ARTICLE 25 AND ARTICLE 26- A RELIGIOUS DILEMMA

By Shivam Mishra, 3rd Year, Dr. Ram Manohar Lohiya National Law University, Student Editor – Lexstructor

________________________________________________________________________

I.  INTRODUCTION

Professing, practicing, and propagating one’s faith is an entitlement which human community has been conferred with since the very beginning and it has been recognized as an inalienable right of every human being not only on this land but over this tangible world as well and state it ought not to do anything which adversely affects this natural right of human beings”. These words embark on the discussion of the constitution assembly on clause (13) and (14) of the draft constitution document which later became Article 25 and 26 of today’s Indian constitution. These words emphatically signify the sacrosanct nature of the Right to religion which our constitution framers had in their minds and their determination to imbibe this principle in the constitution of India. India is a diverse country housing people of different religions, beliefs, and faiths which make India the most religiously diverse country of the world. To preserve and promote its diversity India has sought to adopt a unique secular approach that is different from the Western concept of secularism. In western countries secularism[1] simply stands for the separation of state and religion whereby the state treats every religion on an equal pedestal and no specific provisions for any particular religion are to be taken by the state.  The state is ought to take no interest in any religion neither in a positive nor in a negative way. [2] While in India, state and religion are not separated. In India State has to respect and protect all the religions and to ensure that no religion gets oppressed. Mere non-action of the state towards any particular religion is not enough, the state has to positively take steps to ensure that all religions and faiths flourish harmoniously and simultaneously in India.  The state can even provide financial assistance to particular religious educational institutions and specific welfare provisions for a particular religion made by the state are allowed. The state is just not permitted to discriminate on any religious grounds nor to hinder anyone propagating, professing, or practicing his religion. 

In today’s context, what was granted by the Constitution as a fundamental right of right to religion to every person has now become contingent upon the Court’s discretionary power. Recently, in its landmark case of Indian young lawyers Association v State of Kerala [(2018) SCC Online SC 1690] commonly known as the ‘Sabrimala case,’ Supreme Court allowed entry of women in the Sabarimala temple.  According to the Court, prohibition on the entry of women in the temple was a violation of their fundamental rights hence was liable to be removed.

Sabrimala Temple which is located at Sabrimala in the Panthanamthitta district of Kerala did not for many years allow women aged from 10-50 years, to enter its premises. The temple is dedicated to Lord Ayaappa deity who according to the followers is of ‘Nastika Brahmachari’ character and entry of women into the temple will change this significant character of the deity which is against their beliefs. This practice was justified by the Kerala High Court in the case of S. Mahendran v The Secretary, Travancore Devaswom Board, Thiruvananthapuram (1991) SCC Online Ker 43 case [3]. Thereafter this practice continued to exist until the contrary judgment was delivered by the Supreme Court while entertaining the PIL against this practice filed by a social activist group-“Indian Young Lawyers Association”. This decision pronounced by the constitutional bench of 5 judges has become a landmark in the history of India with respect to the debate of trade-off between the Right to freedom and the Right to religion.

This paper analyzes the approach taken by the Supreme court in the context of the latest decision of the Supreme Court and several other cases that primarily deal with Article 25 and Article 26. In the latter stage of the paper, the author argues that the question of equality, untouchability, and of any other rights granted under Part III of the constitution should be avoided in matters of religion. In the Sabrimala temple’s latest decision the concept of constitutional morality was imported to prioritize the right to equality over the right to religion. The author criticizes such misapplication of Constitutional Morality doctrine which itself is so ambiguous and vague to be used for the Court’s interpretation. 

This paper starts by analysing how frequent changes made by the courts in the interpretation of Article 25 and Article 26 are changing the characteristics of these rights. These rights have lately seemed to become a grant of the Court’s discretionary powers rather than being the fundamental rights of an individual granted by the Constitution. Further, this paper supports the argument within the context of Sabrimala Temple’s decision that contentions related to matters of religion should be seen within the ambit of the right to religion. Particularly Article 26(b) which should never be read with other rights of Part III of the constitution as such interpretation deprives an individual of his right to religion. 

II. FREQUENT CHANGES IN THE INTERPRETATION OF ARTICLE 25 AND ARTICLE 26

Article 25 grants every person in India, “freedom of conscience and free profession, practice and propagation of religion” but with certain riders such as provisions of part III, Public order, Morality, and health. Article 25 is an individual right which an individual can exercise but only up to the extent that no other rights of any person get affected by it.

