India: It is unfortunate that courts have become arbiters of what constitutes true religion (Ronojoy Sen)

The Indian Express

Church And Court
It is unfortunate that courts have become arbiters of what constitutes true religion.

Written by Ronojoy Sen | Published:April 21, 2016

The Supreme Court’s recent observation that the ban on the entry of women, between 10 and 50 years of age, into Kerala’s Sabarimala temple must pass the constitutional test highlights the tension between religious tradition and the reformist impulse of the Constitution. This tension has surfaced whenever the courts have had to judge whether religious traditions or customs should be reformed. This tension is, of course, not restricted to India but often appears in a more acute form because of the court’s historical tendency — backed by Article 25(2) — to intervene in religious matters.

Over the years, the courts have put in place what is known as the “essential practices” test, used to decide a variety of cases. These can be classified under a few heads. First, the court has used this test to decide which religious practices are eligible for constitutional protection. Second, to adjudicate the legitimacy of legislation for managing religious institutions. Finally, to judge the extent of independence that can be enjoyed by religious denominations. The first is particularly relevant for the Sabarimala case, where the temple authorities have argued that the ban on women is part of their religious tradition.

There is a long line of cases in which the courts have stepped in to decide what constitutes religion. In Shirur Mutt, the SC observed that a “religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential… and no outside authority has any jurisdiction to interfere with their decision”. At the same time, the court said that the state can legitimately regulate religious practices when they “run counter to public order, health and morality” and when they are “economic, commercial or political in their character though they are associated with religious practices”.

In the 1950s, in another landmark ruling, the SC denied the plea of the Gowda Saraswath Brahmins to claim exemption from a law allowing Dalits and lower castes to enter the Shri Venkataramana temple. Here the court gave the reformist thrust of Article 25 precedence over the group rights enshrined in Article 26. The competing claims of the freedom of a religious collective and the state’s power to regulate religious practices have, however, continued to haunt the courts.

From the 1960s, the SC circumscribed the religious practices that were guaranteed constitutional protection. In the Durgah Committee case, for instance, it ruled that “practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself”. It added that unless such practices are found to “constitute an essential and integral part of religion”, their claim for protection would have to be carefully scrutinised.

In the Sabarimala case, the court will have to decide whether the ban on women entering the temple is a bona fide religious custom, and if it passes the essential practices test. Indeed, the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, permits the prohibition of women from accessing places of worship where “custom” or “usage” requires it. Like in earlier cases, the SC could decide that the ban does not meet the essential practice test. It could also strike down the rule on the grounds that it discriminates on the basis of gender as well as infringes on a woman’s right to freedom of worship.

Whatever the decision, it is unfortunate that the courts have become the arbiter of what constitutes true religion. Rajeev Dhavan and Fali Nariman have pointed out that the judges have “virtually assumed the theological authority to determine which tenets of faith are ‘essential’ to any faith”. This situation has arisen because the Indian state is the agent for the reform and management of Hinduism and its institutions. It would preferable, as Pratap Bhanu Mehta has noted, if “all communities begin to accept that the arc of moral and social demands bends towards individual freedom, non-discrimination and equality, particularly on the issue of gender”. So long as that does not happen, we are likely to see religious issues being repeatedly taken to court.
The writer is author of ‘Articles of Faith: Religion, Secularism, and the Indian Supreme Court’. He is with the National University of Singapore.