A comparative study between India and the United States of America
Taniya Malik, Ph.D. Scholar, Faculty of Law, University of Delhi
Points to remember
- 1 Introduction: the importance of Freedom of Religion and Secularism
- 2 Position in the United States of America
- 3 Position in India
- 4 The Indian Supreme Court and Secularism
- 5 Comparison and Conclusion
Introduction: the importance of Freedom of Religion and Secularism
Religion has been a powerful social factor in all phases of human history and in all parts of the human world. A global survey recently conducted by TNS, a leading group of information providers, reports that an overwhelming majority of over six billion inhabitants of the earth today are faith-oriented and religious minded. As per this report, Africa with 91% of its people being religious minded is on the top, followed by Latin America and the Middle East. Country-wise, the two top positions in respect of religiosity are occupied by the Philippines and India – 90% and 87% respectively of their citizens having a religious way of life.
Religious pluralism is India’s past, present and future. Throughout its history India has observed the principle of equality of all religion and of their followers. Even when the hereditary rulers belonged to a dynasty professing a particular religion, they did not impose their religion on others and allowed the followers of all religions to freely profess and practice their own respective faiths. There might have been some aberrations but generally this tradition always prevailed. This age old tradition was inherited by the country from its past at the time of independence and found reflection in the constitution, which was enforced two years later.
Before we speak any further on the subject of religion and secularism in India, the first question we must address is: What is Secularism? The word “secular” is among the richest of all words in its range of meaning. The concise oxford dictionary shows that the adjective secular means” “concerned with the affairs of this world, wordly not sacred, not monastic, not ecclesiastical, temporal, profane, lay.” The word “secular” according to the Encyclopedia Brittanica means: “non-spiritual, having no concern with religion or spiritual matters.” The process and movement towards secularization has certain antecedents both in the world at large and in India. Taking the overall development into account, one has to remember that secularism developed as a philosophy in reaction to the hold of religion on state. George Holyoake, an English academician, is regarded as the father of secularism who started propagating the movement in 1846 and laid down its principles in his books Principles of Secularism and The Origin and the Nature of Secularism. The movement of secularism arose out of the desire to separate religion and state. It is important to point out here that the concept of secularism is broader than freedom of religion. According to Donald Smith, the working definition of secularism is as follows:
The secular state is a state which guarantees the individual and the corporate freedom of religion, deals with the individual as a citizen irrespective of his religion, is not constitutionally connected to a particular religion nor does it seek to promote or interfere with religion. It contains three sets of relationships:
- Religion and the individual – i.e. freedom of religion
- The state and the individual – i.e. citizenship
- The state and religion – i.e. separation of state and religion1.
In India the movement towards secularization had its roots in the efforts to bridge the gulf between the Hindus and the Muslims so as to evolve a nation. It was felt that only through secularism could India evolve itself into a meaningful entity, particularly, in terms of fighting against the British2. In view of the communal riots which preceded and followed the partition of the country, secularism became an article of faith with our leaders who wanted to shape the destiny of India along secular lines. In the Indian context, one has to remember that the content of secularism stems out of this major concern. Then again in the Indian context, one has to analyse secularism in terms of the desire of Modernization and reformation of the Indian society. The Indian society was from many centuries plagued by several evil social practices which had become a part of the Hindu system. The oppressive caste system, practice of sati, child marriage, unequal status of women etc. were few of the challenges before the framers of the constitution makers which had to be overcome to achieve overall development. Also secularism has been regarded as the sine qua non of economic development, industrialization an overall development in favor of rationality. These are few of the factors which led to adoption of secularism in the Indian way of life.
Position in the United States of America
In the United States, freedom of religion is a constitutionally guaranteed right provided in the religion clauses of the First Amendment. Freedom of religion is also closely associated with separation of church and state, a concept advocated by Thomas Jefferson. The United States Constitution addresses the issue of religion in two places: in the First Amendment, and the Article VI prohibition on religious tests as a condition for holding public office. The First Amendment prohibits the federal government from making a law “respecting an establishment of religion, or prohibiting the free exercise thereof…” This provision was later expanded to state and local governments, through the Incorporation of the Fourteenth Amendment.
The First Amendment
In the United States, the religious civil liberties are guaranteed by the First Amendment to the United States Constitution:
“ Congress shall make no law respecting the 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. ”
The “Establishment Clause” stating that “Congress shall make no law respecting an establishment of religion“, is generally read to prohibit the Federal government from establishing a national church (“religion“) or excessively involving itself in religion, particularly to the benefit of one religion over another. In 1802 President Thomas Jefferson wrote a letter in which he mentioned the need to maintain “a wall of separation” between church and state. Establishment Clause cases have adopted this language. They stand for the idea that religion and government must remain separate. Following the ratification of the Fourteenth Amendment to the United States Constitution and through the doctrine of incorporation, this restriction is held to be applicable to state governments as well.
