August 16, 2016

Religious Freedoms and Reforms

~ By Kanu Agarwal


The following article discusses the important parameters of State control over Hindu religious and charitable institutions. The first part examines the Constitutional provisions with regard to the Freedom of Religion in India and provides a brief outline of the constitutional jurisprudence surrounding the issue and the major principles emanating from it. The second part analyses the degree and extent of State control of Hindu institutions in the backdrop of development of the doctrine of essentiality. The third part particularly deals with the reformative approach of the State and the Courts. The final part summaries the Constitutional position and makes recommendations for the future.

I. Constitutional Provisions

Article 25 of the Constitution of India (“Constitution”)[2] makes the freedom of conscience and the right to profess, practice and propagate religion subject to public order, morality and health and also to the other provisions of Part III of the Constitution. Article 26 of the Constitution[3], confers on every religious denomination, the right to manage their own affairs in matters of religion, and administer properties as per the law. The Constitution, being a verbose document, weaves a complex fabric between religious freedoms and the State’s  power to regulate them. The playground for the exercise of these freedoms is created between the degree of State regulation and the extent of the fundamental right to religious freedom.

The Constituent Assembly, intentionally and precisely, elevated the freedom of conscience and the freedom of religion to a fundamental right. The expression of these freedoms is not limited to just an inward belief in a set of theological or cultural values, but it extends to the outward expression and the acts done in pursuance of profession, practice and propagation of the beliefs. The Constitution consciously omits to create a wall separating the State and religion, in consonance with the positive brand of secularism established through the constitutional setup.

In terms of the simple legal interpretation of the Articles 25 and 26, it is to be noted that Article 25 is a freedom allocated to each and every citizen of India as well as any person residing within the country. To the contrary, the freedoms for acquisition, establishment, management and administration of religious bodies are enjoyed by the various ‘denominations’ or groups or communities within religious folds. Therefore, the very nature of the right guaranteed within these Articles differs and a harmonious construction of the two would be necessary.

Further, the denominational right enshrined under Article 26 puts Hindu temples at two different footings constitutionally, one, being institutions of public character and the other being specialized denominational institutions. This differentiation is further accentuated through the language of Article 25(2)(b) wherein ‘Hindu religious institutions of a public character’ were characterized under a special proviso. Constitutionally, the obvious language and the nature of ‘public’ Hindu temples, makes them subject to a much greater degree of State control and intervention. The Supreme Court’s approach with regard to denominational right has been inconsistent, wherein the State’s attempts at intervening in the functioning of denominational Temples has been held to be constitutional.

Lastly, while freedom of religion is subject to the other provisions of Part III of the Constitution (as per Article 25), the framers consciously omitted the said proviso from Article 26. The nature of freedoms prescribed within the two Articles is different, as Article 25 extends freedom to a person in the capacity of an individual, whereas Article 26 extends freedom to a community/ denomination. For instance, even if the Jain practice of Santhara[4] is held to be essential to the practice of the religion, it might be subject to the fundamental right of life and personal liberty guaranteed under Article 21, whereas the appointment of religious heads as per religious doctrines of a denomination will not be subject to the principles of non-discrimination enshrined under Articles 14, 15 and 16. Unfortunately, the Indian Courts have consistently treated Articles 25 and 26 at par with the provisions of Part III of the Constitution, overlooking the significance of the unequivocal constitutional omission.[5]

II. Degree of State Control

  1. Essentiality Doctrine

The degree of freedom over religious institutions is couched within the construct of Article 26(b), which provides freedom to every denomination ‘to manage its own affairs in the matters of religion’. The phrase ‘in the matters of religion’ has been interpreted by the Courts in a restrictive and linear fashion, resulting in the restriction of the freedom to manage the affairs of a religious institution. To determine the extent of the religious freedoms, the Supreme Court has expounded the theory of the essentiality, i.e. limiting the religious freedoms to matters essential to the practice of the religion/ denomination.

The birth of this test has been somewhat wrongly attributed to a speech by Dr. Ambedkar in the Constituent Assembly:

The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. 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 beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious.[6]

It is to be noted that the above-mentioned excerpt clearly refers to the need to save the secular nature of personal laws and civil rights in the country and does not shed light on the denominational right of religious institutions or the personal affirmative right to free profession of religious practices. Be that as it may, as per the current position of the law, the final arbiter of the division of any activity into religious or secular function would be the Court, wherein it would examine the theological and the cultural basis of such activity within the denomination to ascertain if such function would be essential to the practices of the denomination.

It is to be noted that in some judgments prior to the Shirur Mutt case, the nature of definition of ‘religious practice’ was settled by the tenets of the religion and would not necessarily require a judicial enquiry of the tenets itself. In other jurisdictions, the courts only enquire whether a particular practice is ‘sincerely held’ by its adherent, a question that requires them to go into the adherent’s past behaviour and conduct, but not into the substantive nature of the practice itself. It is to be noted that while the freedom religion can be subject to regulations in most countries, the Indian approach to religious freedoms differs from most modern democracies. In the exercise of the power to regulate, the Indian Courts sit in judgment over the professed views of the adherents of the religion and to determine whether the practice is warranted by the religion or not, essentially carrying out a function which is ostensibly not their core function.[7] The genesis of the American separation of the Church and the State is derived from the Federalist Papers, wherein Madison said that the Constitution of the United States of America had erected a wall demarcating the “City of God” and the “City of Man”. This approach estops the American Courts from taking any approach like the essentiality doctrine to matters concerning the free practice of religion and administration of religious institutions.

