A Case Against the Essential Religious Practices Test

The Judiciary in Bharat has yet again engaged in their self-assumed duty of curtailing religious practices. The ancient and uninterrupted practice of Pashubali or sacrifice of animals in the temples of Tripura has recently been banned by the Tripura High Court.

One of the key principles used by the honorable High Court in arriving at this judgement is the ‘Essential Practices Test’ (EPT). The EPT, which is a creation of the Indian Judiciary and does not find any mention in our Constitution, is relied upon increasingly by our Judiciary to determine whether or not a religious practice is ‘core’ according to the doctrines of the particular religion. Only those practices that pass the EPT are accorded protection as a Fundamental Right. Anything that fails this test is subject to the review and restriction of the State.

Article 25 of our Constitution is what grants us the right to freedom of religion. Its exact reading is as below.

25. Freedom of conscience and free profession, practice and propagation of religion

(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, practise 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 reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly

While citizens of Bharat have indeed been granted some rights to practice and profess religion through the above Article, we are increasingly noticing that the same is being interpreted as allowing only the ‘essential practices’ of a religion to go on unhindered. The Supreme Court has repeatedly held that anything that is not ‘essential’ to a religion can be subjected to interference from the State. It can be modified, tampered and even disallowed.

Unfortunately, the effect of such an interpretation has been felt almost exclusively by the Hindus of this nation. Very rigid standards, almost completely Abrahamic in nature, have been applied to test any practice for essentiality. Most Hindu rituals, traditions and customs fail the test for want of sanction from a doctrinal ‘book’.

The present article tries to find out if this test of ‘essentiality’ is a valid one. It looks at this issue from multiple angles:

1.) Does the idea of protecting only an ‘Essential’ set of practices go well with the concept of Fundamental Rights?

2.) Did the makers of our Constitution envisage such a distinction in religious practices? Did they intend to protect only essential practices? Or was the cover meant to be available for all religious practices?

3.) Does the text of Article 25 which guarantees religious freedom allow a narrow interpretation as undertaken currently? Or does it in fact promise the opposite?

4.) Did the jurisprudence of this country in the early years of the Republic actually interpret Article 25 to classify practices as essential or otherwise?

Constraints on the State and Freedom for the people

The very purpose of Fundamental Rights, or Bill of Rights, in any Constitution is to act as a check on the powers of the State from taking away the liberty and freedom of the people. Therefore, while every Constitution does provide some authority to its Government to restrict rights (since no right can be absolute), the primary need for encoding the rights are to ensure that the State gets to exercise its power of restriction very sparsely and under unavoidable circumstances.

In other words, Fundamental Rights are restrictions on the State and not on the people.

The Sapru Committee, appointed by the All-Parties Conference in 1945 prior to the formation of the Constituent Assembly, captured this principle very well in its report. Referring to the purpose of Fundamental Rights, it said that they were necessary not only as:

“…assurances and guarantees to the minorities but also for prescribing a standard of conduct for the legislatures, governments and the courts..”

Therefore, it is not the people who possess the freedom to practice only essential religious practices but the State that has the power to impose only essential restrictions!

Fundamental by definition means Abundant

If a State does not intend to guarantee its citizens a particular right to the fullest possible extent, then it is meaningless to consider it as a Fundamental Right. The purpose of Fundamental Rights is not to provide a notional grant of opportunity to exercise the right. By definition it means that the right can be exercised to the fullest possible extent and only under extenuating circumstances can the State restrict a right.

In his note on the Fundamental Rights submitted to the Constituent Assembly in December 1946, Sri K T Shah delves on this topic very descriptively. Talking about the purpose of Fundamental Rights, he says:

It also means the fullest opportunity to develop one’s personality and potentiality to the highest possible in the existing stage of our civilization”

To illustrate his definition, he expands on two Fundamental Rights that were in the works in the Draft Constitution. Speaking about the Right to Life, he says:

Life, that is to the say, the mere right to exist, will have little value, if it is to be bereft of any opportunity to develop or bring out what is in every man or woman. It follows inevitably that the right to live is the right to live decently as a member of a civilized society and have all the freedom and advantages that would go to make life agreeable, and living assured in a reasonable standard of comfort and decency”

Again, while explaining the Fundamental Right to Equality, he says:

Here also the term by itself is likely to be misconceived or interpreted unduly narrowly, if it is not added that equality is not merely equality of treatment before the established system of Law and Order but also of opportunity for self-expression or self-realization that may be inherent in every human being”

Therefore, just as Right to Life cannot be subjected to an ‘Essential Breathing Test’ or the Right to Freedom of Speech cannot be subjected to an ‘Essential Utterance Test’ so also the Right to Religion cannot be subjected to an ‘Essential Practices Test’.