While Article 26 grants fundamental rights to manage its own affairs in matters of religion to every religious denomination but subjects to only public order, morality, and health. It means liberty under Article 26 is wider than Article 25. Article 26 unlike Article 25 is not restricted by Fundamental rights and in case of conflict between Article 26 and Fundamental rights, Article 26 shall prevail over the latter. However, certain other conditions have been laid down by the Court under Article 26 which are necessary to be followed to get protection under this article of the constitution. These conditions are as follows-

 A.) RELIGIOUS DENOMINATION

Article 26 has granted to every religious denomination but, here the question arises what constitutes a religious denomination? As through this, every religion wants to exercise its practices without any interruption. Shall it include every religious entity within its ambit of religious denomination? 

Our constitution does not provide any definition/interpretation of religious denomination so the onus was on to the judiciary to define it. Judiciary has come up with three conditions as an essential test of determining religious denomination-

  1. Common faith 
  2. Common organization 
  3. Distinctive name [4]

Now, in the Sabarimala case, there was a common faith as a voice against this restriction was never raised by the women who were prohibited after the 1991 decision of the Kerala High Court in S. Mahendran v The Secretary, Travancore Devaswom Board, Thiruvananthapuram  (1991) SCC Online Ker 43 case, Both men and women were inclined towards the ban of women’s entry into the temple. Further, there was also a campaign in which the majority of women appealed for the continuity of this practice. This marked the establishment of the first condition. Religion is the opium of the people, it means what people’s opinions about religion should prevail  not what the judiciary or other religion people think.  There was a board for the management of the Sabarimala temple and this marks the establishment of the second condition. Followers of Lord Ayappaa could easily grant a distinctive name as “Lord Ayyappa followers” to form the religious denomination by fulfilling the third condition.  As the Supreme Court in several cases has granted the distinctive name based on the followers and their spiritual well- being to the followers of Ramanuja [5], the followers of Madhwacharya,the followers of Vallabha [6], the Chistia Sufis, and the followers of Sri Ramakrishna[7] and the reason given was that they share a common belief, faith of a distinctive feature of them which was also present in the Sabrimalas case but here in this case the Supreme Court never took this in its consideration. This is not the only case where despite fulfilling all essential conditions,  religious denomination status has not been given by the Court, earlier, in S.P. Mittal v. Union of India (2003) AIR SC 4225 where Aurobindo teachings followers asked the Court to give the status of the religious denomination were refused as the Court made more provisions to grant the status. To mark it more elaborately, it is necessary to understand these essential conditional. Common faith as said by the Supreme Court[8] should be distinct or what has been said in Nallor Marthandam Vellalar and Ors. v. Commissioner, Hindu Religious and Charitable Endowments & Ors.(1983) 1 SCC 51 the case should be peculiar to themselves (followers) which results in the binding of followers of that religion or what we can say unit that religion, Lord Ayyappa being “Nastika Brahmachari” has the peculiar feature.Thus, the first condition was fulfilled by the followers of Lord Ayyappa.

One of the reasons given by the Court about not-fulfilling of the second essential condition, common organization, was that it’s a state-managed board[9] which manages the temple management along with many more temples located nearby the Sabarimala temple, this could be answered by the bare reading of second condition itself, common organization. What, this phrase tries to explain is that a temple for which demands of getting the status of a religious denomination is being asked would have only one organization to manage its secular affairs, its management not any other. In fact, what is necessary here is to find the relation between temple and board and not to delve into the working of that board other than the management of concern temple. This was also the case in the Sabarimala case where only one board was there to deal with all the management of the temple, the Courts needs to take a liberal approach in deciding religious denomination with which the third condition could easily be filled if the Court took a liberal approach towards the religion of Lord Ayyappa followers.  These reasons, giving evidence of the discretionary power of the Court which is now prevailing over an individual and denomination‘s fundamental right.

B.) ESSENTIAL RELIGIOUS PRACTICE

Article 26 has divided into four sub-sections. Article 26 (c)  and (d) can be interfered by the legislature but under Article 26(b) religious denomination enjoys complete autonomy which cannot be restricted, altered, or changed by any legislature, rule, or law. But, now this right has also been curtailed by the Court as now this autonomy and protection extends only up to an essential religious practice[10] but again what constitutes an essential practice would be decided by the Court itself. 

