Constitutional Morality And Religious Practices

In the recent Sabarimala judgment, one of the ‘principles’ used by the honourable judges was that of ‘Constitutional morality’ to decide that the ancient practice of restricting women of a certain age from entering the Sri Ayyappa temple at Sabarimala was unconstitutional. The conclusion drawn was that the rights under the Constitution that were related to religion and religious practices were subject to passing the test of ‘Constitutional morality’.

Although majority of us remain incapable (yet) of understanding what the term ‘Constitutional morality’ is, the natural assumption is that the honourable Supreme Court has a firm grip on the concept and is unambiguous and consistent about it.

In this regard, let us look at the opinion of a few of the judgements with respect to the interplay between Constitutional morality and religious practices.

In the Sabarimala judgment itself – Indian Young Lawyers Association vs The State Of Kerala – delivered in September 2018 –

(I) At least 3 of the honourable judges have held that Constitutional morality reigned supreme over religious rights.

However, honourable Justice Indu Malhotra, in her dissenting judgment has touched upon this topic and held a different opinion.

11.6. Constitutional Morality in a pluralistic society and secular polity would reflect that the followers of various sects have the freedom to practise their faith in accordance with the tenets of their religion. It is irrelevant whether the practise is rational or logical. Notions of rationality cannot be invoked in matters of religion by courts. 11.7. The followers of this denomination, or sect, as the case may be, submit that the worshippers of this deity in Sabarimala Temple even individually have the right to practise and profess their religion under Article 25(1) in accordance with the tenets of their faith, which is protected as a Fundamental Right.

11.8. Equality and non-discrimination are certainly one facet of Constitutional Morality. However, the concept of equality and non- discrimination in matters of religion cannot be viewed in isolation. Under our Constitutional scheme, a balance is required to be struck between the principles of equality and non-discrimination on the one hand, and the protection of the cherished liberties of faith, belief, and worship guaranteed by Articles 25 and 26 to persons belonging to all religions in a secular polity, on the other hand. Constitutional morality requires the harmonisation or balancing of all such rights, to ensure that the religious beliefs of none are obliterated or undermined.

The honourable Judge then concludes as follows.

Constitutional Morality in a secular polity would imply the harmonisation of the Fundamental Rights, which include the right of every individual, religious denomination, or sect, to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practise is rational or logical.

(II) The conclusion is therefore that the meaning of Constitutional morality is in fact harmonisation of fundamental rights, with none being greater or lesser.

In the Triple Talaq judgment – Shayara Bano vs Union Of India – delivered in August 2017 (just a little over a year ago) – the honourable CJI Justice J S Khehar and honourable Justice Abdul Nazeer addressed the following question posed as part of the petition (quote directly from judgment)

One of the issues canvassed on behalf of the petitioners, which was spearheaded by the learned Attorney General for India, was on the ground, that the constitutional validity of the practice of ‘talaq-e-biddat’ – triple talaq, was in breach of constitutional morality.

After a long discussion that involved citing several previous judgements and Constitutional Assembly debates, the honourable judges arrived at the following conclusion.

172. There can be no doubt, that the ‘personal law’ has been elevated to the stature of a fundamental right in the Constitution. And as such, ‘personal law’ is enforceable as it is. All constitutional Courts, are the constitutional guardians of all the Fundamental Rights (– included in Part III of the Constitution). It is therefore the constitutional duty of all Courts to protect, preserve and enforce, all fundamental rights, and not the other way around. It is judicially unthinkable for a Court, to accept any prayer to declare as unconstitutional (-or unacceptable in law), for any reason or logic, what the Constitution declares as a fundamental right. Because, in accepting the prayer(s), this Court would be denying the rights expressly protected under Article 25.

Readers can refer to the judgement cited and confirm that although the context was “personal law” the discussion was very much about the interplay between Article 25 (freedom of practise of religion) and Constitutional morality.

They concluded as below.

174. The prayer made to this Court by those representing the petitioners’ cause, on the ground that the practice of ‘talaq-e-biddat’ is violative of the concept of constitutional morality cannot be acceded to, and is accordingly declined.

The conclusion therefore was that the rights under Article 25 are fundamental rights and anything covered under the same cannot be tested against Constitutional morality.

In the same judgment, Justice Kurian Joseph observes as follows.

Under Article 25 (2) of the Constitution of India, the State is also granted power to make law in two contingencies notwithstanding the freedom granted under Article 25(1). Article 25 (2) states that “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.” Except to the above extent, the freedom of religion under the Constitution of India is absolute and on this point, I am in full agreement with the learned Chief Justice.

The other two honourable judges have not commented on the question regarding Constitutional morality and religious practices, although the petitioners had raised this question. One conclusion to draw would be that they held no opinion on this matter, or that it was not needed given that they were able to arrive at their decision without having to address this question. The other conclusion would be that these two honourable judges also concurred (on this question) with the opinion of the CJI and other two brother judges.

(III) In any case, a majority of judges in the triple talaq judgment held that religious rights supersede Constitutional morality.

From (I), (II) and (III) above, we notice that within a matter of 13 months, three different interpretations of the question of Constitutional morality vs religious practices have been held.

a) Constitutional morality weighs greater than religious fundamental rights

b) Constitutional morality is all about harmonising all fundamental rights, including religious.

c) Constitutional morality cannot be acceded to matters concerning religious fundamental rights.

In the nation like ours, where religious issues continue to dominate public life, many more issues are likely to come up where religious rights face a test against other fundamental rights. Perhaps it would be a good idea for a larger bench of the Supreme Court to sit and arrive at a unanimous principle on the question of ‘Constitutional morality vs religious rights’. Because it is natural that there will be differences when it comes to application of any principle (whether it applies in a particular case or not, for e.g.). However, there must not be any ambiguity at all, about what the principle itself is.

 

Article 25 and Religious Practices

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

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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

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While Indians 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 to two sources for the answer:

1. 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?
2. Did the jurisprudence of this country in the early years of the Republic actually interpret Article 25 to classify practices as essential or otherwise?

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 religion encoded 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)

You will 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 ‘freedom of religious worship’.

This draft document got sent to the Minorities sub-committee of the Constituent Assembly which deliberated in detail and sent back a modified version of the right. This new version – a third modification, 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’. The Chairman of the Committee, while introducing this clause (16 – in the draft) mentioned 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.

K M Munshi: 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 phenomenon and not something that is reflected in ancient books of Hinduism.

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.

K M Panikkar: ……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:

Dr SPM: 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 lead 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.

Ujjal Singh:…..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.

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 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 was:

“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) 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.

c) 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 usage of a passing comment in 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 allowing traditional rituals, customs and practices the protection of the State. A follow-up ‘Freedom of Religion’ Act as demanded in the Hindu Charter will set right this anomaly.

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