Keeping government and religion separate obviously means that government may not declare an official religion, such as the Church of England. It also means that government may not interfere in religious business. For example, in Watson v. Jones,3the Court ruled that a dispute within the Presbyterian Church could not be resolved in the courts, but only by church officials. In Kedroff v. St. Nicholas Cathedral,4which involved the Russian Orthodox Church, the Court said the federal government could not interfere even if church authority was being exercised by a foreign country that was hostile to the United States.
The more difficult Establishment Clause cases involve government assistance or approval of religion. These cases usually involve public and private schools or governmental holiday displays.
School prayer, for instance, has been a subject of heated debate in the United States. Polls suggest that most Americans want some form of prayer to be allowed in public schools. In Engel v. Vitale,5however, the Supreme Court said the Establishment Clause prevents public schools from using even a nondenominational prayer, one that does not come from a specific religion. Clearly, then, public schools also may not have readings from Bibles or other religious texts.
Public school curricula also have been the subject of Establishment Clause cases. In Epperson v. Arkansas,6the Supreme Court considered a state law that outlawed the teaching of evolution, the scientific theory that humans descended from monkey-like ancestors. The Court said prohibiting the teaching of evolution violated the Establishment Clause because it was designed to promote creationism, a religious belief that humans were created directly by God. As of 2000, states continued to wrestle with laws requiring schools to teach creationism, evolution, and both or neither.
Financial aid to schools also creates Establishment Clause controversies. In Everson v. Board of Education,7the Court said government cannot pass laws that “aid one religion, aid all religions, or prefer one religion over another.” In Everson, however, the Court approved a state law that provided bus money to parents of children attending all schools, including private Catholic schools. The Court said because the law helped children get to school on public buses, it benefited education, not religion. Eventually the Court said that while the government may not aid religion, it also may deny to religious organizations commonly available public services, such as those related to health and safety.
This confusion led the Court in Lemon v. Kurtzman8to adopt a three-part test for determining when a law violates the Establishment Clause. Under the Lemon test, a law is valid if it:
- has a secular, or non-religious, purpose;
- has a main effect that neither advances nor restricts religion; and
- does not foster excessive entanglement, or mixing, between religion and government.
The case involved two state laws: one permitting the state to “purchase” services in secular fields from religious schools, and the other permitting the state to pay a percentage of the salaries of private school teachers, including teachers in religious institutions. The Supreme Court found that the government was “excessively entangled” with religion, and invalidated the statutes in question. However later, the Lemon test was found by the new justices to be too inflexible and even “hostile” toward religion. Accommodation of some religious activities was no longer considered equivalent to endorsement. The test became only selectively applied to particular cases.
A perspective came to dominate: Just because government may not support religion through preferential treatment, as held in Wallace v. Jaffree,9such neutrality does not imply an absolute prohibition. Churches and practitioners of religion could not be denied commonly available public services, such as those related to public health and safety, normally available to all. In Westside Community Board of Education v. Mergens10the Court upheld the 1984 federal Equal Access Act by allowing secondary school students to hold religious club meetings on public school property during non-instructional time as long as the facilities were also available to other secular student club activities. The key distinction was that school employees could not take a active role in religious club meetings except to ensure safety. The neutrality issue surfaced again in Rosenberger v. University of Virginia11in which the Court held that school funding support of a campus religious-oriented newspaper did not violate the Establishment Clause since the funding program was otherwise neutrally applied to all school organizations . In fact, withholding such funds would actually violate the Constitution’s Free Speech Clause.
The “Free Exercise Clause” states that Congress cannot “prohibit the free exercise” of religious practices. The Supreme Court of the United States has consistently held, however, that the right to free exercise of religion is not absolute. For example, in the 1800s, some of the members of The Church of Jesus Christ of Latter-day Saints traditionally practiced polygamy, yet in Reynolds v. United States,12the Supreme Court upheld the criminal conviction of one of these members under a federal law banning polygamy. The Court reasoned that to do otherwise would set precedent for a full range of religious beliefs including those as extreme as human sacrifice. The Court stated that “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.” For example, if one were part of a religion that believed in vampirism, the First Amendment would protect one’s belief in vampirism, but not the practice. This principle has similarly been applied to those attempting to claim religious exemptions for smoking cannabis or, as in the case of Employment Division v. Smith,13the use of the hallucinogen peyote. Currently, peyote and ayahuasca are allowed by legal precedent if used in a religious ceremony; though cannabis is not. In the United States, then, to say that government may not prohibit the free exercise of religion neither means nor should mean that government may not prohibit any religious practice whatsoever. Government may prohibit some religious practices—practices that threaten one or more interests that government may legitimately protect. In banning, or in otherwise impeding, by regulating, a religious practice, however, government may not discriminate against religion— either against one or more religions or, at the limit, against all religion
The affirmation or denial of specific religious beliefs had, in the past, been made into qualifications for public office; however, the United States Constitution states that the inauguration of a President may include an “affirmation” of the faithful execution of his duties rather than an “oath” to that effect — this provision was included in order to respect the religious prerogatives of the Quakers, a Protestant Christian denomination that declines the swearing of oaths. The U.S. Constitution also provides that “No religious Test shall ever be required as a Qualification of any Office or public Trust under the United States.”14As of 2007, seven states have language included in their constitutions that requires state office-holders to have particular religious beliefs. Some of these beliefs (or oaths) were historically required of jurors and witnesses in court. Even though they are still on the books, these provisions have been rendered unenforceable by U.S. Supreme Court decisions.