The real intent of our Constitution makers

The source for what turned out to be Article 25 of our Constitution is the Draft Fundamental Rights document of Sri K M Munshi. In that draft, we find the right to religious freedom encapsulated as follows:

All citizens are equally entitled to freedom of conscience and to the right freely to profess and practise religion in a manner compatible with public order, morality or health.

(Source: Munshi’s Note and Draft Articles on Fundamental Rights, March 17, 1947)

The above version of the Article got into the initial drafts of the Constitution and was discussed in the Fundamental Rights sub-committee of the Constituent Assembly. This sub-committee submitted an interim report to the Advisory Committee of the Constituent Assembly on April 16, 1947 which contained a slightly modified version of the right, as follows:

All persons are equally entitled to freedom of conscience, to freedom of religious worship and to freedom to profess religion subject to public order, morality or health and to the other provisions of this chapter.

(Source: Report of the Sub-Committee on Fundamental Rights, April 16, 1947)

We notice that the two main differences between the original draft and the one passed by the sub-committee involved changing ‘citizens’ to ‘persons’ and removing the phrase ‘practise religion’ and instead introduction of the phrase ‘freedom of religious worship’.

This version of the draft was sent to the Minorities sub-committee of the Constituent Assembly which discussed the draft in detail and sent back a modified version of the Fundamental Right. This new version – a third draft, was as below:

All persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion subject to public order, morality or health and to the other provisions of this chapter.

(Source: Interim Report of the Sub-Committee on Minorities, April 19, 1947)

One can instantly notice that the right to ‘practise’ religion was re-introduced by the Minorities sub-committee.

This version of the draft went to the Advisory Committee of the Constituent Assembly, which deliberated in detail this provision on April 21 and 22, 1947.

One of the main points of debate and discussion was on the re-inclusion of the word ‘practise’.

<span”>The Chairman of the Committee, while introducing this clause (16 – in the draft) highlighted this point.

Sri Jagajivan Ram and Sri C Rajagopalachari did not notice the importance of the change and suggested retaining the original clause (without the word ‘practise’). However, Sri K M Munshi jumped in and explained the need for this word and also gave a very interesting, and useful, example.

There was a discussion on this in the Minorities Committee. Many things may not be exactly worship but may be in a sense practice of that religion. You may have for instance the immersion procession of Ganapathi. It is not worship, but practice of religion. If you go to a temple, it is worship. Further than that, it will be practice of religion”

The above explanation by Sri Munshi, and the usage of the Ganapathi immersion example, clearly indicates that the word ‘practise’ in the Article was meant to cover every kind of religious practice and not just ‘essential’ ones. Clearly, Ganapathi immersion is a relatively recent practice and not something that is reflected in any of the ancient books of Hindu Dharma.

C Rajagopalachari then reiterated whether only religious worship should be granted as a right, or even religious practice. In response, Sri K M Panikkar said that although the State should have some discretion, it does not mean interference in the practices.

……We thought that it is essential to give a certain amount of discretion in that matter to the State. It does not mean that religious practices are to be interfered with. If the State considers that certain religious practices require modification by the will of the people, then there must be power for the State to do it….

At this point, Dr Syama Prasad Mookerjee stepped in and insisted that religious practices must be allowed:

There are certain religious practices which do not come within religious worship and if you omit religious practice, it will lead to considerable hardship and difficulties. It would still be open to the government to take any step to prevent the observance of religious worship or practice on grounds of public order, morality or health. As regards social reform, I suggest we insert a proviso to cover that”

This last suggestion regarding social reform is what led to Article 25(2)(b) in our Constitution. By contrasting religious worship with religious practices, Dr SPM clearly made the case for traditional practices of the Hindu religion.

Alladi Krishnaswami Iyer, Alban D’souza and others spoke of the need for the State to have some powers to control these practices. However, they made their real intention clear by highlighting examples such as killing of cows, music before mosques, Sati, Sarda Act, Widow remarriage and other such major issues with various religions which should not get the license through the inclusion of the word ‘practise’.

At this point, Ujjal Singh, one of the minority members spoke fervently in favour of religious practices.

Sir, in my religion it is more a religious practice that matters. I therefore strongly feel that whatever provision you may make in respect of public order or morality or even in respect of social legislation, you must protect religious practice. Otherwise you will not be protecting my religion”

Again, the above clarification makes it clear that the intention of the word ‘practise’ was to allow freedom to all practices and not only to the core, or essential, ones.

The Chairman of the Advisory Committee then put the changes to vote and it was formally accepted!

Thus the word ‘practise’ was added in Article 25(1) of our Constitution specifically to guarantee protection to traditional practices and rituals of our religion. It was never intended to be applicable only for certain core practices, as is being interpreted these days.

