(Note: Presenters were Group 6)
Religion, Morality and the State.
Article 25 of the Indian Constitution states that every individual is “equally entitled to freedom of conscience” and has the right “to profess, practice and propagate religion” of one’s choice. The limitation to this falls only if the practice is detrimental to "public order, morality or health." The right to freedom of religion is not an absolute one. As Dr. Ambedkar points out, as opposed to the structure of other fundamental rights, which see the addition of a limitation clause after the clause granting the right; Article 25 is always preceded with its limitation, implying that Article 19 will triumph over it.
Before addressing what the constitution has to say on religion, or what erstwhile judges have interpreted this right to grant, we must stop to ask what religion in India is at all. Is it Individualistic or communitarian, spiritual or textual, intimate or material?
One of the cases we discussed in the beginning of the class was whether having a beard is an essential religious practise. To maintain uniformity, the Air Force has a policy against the growth of hair. While Sikhs are a community, who donot shave their hair and keep long hair. The Haryana High Court stated that keeping long hair is not an essential religious practise. When the case went to Supreme Court, the court stated that for muslims, there is no specific mandate against the cutting of hair and shaving. Essential religious practise are very test driven. We have to protect those ceremonies which are essential religious practises. Essential religious practises has been divided into two parts – religious and secular.
In Europe we see a different notion of secularism than the pluralistic acceptance of religion witnessed in India. For instance, Iceland bans the circumcision even of men; despite citizens who may want to for religious purposes.
An interesting debate that broke out during this discussion was whether the notion of secularism that restricts religious freedom on the basis of morality or public purpose affects only those in the minority. Examples both from India and Europe prove otherwise, wherein for instance, in Catholic Church had to accept the right to divorce; and Hinduism in India accepted the courts’ verdicts on temple entry, who can be a priest, etc.
Now, on judicial interpretations of this right. The first prominent case in this regard was the Lakshmindra Swaminar Case, from 1954, which was minimally intrusive. The case determined who can enter the idol’s inner sanctum, when the temple must be shut to allow the idol to sleep, and so on. The second case, of Ram Prasad Seth (1957) was far more comfortable with interevention. there came a judicial shift that had not been seen before in India. While the question of what would be secular and what would be protected under the scope of religious rights had always been addressed, this was the first time that the court proved to be interventionist into the private religious sphere. Before this, in cases such as Ratilal Panachand Gandhi, the court implemented a less intrusive way of describing religion. Such a shift came with huge consequences in Indian Law.
The year right after the Ram Prasad case, we see Qureshi v State of Bihar, which dealt with the politically charged issue of cow slaughter. This case also proved to be the starting point for the essential practices test.
Understanding the judiciary's role in this- with the Ram Prasad Seth v UP case,
From this, there came a necessity to address what would constitute the essential practices of the religion. It is important to examine whether the judiciary makes reasonable or arbitraryclassifications in this regard. The possible clash with Article 14 is also another consideration to be made, along with other limitations. While weighing this in, by the statutory interpretation of Clause 2 of Article 25, state interventionism is allowed within the jurisdiction. The balancing of this with the actual right to profess religion lies on a thin line.
The Sabarmila Temply Entry Case is a recent judgement that deals with the multifaceted nature of this right. The Sabarmila Temple did not allow the entry of women between the ages of 10 and 50 to enter the temple on the grounds that they are menstruating, which would “pollute” the chambers of the celibate god, who resided in the temple. Further, they said that with the entry of women, came the possibility of their molestation or assault, which this rule sought to avoid. The case was challenged on the grounds that it was not an essential practice of the religion under Article 25; the classification is gender based and arbitrary under Article 14, and lastly, that the fundamental right of a woman here corresponded with the fundamental duty of the government to protect this right. However, the courts held in favour of the Temple; holding that (a) just because the practice was not custom since time immemorial, that did not mean it was not essential; (2) there was no gender based on arbitrary classification, as classification was based on menstruation.
Class discussion on this point discussion how, over here, the dignity of women's life on the basis of her natural cycle is compromised. The casteist concepts of purity and pollution is used as ammunition in this case against the woman by claiming that for "her own physical safety" it is better that she refrains from praying in the temple. Over here, the right of an individual's freedom is compromised along with a directly targeted gender based discrimination. Further, while it may seem like a classification on the basis of menstruation prima facie; it is a gender based classification since only women menstruate.
The examination of our constitutional morality thus becomes relevant. Constitutional morality, which is the set of values and principles enshrined in our constitution, is what should determine the interepretation of such subjective rights. The alternative would see a heavy governmental or judicial bias, insofar as the opinions of the organs of the state would power over the notions that bind us as a nation.
The Presentation is class further examined the following limitations placed upon Article 25 and 26: public order, morality, and public health.
- Public Order
In order to maintain public order, courts have held that forced conversions, or noise pollution is illegal.
- Morality
The presentation involved the trailer of the documentary of “The Holy Wife,” which discussed the plight of Devadasis. Meant to be maids of the gods, these young women, of “lower castes” are not involved in prostitution for the name of religion in India. The documentary highlighted a supposed essential practice of a religion that violates not merely human rights and dignity, but also legitamised illegal acts of rape, assault and murder. The criminalization of prosititution under the Indian Penal Code sought to tackle this, giving us an example of state intervention in religion on the grounds of morality.
(c ) Public Health
The evolution of the state role from patriarchial to welfare oriented brought about the rise in the importance of state guaranteed public health. Now, for instance, starvation for religion purposes, which could amount to suicide, or abetment of suicide is now criminalized. Further, self inflicted torture to attain spiritual ends has also been made illegal.
The last section of the class discussed various facets of the judicial and constitutional morality we see arise over the court of these judgements. An interesting conversation was as to whether the imposition of science on religion was justified- from changing the curriculum of religious educational institutions to a more science centric course; or the use of vaccines despite a religious bias against them. The general consensus in class held this to be justified. Another interesting paradigm discussed was the rights of micro communities, and the protection of the essentials of their rights. This could be a linguistic community, or a small tribal community.
In a country like India, this notion of secularism proves to be a structural pillar that upholds the pluralistic diversity that is in existence. We have always been a communitarian society, and to balance the rather radical right of the individual remains a challenge.
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