Position in India
Constitutionally speaking, India is a secular country and has no state religion. However, it has developed over the years its own unique concept of secularism that is fundamentally different from the parallel American concept of secularism requiring complete separation of church and state, as also from the French ideal of lacite – described as ‘an essential compromise whereby religion is relegated entirely to the private sphere and has no space in public life whatsoever.’ Despite the clear incorporation of all the basic principles of secularism into the various provisions of the Constitution when originally enacted, its preamble did not then include the word secular in the short description of the country which it called SOVEREIGN DEMOCRATIC REPUBLIC. This was not an inadvertent omission but a well-calculated decision meant to avoid any misgiving that India was to adopt any of the western notions of a secular state. 25 years later – by which time India’s own concept of secularism had been fully established through judicial decision and state practice – the Preamble to the Constitution of India amended by the Constitution (Forty-second Amendment) Act, 1976 to include the word ‘secular’ along with ‘socialist’, to declare India to be a ‘SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC15.’
The Part III of the Indian Constitution dealing with the fundamental rights, including those concerning religion ,were prompted by concern for the liberty, dignity and well being of the individual. Even the freedom of religion was guaranteed in this secular state not out of concern for religions but out of concern for the individual, as an aspect of the general scheme of his liberty, and as incidental to his well-being. In this scheme of liberty there is guaranteed to the individual not only freedom of religion, but where religion tended to become a menace to his liberty and dignity, there is also guaranteed to him freedom from religion; because without the latter the former guarantee alone will be incomplete, and even meaningless.
This principle of giving primacy to the individual, placing him before and above religion, and recognizing freedom of religion and of religious denominations as incidental only to his well being and to the general scheme of his liberty, is a distinguishing feature of the Indian Secularism16. All these three elements of the constitutional philosophy are enshrined in articles 25 and 26 of the constitution.
Article 25 and 26, the principle articles on the freedom of religion reads as follows:
- 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 (2), the 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.
- Freedom to manage religious affairs.
Subject to public order, morality and health, every religious denomination or any section thereof shall have the right
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law
It may be noticed in the first place that article 25 and its ancillary article 26, open with the recitation of the limitations to which the fundamental rights enshrined in these articles are subject. The general scheme of the constitution, followed in all other articles of Part III without exception, is to state the right first, thus giving it a primary place, and to mention the limitations only subsequently. A perusal of the public interests to which the fundamental right embodied in Article 25 is subjected will reveal the significance in this departure. These include not only the usual categories of “public order, morality and health” but also the unique category, found again in no other article namely, “the other provisions of this Part”.17The rights guaranteed in article 25, especially those relating to practice and propagation of religion are susceptible of being so exercised by persons as to encroach upon the various fundamental rights of others. The Constitution would not permit this to be done even in the name of state; much less in the name of religion. The inclusion of other fundamental rights as on e of the limitations on the freedom of religion indicate the salutary principle of our constitutional philosophy in this regard, namely, the principle of giving primacy to the individual, placing him before and above religion, and recognizing freedom of religion as only incidental to his well being and liberty.
Secondly, it may be noticed that clause 1 of article 25 does not read simply, “all persons are entitled to freedom of conscience and the right freely to profess, practise and propagate religion.” Instead, the guarantee is that, “all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.” There can be no doubt that the prominence thus given to the principle of equality in the key provision of the article brings out the attitude of state neutrality in matters of religion without importing the “wall of separation” doctrine of the United States. Aid, facilties, protection and even encouragement given by state to religion will not offend this provision as long as the state adhered to the principle of equality – or to that extent, neutrality – among the various religious groups and communities.
Next it may be noticed that the four areas covered by the right in clause (10 of article 25 have been placed in a deliberate ordering. Freedom of conscience, which in its very nature is illimitable and not susceptible to governmental restriction, is mentioned at the head. And , among the rights that follow, the first to be mentioned again – the right to profess religion – is the one least likely to affect secular interests or rights of others. Next follows the right to “practice” religion, which obviously has a wide significance to pubic order, morality, health and civil rights of others. And logically, last comes the right to propagate religion and to proselytize right in regard to which conflicts with competing public interests will be necessarily more pronounced.
Sub-clause (a) of clause (2) of article 25 at once recognizes the inevitability of such interplay and asserts the overriding power of the state to regulate and restrict over the entire area where the secular and the religious are found to commingle. This power to regulate and restrict referred to in the sub-clause is a general, plenary power and should not be confused with the power in regard to “public-order, health, morality and other provisions of this Part” to which the right enshrined in clause (1) is already subject. Since “practice” of religion happens to be practically the only part of religion susceptible of state control, this sub-clause makes the state practically supreme over religion. It recognizes and asserts power of the state to regulate any economic, financial, political or other secular activity without stopping where such activity begins to touch or commingle with religion. State jurisdiction exists as long as this secular element persists, and is not affected by the presence of the religious element that may be found to be enmeshed with it.
