Spiritual orientation, religious practices and courts

Judges should not become the clergy to determine theological issues; progressive India should not allow even an essential religious practice if it is contrary to constitutional ethos and values

Updated - July 06, 2024 09:52 am IST

Published - July 06, 2024 12:16 am IST

‘It is the Constitution of India and not religions that should govern us’

‘It is the Constitution of India and not religions that should govern us’ | Photo Credit: Getty Images/iStockphoto

“What is religion to one is superstition to another,” said Chief Justice Lathman of Australia in Adelaide Company of Jehovah’s Witnesses Inc vs Commonwealth (1943). Religion has been at the centre of human societal existence since time immemorial. Man is incurably religious; Indians more so. Right now, we are in a rush hour of god with religiosity on the rise and spirituality on the decline.

In a significant yet controversial order in P. Navin Kumar (2024), by Justice G.R. Swaminathan of the Madras High Court, the religious practice of angapradakshinam has been allowed. The practice involves rolling over the banana leaves on which other devotees (in this instance) of Sri Sadasiva Brahmendral of Nerur village in Tamil Nadu had partaken food. The order overruled the 2015 order of Justice S. Manikumar.

In 2015, the petitioner had argued that the practice involved Dalits and non-Brahmins rolling over on left-over plantain leaves even though the district administration had disputed the allegation of caste discrimination. Justice Manikumar had relied on the Supreme Court of India’s order, in State of Karnataka and others vs Adivasi Budakattu Hitarakshana Vedike Karnataka and others (in Special Leave Petition (C) No.33137 of 2014), where the top court had stayed a 500-year-old ritual on similar lines where mainly Dalits used to roll over the leaves. Justice Swaminathan refused to follow the 2015 order as temple trustees which used to organise the event were not made parties, and thus not heard. Moreover, not only Dalits but even others too rolled over the leaves and thus no caste discrimination was there.

Revival of a debate

The order has revived the debate on issues such as what is religion; how essential practices of any religion are to be determined, and how far the judiciary has been consistent in such determination. Justice Swaminathan, in a well-researched order, has cited all the important judgments of the Supreme Court to reach the conclusion that the petitioner, P. Navin Kumar — who has taken the vow of angapradakshinam, and is entitled to execute it as part of his freedom of religion under Article 25 and right to privacy under Article 21 and human dignity — is in no way undermined in such a practice. He even held that rolling over on used banana leaves is part of the freedom of movement under Article 19(1)(d).

Without any evidence being strictly examined, as was done in similar cases, Justice Swaminathan took judicial notice of the fact that angapradakshinam is an established religious practice. Thus, like other cases, no questions were being asked whether it is an essential and integral practice of the Hindu religion. Or whether it is a mandatory practice and not a mere superstitious practice. He has quoted the Krishna Yajur Veda and Bhavishyapurana which describe this practice as a noble act, but every noble act cannot get the high status of a mandatory act.

The subject of essential practices

The framers of the Indian Constitution had subordinated the freedom of religion to all other fundamental rights. It has further been subjected to public order, health and morality, with additional powers being given to the state to bring in social reforms. The courts have further restricted the freedom to only the ‘essential religious practices’. Accordingly such a plea was accepted in just seven out over 47 cases and that is why the latest pronouncement, by Justice Swaminathan needs critical evaluation. Is not the rolling over on used banana leaves with leftover food an unhygienic practice with the danger of health hazards? Can the right to privacy be claimed in respect of a public event such as an angapradakshinam?

Justice Swaminathan observed that privacy is not lost if an individual is in a public place. In an interesting analogy, the learned judge, in paragraph 21 of his judgment, held that ‘If the right to privacy includes sexual and gender orientation, it certainly includes one’s spiritual orientation also.’ It is open to a person to express this orientation in the manner he deems fit subject to rights of others.

The leading Supreme Court judgment on the freedom of religion was Sri Shirur Mutt (1954) where the Court had observed that Article 25 guarantees freedom not only to entertain such religious belief as may be approved of by one’s judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper.

The Court further held that religion does prescribe rituals, ceremonies and modes of worship which are regarded as an integral part of religion. The Court was categorical in saying that ‘what constitutes the essential part of religion is primarily to be ascertained with reference to the doctrines of that religion itself’. In subsequent years, the Court became inconsistent in its determination of essential religious practices and moved away from looking at a particular religion to decide its essential practices and brought in its own rationality. Thus, a five-judge Bench in The Durgah Committee, Ajmer (1961) said that freedom of religion protects only essential and integral practices of a religion and does not extend to practices, though religious in character may have sprung from merely superstitious beliefs and be extraneous and unessential accretions to religion itself. Why was angapradakshinam not tested on this touchstone?

In Gramsabha of Village Battis Shirala (2014), a particular sect claimed the capturing and worship of a live cobra during nagpanchnami to be an essential part of its religion. They placed reliance on the text of Shrinath Lilamrut which prescribed such a practice. The court relied on the more general Dharmashastra text to rule that since there was no mention of capturing a live cobra, it could not be an essential practice of the petitioners’ religion.

In Mohammed Fasi (1985), a Muslim police officer challenged a regulation in the Kerala High Court which did not permit him to grow a beard. It is disgusting to note that rather than looking at the question of the essentiality of a beard in Islam, the court rejected the petitioner’s argument simply by relying on the irrelevant fact that certain Muslim dignitaries do not sport a beard and that the petitioner did not have a beard in previous years. Therefore, the court looked at empirical evidence of practice rather than religious texts. The court refused to permit the keeping of a beard by a policeman as it was merely a noble and pious act because it was based on sayings of Prophet (Hadith) and not made mandatory in the Koran. The hijab was similarly not found mandatory.

In Acharya Jagdishwarananda Avadhuta (2004), where the Calcutta High Court found that the tandava dance was an essential practice of the Ananda Margi faith, the Supreme Court overruled the High Court by looking at earlier judicial verdicts and not religious texts. Another strange reason provided was that the Ananda Margi faith had come into existence in 1955 and that the tandava dance was adopted only in 1966. Therefore, as the faith had existed without the practice, it could not be accepted as an essential feature of the faith. The approach seems to identify a religious practice as only an integral practice if it existed when the religion was founded. This logic would lead to an approach to religious practices that are frozen in time. By this logic no Jewish, Christian and Islamic practice can be protected if it was not considered integral by Moses, Jesus Christ and Muhammad, respectively, in their lifetime.

The ‘essentiality test’ reached absurd levels in M. Ismail Faruqui (1995) where the top court was dealing with the issue of the state acquiring the land over which the Babri Masjid once stood. The court held that while offering of prayers is an essential practice, the offering of such prayers in the mosque is not unless the place has a particular religious significance in itself. Everyone knows congregational prayer is central to Islam and that mosques are an essential means to achieve this objective. Yet, the mosque was not held essential.

The Constitution is supreme

This writer has consistently held the view in his articles that judges should not become the clergy to determine purely theological issues and that a progressive nation such as India should not allow even an essential religious practice if the same is contrary to constitutional ethos and values. It is the Constitution of India and not religions that should govern us. Only that much religious freedom can be granted as is permitted by the Constitution.

Faizan Mustafa is the Vice-Chancellor of the Chanakya National Law University, Patna, Bihar. The views expressed are personal

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