The applicability of the essentiality principle to the varied denominations not having a public character is aimed at preserving the distinctive and diverse nature of communities within the Hindu fold. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under Clause (b) of Article 26[8] and the ‘Basic Structure’ doctrine[9]. Therefore, the legislature cannot take away the right of a denomination to manage their own affairs in matters of religion, whereas the right to acquire, own and administer property, which are not matters of religion could be regulated by valid laws. The logical outcome of this position is that all functions, which are seen to be outside the purview of ‘essential’ religious affairs, are deemed to be secular functions amenable to state control. In contrast, in the United States of America[10] and Australia[11], the freedom of religion was declared in absolute terms, and the courts had to evolve exceptions to that freedom, as opposed to the Indian Constitution, which specifically enshrines limits in the exercise of freedoms under Articles 25 and 26.[12]

The Supreme Court, in the Shirur Mutt case, created special conditions for ‘denominations’ with cogent doctrines of establishment, in line with diversity and the complexity of Hindu institutions. Further, as per Article 26(d), it is the fundamental right of a religious denomination or its adherents to administer their properties in accordance with law; and law, therefore, must leave the right of administration to the religious denomination itself, subject to such restrictions and regulations as it might choose to impose. The Indian Courts ascertain the freedoms exercised by every denomination by a thorough analysis and interpretation of the theology of that particular denomination. This unique and somewhat strange function of the Indian Courts is the central differentiating factor with respect to other jurisdictions. Previously, the Court has also extended the independence of the essential functions to the acts done in pursuance of the said essential functions.[13] For instance, if the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day or that the periodical ceremonies should be performed in a certain way, at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, that would constitute religious practice.[14]

2. Reforms and Essentiality

A recurring theme, which enables the State to make law, is the need for social welfare and reform, provided under Article 25(2)(b). The test of essentiality being of judicial origin, also applies to regulate the constitutionality of reform legislations within the religious and cultural sphere. In the Sardar Syedna case[15], the Court had held that Article 25(2), which allowed the State to pass reform legislation, “is intended to save the validity only of those laws which do not invade the basic and essential practices of religion which are guaranteed by the operative portion of Art. 25(1).” This approach not only rendered an Act enacted for social reform under Article 25(2)(b) unconstitutional but also inhibited reform of the community from within by giving legal sanction to excommunication. Such an approach handicaps the freedom of religion and conscience of a person, at an individual level. To make things worse, the Supreme Court held that mere curtailing of the legal rights of an individual, by excommunication, would not make the Act banning such practice a ‘law for social reform’ under Article 25(2)(b). Justice Sinha, in an admirable dissenting judgment in Sardar Syedna case, held that practices that directly impacted a person’s enjoyment of his civil rights that were guaranteed by law, as the power of excommunication, could not be given constitutional protection. It is to be noted that a writ petition was filed in 1986 for the review of the above case wherein the Supreme Court acknowledged Justice Sinha’s dissent and noted that a review may be permissible. The matter was further complicated as the review petition required an order for review by a bench comprising of 7 (seven) judges. The Supreme Court first settled the issue with regards to the review petition and has subsequently struggled to finally reconsider the matter expeditiously[16]. Recently, the Maharashtra legislature has enacted a law prohibiting social boycotts (which are defined in numerous ways, ranging from expulsion from the community, to obstructing regular business and social relations, to obstructing the performance of marriage) within communities. The draft bill specifically prohibits excommunication, which brings the Dawoodi Bohra judgment in contention.

Recently, an issue came up before the Supreme Court in the Sabrimala case with regard to the essential religious beliefs, pertaining to the denominational deity in a Temple. It is alleged that the deity is in his celibate phase and the entry of women within the compound during the said period of celibacy would materially impact the essential feature of such denominational temple. The Kerala High Court has previously upheld the said bar of entry of women between the ages of 10 and 50 stating that they did not constitute a “class” or a “section” of Hindus. The protection provided on the ground that women between the ages of 10 and 50 do not constitute a class or section for the purposes of Article 25(2)(b), seems to rather creative, but constitutionally untenable. The Temple texts provide that women between the ages of 10 and 50 have been grouped together by the temple authorities themselves, on the stated ground that they are likely to disturb the “celibacy” of the deity. The freedom of a denominational temple like Sabrimala with regard to the management and administration of its property should be at a higher footing, and provide much more legitimacy to the rather special nature of the rules surrounding the Temple. This elevation of religious freedoms over and above the constitutional parameters would come in direct conflict with the observations in the Adi Saiva case. Therefore, the question that the Courts need to answer must be, whether the said entry of women contravenes the essential feature of celibacy of the deity to such an extent that it would render it completely irrelevant. Further, the Courts need to understand the complex nature of the Temples in Kerala including the other denominational deities like the Attukal Temple and the Chakkulathukavu Temple, both of which provide special status of women and differentiate. The Courts further need to elaborate on the expanse of the Hindu fold and the many counter balancing and overlapping forces acting within the religious construct of the society or denominations. Differentiation on such grounds, considering the complexity of the Temples in the region, may not necessarily lead to systematic discrimination as mentioned in the language of Article 25(2)(b).