It may be pointed out that while recognizing the far-reaching and paramount authority of the state, and subject to it, the Constitution enunciates with equal clarity the principle of tolerance, the third strand of our constitutional philosophy towards religion. Thus, article 26 guarantees to every religious denomination and section thereof the right to establish and maintain religious and charitable institutions; the right to manage its own affairs in the matters of religion; the right to own and acquire immoveable property and the right to administer such property in accordance with law. Religious minorities have been given by article 30 (1) the right to establish and administer educational institutions of their choice18, thus securing to religious groups expressly in the constitutional text what they obtained through litigation in the US. As to aids, the constitution not only contemplates and tolerates these being awarded to denominational schools, but even admonishes the state not to discriminate in making the awards against any institution on the ground of its denominational management. The question of religious instruction has also been rescued out of the vagaries of litigation and settled by direct provisions in the text. Article 28 (1) categorically lays down that: “No religion instruction shall be provided in any educational institution wholly maintained out of State funds.” Educational institutions partially aided or merely recognized by the state are free to provide religious instruction to their pupils, but they too may not make such instruction compulsory for any of them. Further the Indian Constitution only forbids taxation for the benefits of any particular religion vide Article 2719. Non-discriminatory taxes for the benefit of all religions would be perfectly constitutional.
These are then the constitutional provisions regarding secularism in India. We may now examine the judicial treatment they have hitherto received.
The Indian Supreme Court and Secularism
This study is divided into three sections. It examines how the Supreme Court has defined religion, what qualifies as permissible religious practice, and the demarcation of the boundaries of a religious denomination. It traces the development of what legal scholars describe as the “essential practices” doctrine.
The Supreme Court and its judges see themselves as upholders of secularism. This comes out both in court rulings and out-of-court writings of judges. However, it remains unclear how the Court defines secularism. The most detailed explication of the Court’s views on secularism is available in the S. R. Bommai v. Union of India case20. In this case, the Supreme Court, while upholding the presidential proclamation dismissing three BJP-ruled state governments in the wake of the Babri demolition, declared “secularism” as a “basic structure” of the Constitution. Seven judges on the nine-judge bench also took the opportunity to spell out their views on secularism. There are a few important themes that emerge from the Court’s description of secularism:
- firstly, the idea that the religious can be neatly separated from the secular and that religion must be kept apart from the affairs of the state;
- secondly, the notion of religion as it “ought to be” in contrast to the actual practice of religion; and
- lastly, secularism as an essential component of democracy as well as of national unity and integration.
All these issues are central to any study of Court rulings on religion and the homogenizing and rationalizing thrust of the Court with regard to religion, especially Hinduism.
It is important to examine first how the courts have attempted to define religion with respect to the Constitution; and second how the Supreme Court, in adjudicating cases pertaining to Hinduism, has drawn a distinction between the sacred and the secular. The courts are frequently asked to decide what constitutes an “essential part of religion”, and therefore off-limits for state intervention and what is “extraneous or unessential,” and therefore an area in which it is permissible for the state to interfere. Courts in other secular polities are confronted by similar questions. For instance, the American courts have had occasion to decide on religious practices that run contrary to general laws. However, the U.S. Supreme Court has not sat in judgment on the authenticity of religious beliefs and practices. The usual stance of the U.S. Supreme Court has been to reject pleas for making exceptions to religious practices that run counter to secular state legislation.
The essential practices doctrine in India can plausibly be traced to the so-called Father of the Indian Constitution, Dr. B. R. Ambedkar, and to his famous statement in the Constituent Assembly during debates on the proposed codification of Hindu law: “The religious conceptions in this country are so vast that they cover every aspect of life from birth to death. . . .There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend it beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious”21. The most striking aspect of the essential practices doctrine is the constant attempt by the Court to fashion religion in the way a modernist state would like it to be rather than to accept religion as represented by its practitioners.
The essential practices test has been used by the Court to decide a variety of cases. These can be classified under a few headings. First, the Court has made recourse to this test to decide which religious practices are eligible for constitutional protection. Second, the Court has used the test to adjudicate the legitimacy of legislation for managing religious institutions. Finally, the Court has employed this doctrine to judge the extent of independence that can be enjoyed by religious denominations.
