Religious practices is best determined by clergy, not judiciary - Law Prof

The Indian Express - Aug 3, 2015

Judging The Headscarf
The essentiality of religious practices is best determined by clergy, not judiciary.

Written by Faizan Mustafa

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The state has power to regulate secular activities associated with religious practice. The question is how to decide whether an activity is religious or secular.

The High Court of Australia observed in Jehovah’s Witnesses Inc vs Commonwealth in1943: “What is religion to one is superstition to another.” India’s Supreme Court has once again taken upon itself the task of defining “essential religious practices”.

The law and the state cannot and should not tell us what is essential or non-essential in religion. The judiciary should not take over the role of the clergy. The denial of the headscarf to MBBS aspirants in the name of “public order” may be justified if “public order” is widely interpreted, but pronouncing a verdict on the essentiality of the headscarf was unnecessary.

The Constitution combines freedom of religion with a mandate to the state to intervene in religious affairs if social welfare so demands. The state has power to regulate secular activities associated with religious practice. The question is how to decide whether an activity is religious or secular.

In the Shirur Mutt case (1954), it was held that the term “religion” will cover all rituals and practices “integral” to a religion. The SC took upon itself the responsibility of determining what is integral. The court said that the question of religion would be decided by taking into consideration what the religious denomination considered essential or crucial. This is called the “essentiality test”. But this exercise produces obscure results and tends to lead the court into an area beyond its competence.

The essentiality test was crystallised in the temple entry case. After examining selective Hindu texts, the court came to the conclusion that untouchability was not an essential Hindu practice. In Gramsabha of Village Battis Shirala vs Union of India, a sect claimed that the capture and worship of a live cobra is essential to its religion. It relied on Shrinath Lilamrut, which prescribed such a practice. The court relied on the more general Dharmasastra to rule that, since there was no mention of capturing a live cobra therein, it could not be an essential practice. In another case, a Muslim police officer challenged a regulation that did not permit him to grow a beard. Rather than looking at the essentiality of the beard in Islam, the court rejected the petitioner’s argument by relying on the irrelevant fact that certain Muslim dignitaries do not sport a beard. The court looked at empirical evidence of practice rather than religious texts. Yet, animal sacrifice among Hindus was denied protection, despite empirical evidence to the contrary.

Similarly, in the Tandava dance case, the Calcutta High Court had originally found that Tandava dance was an essential practice of the Ananda Marg. But the SC overturned this decision, relying on the doctrine of precedent to hold that Tandava was not an essential practice. Here, essentiality was determined by earlier judicial verdicts and not religious texts. Another strange reason cited was that, since the Ananda Marg came into existence in 1955 and since the Tandava dance was adopted only in 1966, the practice could not be accepted as essential. The apex court’s approach appears to identify a religious practice as integral only if it existed when the religion/ sect was founded. This logic could produce an approach to religious practices that is frozen in time, making religious reform impossible.

The essentiality test reached absurd levels in Ismail Faruqui, whereby land on which the Babri mosque stood was acquired. Instead of settling the issue in favour of the state on the basis of eminent domain, the court went into the question of whether praying at the mosque is an essential Islamic practice. It held that while offering prayers is an essential practice, the offering of such prayers at the mosque is not, unless the place has a particular religious significance in itself. Everyone knows that congregational prayer is central to Islam and mosques are an essential means for this objective.

The SC has consistently accepted that “every person has a fundamental right to entertain such religious beliefs as may be approved by his judgement or conscience”. Therefore, it is an individual right. Moreover, the court should not privilege certain religious practices over others. These are purely religious questions that are best left to the clergy. The essentiality test assumes some practices are central to religion and others incidental. This is not the correct understanding of religion, since all elements and practices together constitute a religion.

The writer is vice chancellor, Nalsar University of Law, Hyderabad

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