Essential Religious Practices

Held. Sections 21, 30(2), 31, 55, 56 and 63 to 69 were ultra vires articles 19(1)(f), 25 and 26, and section 76(1) was void because the contribution was a tax and not a fee. The word religion has no rigid definition: "Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic", and its observances "might extend even to matters of food and dress". Rejecting the Attorney-General's argument that all secular activity associated with religion may be regulated, the Court said: "In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself."

Why it matters. Notice what the source says. The reference point is the religion's own doctrines, and the sentence widened protection rather than narrowing it. The tax and fee distinction drawn in the same judgment goes to [Religious Taxation and Religious Instruction].

The turn

Facts. The Durgah Committee, Ajmer v. Syed Hussain Ali, 1961 AIR 1402, 1962 SCR (1) 383, decided 17 March 1961. The Khadims of the tomb of Hazrat Khwaja Moin-ud-din Chishti at Ajmer challenged the Durgah Khwaja Saheb Act 1955, claiming to represent the Chishti Soofies as a religious denomination whose right to manage its affairs and administer the endowment had been taken away. Management had for centuries been vested in Mutawallis appointed by the State.

Held. The contentions were negatived. Article 26 "could not create any rights which the denomination or the section never had". Then came the passage that changed the law, introduced expressly as an incidental note of caution: "even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Art. 26 may have to be carefully scrutinised."

Why it matters. Shirur Mutt asks what the religion's doctrines say. Durgah Committee asks the court to sift a religion's practices for the essential ones and set the rest aside as superstition. That is a different enquiry, it is the one later courts apply, and it was an aside.

The doctrine cutting the other way

Facts. Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, 1962 AIR 853, 1962 SCR Supl. (2) 496, decided 9 January 1962. Section 3 of the Bombay Prevention of Excommunication Act 1949 provided that no excommunication of a member of any community shall be valid or of any effect, and section 2 included the Dawoodi Bohras. The petitioner, the 51st Dai-ul-Mutlaq, religious head of that community, challenged the Act under articles 25 and 26.

Held. By a majority the Act was void. Excommunication by the religious head on religious grounds "formed part of the management of its affairs in matters of religion", so invalidating it infringed article 26(b). On the test: "What is essential part of a religion or what its religious practice has to be judged in the light of its doctrine and such practices as are regarded by the community as a part of its religion must also be included in them." Article 25(2)(b) did not save it: in Ayyangar J.'s words, "laws providing for social welfare and reform" "was not intended to enable the legislature to 'reform' a religion out of existence or identity". Sinha C.J. dissented, holding the Dai also a trustee whose acts touching members' civil rights were justiciable, and the Act, saving an excommunicated man from becoming "virtually an untouchable in his community", within article 25(2)(b).

Why it matters. Students remember the doctrine as a weapon against religion; here it struck down a reforming statute and fixed a limit on article 25(2)(b) that still stands. The dissent states the price: protecting a denomination's power over its members costs the member with least power inside it.

A different question altogether

Facts. Bijoe Emmanuel v. State of Kerala, 1987 AIR 748, 1986 SCR (3) 518, (1986) 3 SCC 615, decided 11 August 1986. Three children belonging to the Jehovah's Witnesses stood respectfully at the school assembly while the National Anthem was sung but did not join in the singing, their faith forbidding it. A commission reported them law abiding; they were expelled on 26 July 1985, and the High Court refused relief.

Held. The appeal was allowed and readmission directed. No law obliges anyone to sing the National Anthem, and standing respectfully without singing is not the offence in section 3 of the Prevention of Insults to National Honour Act. The circulars relied on "have no statutory basis and are mere departmental instructions", so they could not restrict article 19(1)(a) at all. On religion the Court framed the enquiry differently: "The question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. Personal views and reactions are irrelevant."

Why it matters. Nobody asked whether refusing to sing was essential to the religion of the Jehovah's Witnesses. The Court asked about the claimant, not the faith: is the belief sincerely held? That sincerity test answers anyone who says essentiality is forced on the courts by article 25.

The modern case

Facts. Indian Young Lawyers Association v. State of Kerala, decided 28 September 2018 by five judges. Women aged ten to fifty were excluded from the Sabarimala temple by custom, given effect by Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965. The second referred question was whether excluding them "constitutes an essential religious practice under Article 25".

Held. By 4:1 the writ petition was allowed. Devotees of Lord Ayyappa are not a separate religious denomination, having no "tenets peculiar to themselves ... other than those which are common to the Hindu religion", so article 26 was not engaged. The exclusion was not essential: "There has to be unhindered continuity in a practice for it to attain the status of essential practice", and the Devaswom Board had accepted that women of that age group used to visit for the first rice feeding ceremony, so "there seems to be no continuity in the exclusionary practice". Rule 3(b) was ultra vires the 1965 Act. Indu Malhotra J. dissented: the Court "cannot impose its morality or rationality with respect to the form of worship of a deity", and "It is not for the courts to determine which of these practises of a faith are to be struck down, except if they are pernicious, oppressive, or a social evil, like Sati."