After Indian independence, this test was first articulated in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshimindra Thirtha Swamiar of Sri Shirur Mutt22also known as the Shirur Mutt case. It is important to consider this case in some detail since it has become obligatory to cite Shirur Mutt case in most cases related to reform of Hindu religious institutions. Not only was the meaning of religion, as protected by the Constitution, enunciated in Shirur Mutt, but also guidelines as to who or what qualified as a religious denomination were set forth. In Shirur Mutt, the petitioner, the superior or mathadhipati (also referred to as mahant ) of the Shirur Mutt monastery, challenged the Madras Hindu Religious and Charitable Endowments (HRCE) Act of 1951 on the principal ground that it infringed Article 26 of the Constitution. Before dealing with the provisions of the Act, the court asked a central question: “Where is the line to be drawn between what are matters of religion and what are not?”. To come up with a working definition of religion, Justice B. K. Mukherjea, drew on examples from the United States and Australia. He rejected the definition of religion offered by the U.S. Supreme Court in Davis v. Beason:23“The term religion has reference to one’s views of his relation to his Creator and to the obligations they impose of reverence for His Being and character and of obedience to His will. It is often confounded with cultus of form or worship of a particular sect, but is distinguishable from the latter”. The Court pointed out the inadequacy of this definition in the Indian context by noting that there are major religions like Buddhism or Jainism “which do not believe in God or in any Intelligent First Cause”. Instead, Mukherjea drew on the Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth24judgment in Australia in which the High Court said the Constitution not only protected “liberty of opinion” but also “acts done in pursuance of religious belief as part of religion.” Collapsing the belief-practice dichotomy, Justice Mukherjea observed, “A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well-being, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion . . .”.
It should be mentioned here that this definition of religion, which included rituals and ceremonies as “integral,” was significantly different from the definition offered by the Bombay High Court in an earlier case. In Ratilal Panachand v. State of Bombay,25where the constitutional validity of the Bombay Public Trusts Act of 1950 had been challenged, Chief Justice M. C. Chagla observed that “whatever binds a man to his own conscience and whatever moral and ethical principles regulate the lives of men, that alone can constitute religion as understood in the Constitution.” In the same judgment, Chagla stated, “Essentially religion is a matter of personal faith and belief, of personal relation of an individual with what he regards as his Maker or his Creator or the higher agency which he believes regulates the existence of sentient beings and the forces of the Universe”. The definition from Shirur Mutt cited earlier shows that the high court’s narrow definition of religion was rejected by Mukherjea. Subsequently, Chagla’s views in the Ratilal judgment, too, were overturned by Mukherjea when the case came up for hearing before the Supreme Court26.
According to Mukherjea, the American and Australian Constitutions did not impose any limitation on the right to freedom of religion. It was the American and Australian courts that introduced the limitations on the grounds of “morality, order and social protection” (ibid.: 434). Mukherjea, however, believed that the Indian Constitution was an improvement on other Constitutions since it clearly laid out what could be regarded as religion: “Our Constitution-makers, however, have embodied the limitations which have been evolved by judicial pronouncements in America or Australia in the Constitution itself and the language of Articles 25 and 26 is sufficiently clear to enable us to determine without the aid of foreign authorities as to what matters come within the purview of religion and what do not”.
According to the Court, “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself ”. This “essential part” of religion is protected by the Constitution: “Under Article 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters”. However, 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” (ibid.: 432).
Shirur Mutt was also a landmark judgment because it validated a major portion of the Madras HRCE Act of 1951, which was the first state legislation to put into place an elaborate regulatory mechanism for Hindu temples and maths. Several other states followed suit with similar legislation, and they were also taken to court, but Shirur Mutt has remained the model for the Court. In Shirur Mutt judgment the Court did recognize that a mathadhipati was not a “mere manager,” because he “has not only duties to discharge in connection with the endowment but he has a personal interest of a beneficial character which is sanctioned by custom. . . .”. The Court further said that since the mathadhipati was the head of a spiritual fraternity, he could not be treated as “a servant under a State department.” With regard to the powers of the government bureaucrats to interfere in affairs of the math, the Court struck down certain provisions, including the right of unrestricted entry into religious institutions for the Commissioner of Hindu Religious Endowments or his subordinates. The Court said, “It is well known that there could be no such thing as an unregulated and unrestricted right of entry into a public temple or religious institution for persons who are not connected with the spiritual functions thereof .” The Court also struck down a section that required a head of a religious institution to be guided by bureaucrats on how to spend the funds of the institution. However, it is noteworthy that the Court in large measure gave its approval to the elaborate apparatus of state control of Hindu temples and religious institutions.
The primary contribution of Shirur Mutt to the legal discourse on religion was the recognition that “protection under Articles 25 and 26 was not limited to matters of doctrine or belief only but extended to acts done in pursuance of religion and therefore contained guarantees for rituals, observances, ceremonies and modes of worship”. Another important principle enunciated by Justice Mukherjea was the “complete autonomy” granted to religious denominations to decide which religious practices were essential for them. Mukherjea reiterated this point in Ratilal, which was decided by the Supreme Court the same year as Shirur Mutt: “Religious practices or performances of acts in pursuance of religious beliefs are as much a part of religion as faith or belief in particular doctrines. . . . No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate”27.
Finally, Shirur Mutt is a landmark case because it contained a deeply contradictory trend. On the one hand, the judgment is celebrated for widening the definition of religion to include rituals and practices. On the other hand, it sanctioned an elaborate regulatory regime for religious institutions. This anomaly has been pointed out by P.K. Tripathi: “In the final analysis, therefore, articles 25 and 26 do not emerge from the judgment in the Swamiar [Shirur Mutt] case as very effective weapons of attack on social legislation affecting the management of religious institutions”28.