This term essential practice was coined by the Supreme Court in its 7 judges bench case of, The Commissioner, Hindu Religious Endowment Board, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Math  (1954) AIR SC 282 here on account of some mismanagement in the math an act was passed by the government named, Madras Hindu Religious and Charitable Endowment Board 1951. Through this act, the government authorized itself to manage the affairs of the math to a certain extent which was opposed by the then Mahant of math, and further, the constitutional validity of this act was challenged. During its proceedings, the Court first explained the meaning of the phrase, “Matter of religion”  enshrined under Article 26 and  Article 25 and for this reliance was made on the observance stated by the Justice Latham in the case of Adelaide Co. of Jehovah’s Witnesses Inc v Commonwealth  (1943) 67 CLR 116 an Australian case in which it was said that matters of religion not only means to follow the belief or faith of the religion but also act done in pursuance of the belief, rituals, faith, and worship which opened the scope of essential religious practices. Furthermore, the Supreme Court stated that what is an essential religious practice has to ascertain with reference to the tenets of religion itself. But, no specific guidelines were provided to what constitutes an essential practice. With the passage of time and cases by cases, the Supreme Court specified these guidelines without which practice would not be an essential religious practice.

Although the Court has given some methods to test whether a practice is essential or not, again the fulfillment of these conditions solely depends upon the discretion of the Court. As while delving into the validity of a practice that whether it is an essential religious practice or not, the Court can come up with a new test. This uncertainty about what counts an essential religious practice results in deteriorating the impact of the right to religion.

Tests which are laid down by the court to check whether a practice would be an essential practice – if by changing the practice identity of the religion will also be changed.[11] Now in Sabarimala case ‘Nastika Brahmachari’ was the identity of the Lord Ayyappa which would be changed if the entry of women was allowed as they cast lustful eyes on the deity according to their followers. Despite this Court refused to accept this religious practice as an essential religious practice. In the controversial case of M.Ismail Faruqui v. Union of India (1995) AIR SC 605,  the Court said that a place would be an essential part of such practices if it has any particular significance regarding its religion which was apparently in the concerned case nevertheless, it was never taken into the consideration by the Supreme Court.

One more test laid by the Court to check the validity was whether the concerned practice is a part of the religious text of that religion[12] if yes, and then it would be considered as an essential religious practice. This was the only test criteria which were taken into consideration by the Supreme Court as it was in support of their pre-decided judgment but based on these assumptions Sati Pratha, dowry, caste discrimination and many more immoral practices which are abolished should be continued as they found their legs in the religious text of Hindus. This clearly making a statement that simply a practice that not found or found its legs in the religious text could not be a sole criterion to check the validity of practice whether it is an essential religious practice or not.

One more test laid down by the Court was whether that religion was formed on the concerned practice, in the Sabarimala case it was the Brahmachari characteristics of the Lord Ayyappa which distinguishes it from other temples and forms the basis of it which makes it an essential practice nevertheless The Supreme Court refused to accept it as an essential practice. 

 In the Sabarimala case, it was said by the judges that no practice can an essential religious practice if it is against the constitutional goal. But does not freedom of religion through Article 25 and Article 26 fall within the ambit of constitutional goal?  Not allowing a practice the status of an essential religious practice that fulfills all pre-conditions laid down by the Court is against the constitution goals. As Supreme Court in its 5 judges bench itself held that “no tampering with the religious rights can be countenanced so long as the Constitution stands as it is today The Bench observed that any attempt to do so would be not only an act of breach of faith but would be constitutionally impermissible and liable to be struck down by the Court.”[13]

 One more principle laid down by this Court[14] was That essential practice test should always be seen as to whether it would be regarded as an essential practice by that community or sect and will be based on the conscience of evidence given by them, while in the Sabarimala case it was always regarded as an essential religious practice by the followers as there was never any contention raised by the concerned religion women not even in this case nor in earlier 1991 S.Mahendran case  but this was never considered by the Supreme Court.     