The anti-discriminatory ethos of Indian Constitution in the backdrop of the Ambedkar principles of ‘social justice’ prohibited both the State and communities from treating individuals in discriminatory ways, insofar as that discrimination blocks their access to crucial public goods, whether material or symbolic. The provisions of the Constitution specifically provided protection to laws enacted for social reform, to provide the access of religious and civil rights to all classes of citizens, considering that religion plays a central role in public life in India. It has been insightfully noted[17] that the Supreme Court has constituted “an internal level of reform” by holding that certain regressive practices do not constitute “essential” parts of a religion. This important societal and constitutional function denies certain practices constitutional protection, and also provides the Court with the power to re-characterize religion itself and create new social facts through its holdings. The legislature and the Courts, have felt this need for reform in the Hindu fold, even of the ‘essential tenets’ or ‘sincerely held’ beliefs in numerous cases. It may also be argued that there have been certain positive impacts of these measures but the concurrent curtailment of institutional/ denominational Hindu religious freedoms could have been avoided.

III.       Conclusion

The legislations with regard to reforms must be adjudged at the same constitutional footing and the State must, in true Ambedkarian spirit, endure to eradicate the numerous ‘religiously’ or ‘culturally’ sanctioned evils, which limit the exercise of civil rights of the adherents, across all communities, denominations and religions. The imbalance within seemingly secular sectors of State control has been starkly increasing and the ignorance of the State to reform the practices of other faiths is depriving the communities a valuable opportunity for reform and rejuvenation. While the contours of such reforms may represent a stiff challenge to the legislative competence of the State, the lack of political will has been the main impediment in this regard. Therefore, if a sect/ religion or denomination is to be constitutionally tested by the beliefs of that sect/ religion or denomination and not through consistent constitutional principles, the impression of a perceived bias amongst a set of followers is inevitable.

In India, due to the ever-expanding role of the State in the pre 1991 era, the State exerted an immense willingness to meddle in the affairs of Hindu institutions. The slow tinkering and expanding of the term ‘regulate’ to effectively allow control and administration is reminiscent of the expansive State approach within Indian polity in other spheres. The judicial review of essentially religious practices and the interpretation of religious doctrines have made the Courts, the custodian of religion and religious beliefs. This has also resulted in curtailing the extent of religious freedoms between different religions to different extents, which negatives the very nature of the freedoms guaranteed by Articles 25 and 26.

*The author is an advocate at the Supreme Court of India, New Delhi. The views expressed are his own. 

(This article appeared in India Foundation Journal, May-June 2016 issue.)

[1] This paper is presented at the National Seminar on Hindu Jurisprudence jointly organized by Centre for Constitutional and Legal Studies (CCLS), India Foundation and Indian Council of Philosophical Research on May 16-18, 2016 at India International Centre, New Delhi.

[2] Article 25: Freedom of conscience and free profession, practice and propagation of religion

“(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation I: The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion

Explanation II: In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.”

[3] Article 26: 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.”

[4] The judgment of the Rajasthan High Court in Nikhil Soni v. Union of India & Ors., DBCWP 7414/06, has been stayed and notice has been issued by the Supreme Court in Akhil Bharat Varshiya Digamber Jain Parishad v. Union Of India And Ors., SLP (Civil) CC 15807/2015.

[5] The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005 (“Shirur Mutt”); E.R.J. Swami v. State of Tamil Nadu, AIR 1972 SC 1586; Seshammal and Ors. Etc. Etc. v. State of Tamil Nadu, (1972) 2 SCC 11 (“Seshammal”); Adi Saiva Sivachariyargal Nala Sangam and Ors. v. The Government of Tamil Nadu and Ors., (2016) 2 SCC 725 (“Adi Saiva”).

[6]Speech by Dr. B.R. Ambedkar on 2nd December 1948. Accessed from :

[7] Jesse Cantwell v. State of Connecticut, 84 L Ed 1213 : 310 US 296 (1939); and United States v. Ballard, 88 L Ed 1148 : 322 US 78 (1943).

[8] Shirur Mutt supra.

[9] See His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr., (1973) 4 SCC 225

[10] See the First Amendment to the Constitution of the United State of America.

[11] See Section 166 of the Australian Constitution.

[12] Nambudripad v. State of Madras, (1955) Mad. 356

[13] Shirur Mutt supra

[14] Ibid

[15] Sardar Syedna Taher Saifuddin Saheb v. Bombay, (1962) Supp. 2 S.C.R. 496

[16] Writ Petition (Civil) 740 / 1986

[17] See Gary Jeffrey Jacobsohn, The Wheel of Law: India’s Secularism in Comparative Constitutional Context, Princeton University Press (2005).


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