The contradictions between traditional texts and the reformist values expressed in the Constitution would become more apparent in Sri Venkatramana Devaru v. State of Mysore.29One reason why this case is interesting is that the Court had to weigh the religious freedom of a group against the right of the state to reform a religious practice. But what is more directly relevant to this analysis is the way the Court tackled the primary subject of the case—unrestricted right of entry of Harijans (untouchables) into a temple founded by Brahmins—by seeking evidence from the Hindu scriptures. The issue before the Court was the applicability of the Madras Temple Entry Authorisation Act, which was intended to remove the bar on Harijans from entering the Sri Venkatramana temple founded by the Gowda Saraswath Brahmins. The original suit was filed by the trustees of the temple in 1949, a year before the Constitution came into effect. Originally, the appellants claimed that the temple was a private one and therefore exempt from the Act. But once the Constitution was in force, the appellants also claimed that the temple was in addition a denominational one and hence entitled to protection under Article 26. Justice Venkatarama Aiyar, speaking for the Court, presented the primary question thus: “The substantial question of law is whether the right of a religious denomination to manage its own affairs in matters of religion guaranteed under Art. 26 (b) is subject to and can be controlled by, a law protected by Art. 25(2)(b), throwing open a Hindu temple to all classes and sections of Hindus”. The Court accepted the claims of the appellants that the Sri Venkatramana temple was indeed a “denominational temple founded for the benefit of the Gowda Saraswath Brahmins”. The Court proceeded to consider whether the Gowda Saraswaths, exercising the right of a religious denomination under Article 26(b), were “entitled to exclude other communities from entering into it for worship on the ground that it was a matter of religion”. This immediately brought into play the essential practices doctrine to determine “whether exclusion of a person from entering into a temple for worship is a matter of religion according to the Hindu Ceremonial Law”. Here it must be mentioned that the solicitor-general of India, C. K. Daphtary, who had appeared in the case for the state, had argued that exclusion of persons from temples was not a matter of religion.
Unlike in Saraswathi Ammal and later cases, the Court did not resort to modernist rhetoric. Instead it relied on a scriptural exegesis and case law to examine the practice of excluding Harijans from worshipping in temples, which can be regarded as one of the practices defining untouchability. Justice Aiyar concluded: “Thus, under the ceremonial law pertaining to temples, who are entitled to enter them for worship and where they are entitled to stand and worship and how the worship is to be conducted are all matters of religion.” The Court, however, did not bring into play Article 17, which abolishes untouchability. The Court opined that Article 17 did not apply to denominational temples. This meant that, according to the Court, the right of the Gowda Saraswaths to exclude persons from worshipping in the temple guaranteed by Article 26(b) clashed with the right of the state to open public temples to all Hindus under Article 25(2)(b). In Aiyar’s words, the case involved “two provisions of equal authority, neither of them being subject to the other”. The Court found a way out of this impasse by giving Article 25(2)(b) precedence over Article 26 by pointing out that the language of Article 25(2)(b) implied the limitations were applicable to all Hindu religious institutions, including denominational ones. The Court referred to this as the rule of “harmonious construction” and sought to ameliorate the ruling by stating that the state’s right to intervene in religious institutions was subject to limitations. In a minor concession to the appellants, the Court said “that during certain ceremonies on special occasions it was only members of the Gowda Saraswath Brahmin community that had the right to take part therein, and that on those occasions, all other persons would be excluded”.
The Devaru ruling, in theory, followed the essential practices doctrine of Shirur Mutt by accepting that religion encompassed rituals and practices. However, the other cardinal principle laid out in Shirur Mutt regarding the “autonomy” of a religious denomination to decide what ceremonies are essential was breached. Devaru clearly illustrated that the Court was to decide what practices are essential to any religion. What was striking about Devaru was the way it referred to Hindu scriptures to justify the exclusion of lower castes from the temple during special ceremonies when it could have easily referred to other discourses within Hinduism, notably the Bhakti tradition, to argue the opposite case. Instead the Court strategically used a “harmonious construction” to find a way out of its dilemma. The Court’s role in deciding what was “essential” to any religion would be enhanced in subsequent cases.
Redefining Essential Practice
Two cases in the early 1960s would substantially reformulate the essential practices doctrine. The first of these cases was Durgah Committee v. Hussain Ali.30In this case, the Sufi Muslim khadims of the shrine of Moinuddin Chishti in Ajmer challenged the Durgah Khawaja Saheb Act of 1955, which took away the khadims’ right to manage the properties of the Durgah and to receive offerings from pilgrims. Among other things, the khadims contended that the Act abridged their rights as Muslims belonging to the Sufi Chishtia order. The khadims maintained that their fundamental rights guaranteed by several constitutional provisions, including Articles 25 and 26, had been violated. Unlike Justice Aiyar in Devaru, Justice Gajendragadkar did not make any reference to the scriptures. Instead, he skillfully constructed a “secular” history of the Ajmer shrine and concluded that the administration of the shrine “had always been in the hands of the official appointed by the State”. The Court, however, conceded that the Chishtia sect could be regarded as a religious denomination. But this did not eventually have any impact on the Court’s decision, which upheld the validity of the Durgah Khawaja Saheb Act and dismissed the constitutional challenges to the Act. In doing so, Gajendragadkar issued a “note of caution” that would not only highlight the role of the Court in deciding what was an “essential and integral” part of religion but also make a distinction for the first time between “superstitious beliefs” and “religious practice.”
