and since it is of the essence of the religious faith of all worshippers that there should be no pollution or defilement of the image under any circumstances, the Archaka undoubtedly occupies an important place in the matter of temple worship. Any State action which permits the defilement or pollution of the image by the touch of an Archaka not authorised by the Agamas would violently interfere with the religious faith and practices of the Hindu worshipper in a vital respect, and would, therefore, be prima facie invalid under Article 25(1) of the Constitution.”

To sum up, the Supreme Court in ERJ Swami’s case upheld the 1970 Amendment, by holding that the function of appointing an Archaka was secular in nature, and that therefore a trustee of a temple was not bound to appoint priests on the basis of hereditary succession. The court nonetheless rendered nugatory the fundamental purpose of the amendment by also holding that the trustee was nonetheless obligated to follow the Agamas in arriving at a decision. And the Agamas provide that only members of particular “denominations” are competent to preside as priests. As a result of this judgment, every time an appointment is made to the position of an Archaka in a public temple, notifications seeking applications often seek to reinforce the fulfilment of specific conditions of caste as a criterion for appointment.

In 2006, however, the government of Tamil Nadu sought to further change this practice. It introduced an ordinance, which declared that “suitably trained and qualified Hindus, without discrimination of caste, creed, custom or usage” could be appointed as priests to the 36,000-odd temples under government administration across the state. The ordinance was immediately challenged in the Supreme Court, and has been stayed pending a final decision. The primary argument of the petitioners is that the new law violates the specific finding of the Supreme Court in ERJ Swami’s case, that it seeks to permit the state to act contrary to the Agamas, even though the fulfilment of these conditions has been held to be integral to the practice of the religion.

[1] AIR 1972 SC 1586.

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