This essential religious practice concept helps the judiciary to use its discretionary over religions matter. Article 26 (b) provides protection, to every religious denomination, of the practices which it is continuing for several years, Article 26(b) also grants liberty to every denomination to decide who can enter into the temple or who cannot this also extends up to putting restriction on entry. [15] During its judgment, the Supreme Court clearly set aside these decisions taken by the Court itself on the account of its discretionary power. Further also, this exclusionary practice of women not found by the Court as an essential religious practice while ex-communication on religious grounds was upheld by this Court valid by saying that it helps to maintain the strength of the religion. [16]

Religion is a matter of faith and belief of a section, a class, or a community, and judging it with the judicious view will result in nothing but in chaos. As Justice Chinappa Reddy said that what seems to be superstitious, unnecessary may an essential belief or faith of religion. Therefore, the Courts while checking the validity of practice should see it from a religious perspective, not from a judicious perspective. But, The Court has completely ignored this view in the Sabarimala case as judges emphasized more on the judicial justice than the religious justice which is not only unjust with people who want to exercise their fundamental right under Article 25 and 26 but also against the aim which constitution framers wanted to achieve by introducing these articles. 

III. MISPLACED INTERPRETATION OF CONSTITUTIONAL MORALITY

Justice Chandrachud along with Chief Justice Deepak Mishra and Justice Ashok Khanwilkar, while writing their judgment in the Sabarimala case equated the concept of the Public morality with Constitutional morality on the ground of making an analogy with the word, ‘The People of India’  used in the Preamble and ‘public’ in Article 25 and 26. The question is when a fundamental right of a denomination is wiggling on the judicial pendulum this far-fetched analogy should be used? Certainly not, constitution morality is an undefined term of the constitution. It was used by Dr.B.R.Ambedkar during constitution assembly debates in the context of rule of law and for equality concept which is now enshrined in the form of Article14, 15, 16 but the Supreme Court in the last few years frequently has used this phrase.  Whether it is the case of Navtej Singh Johar v Union of India (2018) 1 SCC 791 case , Suresh Kumar Koushal & Anr. vs Naz Foundation and Ors (2014) 1 SCC 1, but, here use of constitution Morality is justified as ultimately the Court was judging the approach of the rule of law about the third gender which is rightly in the context of rule for which this phrase was coined. 

Here, in the Sabarimala case the Court misplaced this concept as this restriction should never be seen from the perspective of rule of law which makes it restriction based on sex, this should be seen within the scope of religious right Article 26 and  Article 25, in fact, Article 26 is not even subject to other provisions of Part III as it has not prescribed in the Article 26 unlike Article 25 which explicitly clear the intention of constitutional drafter to keep the other rights of part III as well as any other right away from Article 26 and this can also be evidenced from the removal of  ‘subject to general law’ phrase from earlier proposed Clause 14 ( later become Article 26) in constitution assembly debate (Volume III 1st May, 1947) which completely neglected by the Supreme Court by using this analogy. This restriction was never a restriction based on the sex but a restriction based on religious beliefs of a denomination in which deprived restriction itself agreed, hence neither Article 14 nor the concept of constitutional morality needed to be considered.

 IV.    CONFLICTING WITH ITS EARLIER DECISIONS 

Supreme Court in many cases has itself justified the limited restriction on the entry of certain categories of people in various temples. Let it be Sardar Syedna Taher Saifuddin Saheb v. State of Bombay (1958) AIR SC 253. whereby a constitutional bench upheld the legality of the ex-communication practice and struck down the legislation purporting to ban this practice.  In Sri Venkataramana Devaru & Ors v. State of Mysore & Ors. (1958) AIR SC 255, the Court unambiguously held that certain kinds of restrictions imposed on the entry in the temple are valid and are not per se unconstitutional. In a plethora of cases of the early 1900s Indian judiciary has provided similar dictas justifying the restriction on entry into a temple.[17] This again hints us to our hypothesis that the latest decision of the Supreme Court in Sabrimala Temple reflects modernism rather than the doctrinal or legal justification. 

In a couple of cases, the Court has said that a secular judge is bound to accept by the belief of that concerned community not by its own belief [18], while in the Sabarimala case belief of followers was almost unanimous against the entry of women in the temple, which seems to have been ignored completely in the decision.   

Supreme Court itself, in a Sardar Syedna Case stated that the identity of the religion could not be changed based on social welfare and reform. While here in Sabarimala case 5 judges bench on account of providing social equality, a component of the social welfare, allowed the entry of women in the temple which is enough to change the Brahmachari identity associated with this temple and the religion since historic times.

In India customs play a vital role constitutionally as well as ordinarily for the people of India. Courts give huge importance to the practices which owing to their immemorial continuity have become customary practices would be safeguarded as stated by the Supreme Court that the right under Article 26 safeguards and guarantees the continuance of a right which such denomination or section had.  The involvement of the Supreme Court in this case itself conflicted with its decisions.  Instead of these religious cases, the Supreme Court went on to look at the case of an equality of men and women and other fundamental right conflicting cases, there could be no denying from the concept of the rule of law or equality concept between men and women. But religious content, particularly in the Sabarimala case, should find its answer within the ambit of Article 25 and 26.  