Why it matters. Both halves of this chapter are on one page: the majority applies the doctrine and finds a continuity test inside it, the dissent says the enquiry should never have been made. Cite it with care: as [Women, Religion and Personal Law] records, larger questions went to nine judges in 2019.

The criticism, and it is serious

It asks courts a question they are not equipped to answer. A judge decides what a religion regards as essential to itself, on affidavits, with no authority from the faith to say so. Article 25 protects "freedom of conscience", and conscience belongs to the believer.

It rewards antiquity, text and orthodoxy. A court hunting for the core of a faith looks for scripture, for continuity and for what the leadership says, so the practice likeliest to be struck out as an accretion is the recent, the local, or the one held by a minority within the religion. It began as an aside, in a case decided on another ground. And an alternative already exists: Bijoe Emmanuel asked whether the belief was genuinely held, a question evidence can answer without pronouncing on doctrine.

Now the defence, at its strongest. Article 25(2) makes the line unavoidable: if the State may regulate secular activity associated with religious practice, somebody must say which activity is secular, and a court that refuses has handed that to whoever controls the institution. And sincerity tests the honesty of a claimant; it cannot dispose of a claim made on behalf of a community against one of its own members, which is what Sardar Syedna was.

The reconciliation worth writing. Most of the criticism is aimed at the Durgah version, not the Shirur Mutt one. A narrow doctrine that asks only whether the claim is a matter of religion at all, leaving the religion's doctrines to say what it contains, does what article 25(2) requires without making the judge an editor of the faith.

A worked example

A State law requires every place of public worship to admit persons with disabilities and, where the building permits, to install a ramp. A temple trust refuses, saying its texts allow the sanctum to be entered only by those who have fasted and climbed the steps on foot, and that articles 25 and 26 protect it.

Step one, which article? Article 26(b) if the trust is a religious denomination, article 25(1) if not. On Sabarimala it must show tenets peculiar to itself.

Step two, religion or property? A ramp is administration of property, exercisable under 26(d) "in accordance with law". The manner of approaching the deity is a matter of religion. So the ramp is regulable and the approach is the real dispute.

Step three, the threshold. The trust must show that ascending on foot is essential and integral, judged on Shirur Mutt by the doctrines of the religion itself. The State will look, as Sabarimala did, for unhindered continuity.

Step four, if the threshold is crossed. Article 25(1) is still subject "to the other provisions of this Part", so the State may say that excluding disabled worshippers offends the equality guarantee.

Step five, the advice. The trust's best point is not that the practice is essential but that the law regulates a building, not worship. The State's is not that it is unessential but that it never was a practice. Both sides are arguing evidence of custom.

What it does NOT mean

It does not mean an unessential practice is unlawful. It means it is unprotected, so it may be regulated, and may equally be left alone.

It does not mean the court asks whether the practice is sensible. Bijoe Emmanuel is express that personal views and reactions are irrelevant.

It does not mean article 26 gives a denomination whatever it asks. Durgah Committee: it protects rights a denomination has, not rights it never had.

Quick revision

• Shirur Mutt (1954): articles 25 and 26 protect acts done in pursuance of belief, and what is essential is "primarily to be ascertained with reference to the doctrines of that religion itself".
• Durgah Committee (1961): protection confined to essential and integral practices and no other, superstitious accretions outside. An incidental caution that became the test.
• Sardar Syedna (1962): excommunication by the Dai was a matter of religion under article 26(b), and article 25(2)(b) may not reform a religion out of existence. Sinha C.J. dissenting.
• Bijoe Emmanuel (1986): the test applied was sincerity, not essentiality; and the circulars had no statutory force.
• Sabarimala (2018), 4:1: Ayyappa devotees are not a denomination, unbroken continuity is required, Rule 3(b) ultra vires. Indu Malhotra J. dissenting; before nine judges.
• Criticism: a secular court answers a theological question. Defence: article 25(2) makes the line unavoidable.

Test yourself

1. State the doctrine and trace the change in it between Shirur Mutt and Durgah Committee.

2. Why does article 25(2) make some version of this enquiry unavoidable?

3. What test did Bijoe Emmanuel apply, and why does its existence matter to the criticism of the doctrine?

4. In Sardar Syedna the doctrine struck down a reforming statute. Give the majority's reasoning and the dissent.

5. What did Sabarimala hold, how must its authority be qualified today, and what is the strongest case against the doctrine?