Violation of the Promise in Article 25 itself

Let us look at the first clause of Article 25 once again. It says:

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

The solemn promise that the State makes to its citizens is the right freely to profess, practise and propagate religion

In other words, the promise is to allow the right (a) freely to profess (b) freely to practise and (c) freely to propagate.

The importance of the word ‘freely’ in the Article must not be lost. The meaning of ‘freely’ is not just that the right shall not be controlled but that it shall also be allowed to the maximum extent.

According to Google ‘freely’ means ‘in copious or generous amounts’.

Cambridge dictionary defines ‘freely’ as ‘without being controlled or limited’

Merriam Webster interprets ‘freely’ as ‘not strictly following a model, convention, or rule’

Collins dictionary says ‘Freely means many times or in large quantities’

Therefore, the concept of allowing only a small subset of ‘essential’ practices goes fundamentally(!) against the concept of ‘free practise of religion’ that is explicitly promised in our Constitution.

Essential practices and judicial interpretation

With the above clarification about the intent of our Constitution makers, let us look at another important aspect. Increasingly, our court judgements make a point that only ‘essential’ practices of a religion are protected by Article 25(1) and non-essential ones can be modified by the State.

The most often stated proof in support of this is the statement of J Mukherjea in the famous Shirur Mutt vs Commissioner, Hindu Religious Endowments (hereafter referred to as Shirur Mutt) case.

A very good example of how our judges rely on Shirur Mutt is in the recent Sabarimala case judgement.

The honourable CJI says the following:

Article 25 merely protects the freedom to practise rituals, ceremonies, etc. which are an integral part of a religion as observed by this Court in John Vallamattom and another v. Union of India31……..

…..This Court, in Shirur Mutt (supra), for the first time, held that what constitutes an essential part of a religion will be ascertained with reference to the tenets and doctrines of that religion itself. The Court had opined thus:

“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.”

A cursory reading of the above statement would lead us to believe that Shirur Mutt actually intended to classify religious practices into essential and non-essential parts, and only the essential parts enjoyed the protection of Articles 25 and 26. However, a closer reading of the Shirur Mutt judgement reveals a different picture.

The comment from J Mukerjea was in response to a claim from the then Attorney General about when clause 2(a) of Article 25 becomes applicable. As can be seen from above, clause 2(a) allows the State to regulate any political or economic activity happening along with religious activities. The Attorney General’s claim is mentioned in the judgement as below:

The learned Attorney-General lays stress upon clause (2)(a) of the article and his contention is that all secular activities, which may be associated with religion but do not really constitute an essential part of it, are amenable to State regulation

The honourable J Mukherjea then responded in this fashion:

“The contention formulated in such broad terms cannot, we think, be supported. 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 ablations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of article 26(b).

What article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality, but regulation of activities which are economic, commercial or political in their character though they are associated with religious practices”

When read in entirety, the following facts emerge

a.) The honourable judge made a comment about essential parts of a religion ONLY to distinguish it from any non-religious practices such as political, economic or commercial ones. In fact, immediately the honourable judge gives the example of Jehova’s witnesses in the Australia and how purely political activity was being masked under the garb of religious activity.

b.) It is possible that the Fundamental Right would be exploited by some unscrupulous elements by masking commercial or political activities under the mask of religious practice. Under such a scenario, the honourable judge opined, the whole practice has to be evaluated against the doctrines of the religion and a determination must be made whether the undertaking is truly a religious practice or not.

c.) Shirur Mutt in fact emphasises that the State shall not regulate religious practices as such, except when they run counter to public order, health and morality.

d.) The division of essential vs non-essential arises ONLY if there is a decision to be made to judge whether the practice has any economic, political or commercial connotations. This classification is not a reason to decide whether the practise itself can be changed or disallowed.

Thus we see that an incorrect interpretation of a passing comment in the Shirur Mutt case has become the basis for deciding whether religious practices can be tampered with or not, when neither the original makers of the Constitution, nor the early judicial interpretations allowed any of this.

Since the line of judicial interpretation is consistently moving on the above lines, it is time to remove the confusion explicitly and insert an amendment into Article 25 allowing traditional rituals, customs and practices the complete protection of the State.

References

1.) The Making of India’s Constitution – A Study, B Shiva Rao

2.) The Making of India’s Constitution – Select Documents 2, B Shiva Rao

3.) Indian Young Lawyers Association & Ors vs The State of Kerala & Ors, September 2018, Supreme Court Judgement

4.) The Commissioner, Hindu Religious Endowments vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, April 1954, Supreme Court Judgement


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About the Author

Hariprasad N
श्रीमध्वाचार्यस्य तत्ववादः | ऋक् शाखः | राजराजायते रिक्तो राघवेन्द्रं तमाश्रये | सत्यमेव जयते नानृतं | Twitter: @pranasutra