                                                          V.   CONCLUSION

In India, different-different religions people have been residing since time immemorial and to protect them from any injustice and to provide them the liberty the constitution of India was drafted, and the responsibility to protect them was on to the Supreme Court. But, the Court, in turn, has provided the safeguard to these rights at the extent of its own discretion which is not only against the constitution but also against the spirit of the constitution drafter. Judiciary is one of the major instruments for any country to make its daily life routine peaceful for every citizen. It becomes more important in countries like India where Judiciary always finds an upper hand in all matters.  This also marks the difficulty for the Court to exercise its duty as their one decision decides the faith of several citizens, hence, while deciding any matter Court needs to determine its approach and should change it accordingly. Judiciary was formed for the people of India, there is no such code that it has to follow and therefore it has to change accordingly and the introduction of Public Interest Litigation is a perfect example of this. Article 25 and Article 26 were introduced to protect, venerated not only religion but also the practice done in pursuance of its religion therefore not only the religion but its practices should equally be venerated not only by the people but by the judiciary also. But, in the Sabarimala case, what started as a constitutional question of a right to religion ended up being the result of endeavor of the Indian judiciary to establish India as women empowered country by exercising its discretion power on the matters of religion while prevailing over the fundamental intention of the constitutional drafter. 

Disclaimer : All rights reserved to Lexstructor. Views are personal.


References

[1] First Amendment of US Constitution, 1791 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

[2]  DONALD E. SMITH, INDIA AS A SECULAR STATE (Princeton University Press,1st ed. 2011).

[3] Richa Taneja, The Story of Sabarimala origin beliefs and controversy on women entry , NDTV(Oct 17,2018). https://www.ndtv.com/kerala-news/the-story-of-sabarimala-origin-beliefs-and-controversy-on-women-entry-193347 7;

Correspondent, Sabarimala temple: India court questions women entry ban, BBC News(Jan 11, 2016 ). https://www.bbc.com/news/world-south-asia-35278562; Correspondent, Sabarimala: The Indian god who bars women from his temple, BBC News(Oct 19, 2018). https://www.bbc.com/news/world-asia-india-45901014.

[4]  The Commissioner, hindu religious endowment board, Madras v. Sri Lakshmindra thirtha Swamiar of Sri Shirur Math,  (1954) AIR SC 282; S.P. Mittal v.Union of India, (1983) 1 SCC 51; Sri Venkataramana Devaru and ors v. State of Mysore and ors., (1958) AIR SC 255

[5]  The Commissioner, hindu religious endowment board, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur math, (1954) AIR SC 282

[6]  Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, (1963) AIR SC 1638

[7]  Bramchari Sidheswar Shai v. State of West Bengal, (1955) 4 SCC 646

[8] N Ramalingayya v. The Commissioner of Charitable and Hindu Religious Institutions and Endowments, (1971) AIR AP 320

[9] Swapna Raghu Sanand, Sabarimala Temple Case: Why ‘Religious Denomination’ is key to women’s entry debate in Supreme Court,  Financial Express (July 24, 2018), https://www.financialexpress.com/india-news/sabarimala-temple-case-why-religious-denomination-is-key-to-womens-entry-debate-in-supreme-Court/1256427/

[10] Dr. R.R. Varu v. State of Andhra Pradesh, (1970) AIR SC 181

[11]  Commissioner of Police v. Acharya Jagdishwaranand Avadhuta, (2014) 12 SCC 70

[12] Tilkayat Sri Govindlalji Maharaj v. State of Rajasthan, (1963) AIR SC 1638

[13] T Krishnan v. Guruvayoor Devaswom Managing  Committee, (1978) AIR  Ker 68.

[14] Supra Note 12

[15]  Sri Venkataramana Devaru and Ors  v. State of Mysore and ors, (1958) AIR SC 255

[16] Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, (1958) AIR SC 253

[17] Venkatachalapathi v. Subbarayudu, (1890) 13 ILR Mad 293

[18] Ratilal Panachand Gandhi v. State of Bombay, (1954) SCR 1035, Jamshedji v. Soonabai,(1909) 33 Bom 122, Veerabhadran Chettiar v. E.V. Ramaswamy Naicker, (1959) SCR 1211, Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615.

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