He noted that:
“Whilst we are dealing with this point it may not be out of place incidentally to strike a note of caution and observe that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art. 26.… in other words, the protection must be confined to such religious practices as are an essential and integral part of it and no other.”
This extraordinary statement by the Court pushed the essential practices doctrine in a new direction. The Court was not only going to play the role of the gatekeeper as to what qualified as religion, but now it was also taking up the role of sifting superstition from “real” religion. This redefinition of the essential practices test and the enhanced role of the Court in rationalizing religion would be articulated by Gajendragadkar in landmark cases that were decided soon after Durgah Committee. This line of thinking would reach its culmination in Shastri Yagnapurushdasji v. Muldas, which was yet another case involving a religious group—this time the Satsangis—seeking protection from the Bombay Harijan Temple Entry Act. Unlike some of the denominations discussed earlier, the Satsangis claimed the status of a separate religion as followers of Swaminarayan. In his judgment, Gajendragadkar said, “It may be conceded that the genesis of the suit is the genuine apprehension entertained by the appellants, but as often happens in these matters the said apprehension is founded on superstition, ignorance and complete misunderstanding of the true teachings of Hindu religion and of the real significance of the tenets and philosophy taught by Swaminarayan himself ”31.
Although Durgah Committee represents the dominant trend, there were differences of opinion on the bench about the reformist and rationalist thrust of the Court. Saifuddin Saheb v. State of Bombay32illustrated the split in the Court on how far the judiciary should interfere in and reform religion. It must be noted that the justices did not disagree on the essential practices doctrine, but they did disagree on the extent to which it should be applied. In Saifuddin, the Bombay Prevention of Excommunication Act of 1949 had been challenged by the Dai-ul-Mutlaq, who was the religious head of the Dawoodi Bohra community. The majority judgment delivered by Justice K. C. Dasgupta declared the Act unconstitutional by holding that “excommunication cannot but be held to be for the purpose of maintaining the strength of the religion.” In a concurring judgment, Justice N. R. Ayyangar wrote, “The power of excommunication for the purpose of ensuring the preservation of the community, has therefore prime significance in the religious life of every member of the group.” However, in a strong dissent, Chief Justice B. P. Sinha pointed out that even if excommunication was a matter of religion, the Act would still be valid, since it was in the interest of “public welfare”. Sinha, like Gajendragadkar, was confident of separating “pure” religious practices from those that fell within the “secular” realm. Sinha argued that the Dai’s right to excommunicate affected the “civil rights of the members of the community,” and on this ground he argued for upholding the Bombay Act.
This series of rulings in the early 1960s firmly established the principle that it was the Court’s task to ascertain what constituted religious doctrine and practice. The Gajendragadkar rulings went further and specified that even practices that can be accepted as religious might be classified as superstition or irrational. Some scholars point out that redefinition of the essential practices doctrine was partly fuelled by fears that Devaru and Saifuddin had widened the scope of religion in the public sphere and consequently impeded social reform.
Essential Practice Entrenched
The role of the Court in determining what constitutes religion and essential religious practice has remained unhampered over the years. The most prominent effect of this doctrine has been the widening net of state regulation over places of worship. Another significant effect has been the marked disinclination of the Court to accept more recent religious groups as “proper” religions or even religious denominations. Consequently, the religious practices of these groups have not been able to pass the essential practices test. Of course, given the all encompassing definition of Hinduism in Yagnapurushdasji, it is unlikely any sect within Hinduism is ever going to get the court’s approval as a separate religion. This was quite clearly illustrated in the case of the Ramakrishna Mission, which was deemed a “religious minority” (i.e., given separate religion status) by the Calcutta High Court, only to have it changed to religious denomination status by the Supreme Court33.
The two cases from the 1980s in which the Court had to make a decision on the claim of an established group for religious denomination status and had to decide whether a religious practice was essential or not. The first case involved the followers of Sri Aurobindo, and the second concerned the group known as Ananda Margis. In S. P. Mittal v. Union of India,34the legitimacy of the Auroville (Emergency Provisions) Act of 1980 was challenged. One of the questions before the Court was whether the Aurobindo Society qualified as a religious denomination and hence came under the protection of Article 26. After discussing the meaning of religion, and quoting extensively from Aurobindo’s writings as well as secondary sources, Justice R. B. Misra, writing for the majority, ruled “there is no room for doubt that neither the Society nor Auroville constitutes a religious denomination and the teachings of Sri Aurobindo represented only his philosophy and not a religion”.
A year after the Supreme Court ruled that Shri Aurobindo was not a religious teacher, the Court decided that the Ananda Margis was a religious denomination. However, in Jagadishwaranand v. Police Commissioner, Calcutta,35the Court refused to accept the tandava dance as an essential practice of the Ananda Margis. Writing for the Court, Justice Ranganath Misra reasoned, “Ananda Marga as a religious order is of recent origin and tandava dance as a part of religious rites of that order is still more recent. It is doubtful as to whether in such circumstances tandava dance can be taken as an essential religious rite of the Ananda Margis”.
