Article 25 merely protects the freedom to practise rituals, ceremonies, etc. which are an integral part of a religion as observed by Supreme Court in John Vallamattom and another v. Union of India[1]. While saying so, the Court ruled that a disposition towards making gift for charitable or religious purpose can be designated as a pious act of a person, but the same cannot be said to be an integral part of any religion.
Role of essential practices to a particular religion
The role of essential practices to a particular religion has been well demonstrated by Lord Halsbury in Free Church of Scotland v. Overtoun[2] wherein it was observed:
“In the absence of conformity to essentials, the denomination would not be an entity cemented into solidity by harmonious uniformity of opinion, it would be a mere incongruous heap of, as it were, grains of sand, thrown together without being united, each of these intellectual and isolated grains differing from every other, and the whole forming a but nominally united while really unconnected mass; fraught with nothing but internal dissimilitude, and mutual and reciprocal contradiction and dissension.”
Shirur Mutt Case
Supreme Court, in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005, for the first time, held that what constitutes an essential part of a religion will be ascertained with reference to the tenets and doctrines of that religion itself. The Court had opined thus:
“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.”
In Mohd. Hanif Quareshi v. State of Bihar[3], Supreme Court rejected the argument of the petitioner that sacrifice of cow on Bakr-id was an essential practice of Mohammedan religion and ruled that it could be prohibited by the State under Clause 2(a) of Article 25.
Similarly, in State of West Bengal and others v. Ashutosh Lahiri and others[4], Supreme Court, while approving the judgment of the High Court, observed that the State of West Bengal had wrongly invoked Section 12 of the West Bengal Animal Slaughter Control Act, 1950 on the ground that exemption of slaughtering healthy cows was required to be given for the Muslim community. While holding so, the Court opined thus:
“…before the State can exercise the exemption power under Section 12 in connection with slaughter of any healthy animal covered by the Act, it must be shown that such exemption is necessary to be granted for sub-serving an essential religious, medicinal or research purpose. If granting of such exemption is not essential or necessary for effectuating such a purpose no such exemption can be granted so as to by-pass the thrust of the main provisions of the Act.”
Durgah Committee, Ajmer and others v. Syed Hussain Ali and others
In Durgah Committee, Ajmer and others v. Syed Hussain Ali and others[5], the Court, although speaking in the context of Article 26, warned that some practices, though religious, may have sprung from merely superstitious beliefs and may, in that sense, be extraneous and unessential accretions to religion itself and unless such practices are found to constitute an essential and integral part of a religion, their claim for protection as essential practices may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of the religion and no other.
The Court, in this case, has excluded such practices from protection which, though may have acquired the characteristic of religious practices, are found, on careful scrutiny, to be an outcome of some superstitious beliefs which may render them unessential and not an integral part of the religion.
Ananda Marga case
In Acharya Jagadishwarananda Avadhuta and others v. Commissioner of Police, Calcutta (1983) 4 SCC 522, popularly known as the first Ananda Marga case, Supreme Court held that Tandav dance in processions or at public places by the Ananda Margis carrying lethal weapons and human skulls was not an essential religious rite of the followers of Ananda Marga and, therefore, the order under Section 144 Cr.PC. prohibiting such processions in the interest of public order and morality was not violative of the rights of the Ananda Marga denomination under Articles 25 and 26 of the Constitution more so when the order under Section 144 Cr.PC. did not completely ban the processions or gatherings at public places but only prohibited carrying of daggers, trishuls and skulls which posed danger to public order and morality.
N. Adithayan v. Travancore Devaswom Board and others
In N. Adithayan v. Travancore Devaswom Board and others[6], the Court very succinctly laid down as to what should be the approach of the court for deciding what constitutes an essential practice of a religion in the following words:
“The legal position that the protection under Article 25 and 26 extend a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion and as to what really constitutes an essential part of religion or religious practice has to be decided by the Courts with reference to the doctrine of a particular religion or practices regarded as parts of religion…”
Second Ananda Marga case
In Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and others, being the second Ananda Marga case, the Court has elaborately discussed the true nature of an essential practice and has further laid down the test for determining whether a certain practice can be characterized as essential to a particular religion in order to guarantee protection under the Constitution. The Court has opined:
“The protection guaranteed under Articles 25 and 26 of the Constitution is not confined to matters of doctrine or belief but extends to acts done in pursuance of religion and, therefore, contains a guarantee for rituals, observances, ceremonies and modes of worship which are essential or integral part of religion. What constitutes an integral or essential part of religion has to be determined with reference to its doctrines, practices, tenets, historical background etc. of the given religion.
What is meant by ‘an essential part or practices of a religion’ is now the matter for elucidation. Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices the superstructure of religion is built. Without which, a religion will be no religion.
Test to determine whether a part or practice is essential to the religion is – to find out whether the nature of religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part.
There cannot be additions or subtractions to such part. Because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts is what is protected by the Constitution. Nobody can say that essential part or practice of one’s religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the ‘core’ of religion where the belief is based and religion is founded upon. It could only be treated as mere embellishments to the nonessential part or practices.”
In the light of the above authorities, it has to be determined whether the practice of exclusion of women of the age group of 10 to 50 years is equivalent to a doctrine of Hindu religion or a practice that could be regarded as an essential part of the Hindu religion and whether the nature of Hindu religion would be altered without the said exclusionary practice. The answer to these questions, in our considered opinion, is in the firm negative.
In no scenario, it can be said that exclusion of women of any age group could be regarded as an essential practice of Hindu religion and on the contrary, it is an essential part of the Hindu religion to allow Hindu women to enter into a temple as devotees and followers of Hindu religion and offer their prayers to the deity. In the absence of any scriptural or textual evidence, we cannot accord to the exclusionary practice followed at the Sabarimala temple the status of an essential practice of Hindu religion.
Reference
An excerpt from ‘Young lawyers Association v. State of Kerala (2018)
[1] (2003) 6 SCC 611
[2] (1904) AC 515
[3] AIR 1958 SC 731
[4] AIR 1995 SC 464
[5] AIR 1961 SC 1402
[6] (2002) 8 SCC 106