That was not the end of the story of the Ananda Margis. In March 2004 the Supreme Court again took up the issue and further narrowed the scope of essential practices to mean the foundational “core” of a religion. The majority judgment said, “The essential part of a religion means the core belief upon which a religion is founded and those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts of practices that the superstructure of religion is built. Without which, a religion will be no religion”36.
Comparison and Conclusion
The framers of the Indian Constitution shared with the Americans the basic ideology that the state should not interfere with matters which fall essentially within the domain of the religion nor should the state promote or support any particular religion or discriminate in favour of or against any particular religion. In US the establishment clause in the first amendment to the US Constitution has been graphically described as creating a wall of separation between the Church and State. In Everson v Board of Education37the US Supreme Court explained the concept of the separation of the Church and the State in these words:
“The ‘establishment of religion‘ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State’.”
However, the doctrine of the wall of separation between the Church and State does not deny the relevance of religion in the life of an individual but insists that the Church and the State function in different spheres and the state should not have anything to do with the state at all.
It appears that the concept of secularism which has evolved in the US has an underlying assumption of anti-thesis between temporal and spiritual power and provides for the functioning of the State unfettered by the influence of religion in matters pertaining to the domain of the State, though it does recognize that the religion may have a functionto discharge in the lives of the citizens and gives liberty to the Church to discharge those functions.
The Indian Constitution has not accepted the doctrine of wall of separation between religion and State. The Constitution framers undoubtedly held the view that the State should neither sponsor nor favour any particular religion and should treat all religions with tolerance and equality but at the same time they were skeptical of the Establishment Clause which would take the wall of separation between the religion and the State to the extreme where it might border on hostility. Moreover, as men of wisdom, they could not ignore Indian social experience in matters of religion. They knew, left to itself, religion could permit orthodox men to burn widows alive on the piers of their husbands. They were aware that there were many evils in the social lives of the people supported by religion. They realized that asking the state to keep its hands off religion would amount to giving constitutional protection to social injustice, exploitation and cruelty in the name of religion.
- Smith, Donald Eugene, India as a Secular State (Princeton, 1963) on Pg. 4 [↩]
- Damle, Y.B., Process of Secularization in ed. By Sharma, G.S. of Indian Law Institute, “Secularism: Its Implications for Law and Life in India”, Central Electric Press, Delhi (1966). [↩]
- 80 U.S. (13 Wall.) 679 (1871). [↩]
- 344 U.S. 94 (1952). [↩]
- 370 U.S. 421 (1962). [↩]
- 393 U.S. 97 (1968). [↩]
- 330 U.S. 1 (1947). [↩]
- 403 U.S. 602 (1971). [↩]
- 472 U.S. 38 (1985). [↩]
- 496 U.S. 226 (1990). [↩]
- 515 U.S. 819 (1995). [↩]
- 98 U.S. 145 (1878). [↩]
- 494 U.S. 872 (1990). [↩]
- United States Constitution, Article IV, Paragraph 3 : “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.” [↩]
- Mahmood, Tahir, Laws of India on Religion and religious Affairs, Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2008 on Pg. 22 [↩]
- Tripathi, P.K., Secularism and Judicial Review, in ed. By Sharma, G.S. of Indian Law Institute, “Secularism: Its Implications for Law and Life in India”, Central Electric Press, Delhi (1966) on Pg. 171 [↩]
- Id. at Pg. 173 [↩]
- Article 30. Right of minorities to establish and administer educational institutions.- (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. [(1A) In making any law providing for the compulsory acquisition of any property of any educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.] (2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. [↩]
- Article 27. Freedom as to payment of taxes for promotion of any particular religion : No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. [↩]
- AIR 1994 SC 1918 [↩]
- Constituent Assembly Debates VII: 781 [↩]
- 1954 SCR 1005 [↩]
- 133 U.S. 333 (1890). [↩]
-  67 CLR 116 [↩]
- AIR 1953 Bom. 242 [↩]
- 1954 S.C.A. 548 [↩]
- 1954 S.C.A. 548 [↩]
- Tripathi, P.K., Secularism and Judicial Review, in ed. By Sharma, G.S. of Indian Law Institute, “Secularism: Its Implications for Law and Life in India”, Central Electric Press, Delhi (1966) on Pg. 178 [↩]
- AIR 1958 SC 255 [↩]
- AIR 1961 SC 1402 [↩]
- AIR 1966 SC 1135 [↩]
- AIR 1962 SC 853 [↩]
- Bramchari Sidheswar Shai & Ors.etc. V State of West Bengal etc, 1995 AIR 2089 [↩]
- AIR 1983 SC 1 [↩]
- AIR 1984 SC 51 [↩]
- The Commissioner of Police v Acharya Jagdishwarananda Avadhuta, 2004 12 SCC 782 [↩]
- 330 U.S. 1 (1947). [↩]