The Transformative Constitution

by Gautam Bhatia

  II. ‘Essential Religious Practices’—Tracing the Genealogy of a Phrase

  In Saifuddin, the majority and concurrence both struck down the Excommunication Act on the grounds that excommunication was an integral, or essential, part of the Dawoodi Bohra faith. As held by the majority, ‘what constitutes an essential part of a religious or religious practice has to be decided … with reference to the doctrine of a particular religion’.14 Once that was established, curtailing the power of excommunication was deemed to be interference into a purely religious matter, and, therefore, not saved by the social reform clause of the Constitution.

  The term ‘essential religious practices’ as the trigger for invoking the protection of Articles 25 and 26 has long been criticized. The objection is well known and has been made throughout the Court’s history: it is not for the judiciary to pronounce on the importance of specific doctrines or beliefs internal to a religion.15 This criticism is familiar to other liberal constitutional jurisdictions. Constitutional courts in the US,16 Canada,17 and Europe18 have established limits upon the extent to which individuals or groups can engage in religious practices that might conflict with the civil law of the State. But, for the most part,19 they have refused to impose an external point of view upon whether a practice is religious or not, and how important it is to its adherents. This refusal is part of a deeper commitment to constitutional liberalism, which declines to impose particular substantive visions of the good upon individuals.20 As Saifuddin illustrates, this approach is not the approach of the Indian Supreme Court.

  What is the genesis of the phrase ‘essential religious practices’? An answer, of sorts, is found in the Constituent Assembly Debates. While discussing the religious freedom clauses, Ambedkar observed:

  … the religious conceptions in this country are so vast that they cover every aspect of life, from birth to death … I do not think it is possible to accept a position of that sort … 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. It is not necessary that … laws relating to tenancy or laws relating to succession should be governed by religion.21

  Ambedkar, therefore, was speaking to a very specific concern, a concern that scholars have located in the difference between the ‘thin’ and ‘thick’ role of religion.22 In Western liberal democracies, where religion has (largely) been relegated to the sphere of private worship and ceremony, religious autonomy is unlikely to seriously jeopardize the State’s legislative programme, or, for that matter, to affect individual rights in any meaningful way. In India, however, according to Ambedkar, religion, the private life of the individual, and the public life of the community are inextricably bound together (in T.N. Madan’s words, religion is ‘constitutive of society’).23 Consequently, the State would have no choice but to restrict the operation of religious freedom to matters that are essentially religious, and not those that are secular in character but over whom religion nonetheless claims dominion. As we have seen, the Constitution explicitly contains this division, in the very text of the numerous sub-clauses of Articles 25 and 26. Indeed, Ambedkar’s original formulation seemed to be precisely oriented towards denying religious groups sweeping powers over their constituents.

  What Ambedkar and the constitutional text did not do, however, was to provide a test, or a set of principles, for distinguishing the religious from the secular. Both provided examples—Ambedkar of tenancy and succession law, the Constitution of administration of property—without actually answering the question. And so the battle moved to the courts.

  As early as 1954, the Supreme Court acknowledged the ‘thick’ conception of religion by rejecting a definition that would have limited it to private matters of thought, conscience, and belief. It accepted, instead, that the religious freedom clauses would also protect action and practice. In Lakshmindra Swamiar, a case that dealt with State control over the administration of religious denominations, the Court held:

  … if the tenets of any religious sect … prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year … all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment … would not make them secular activities partaking of a commercial or economic character.24

  The Court went on to hold that under Article 26(b), religious denominations had complete autonomy to decide what rites and ceremonies were essential to the religion.

  The Court therefore began by adopting an internal point of view to distinguish between the religious and the secular: look to the religion itself. This doctrine nonetheless fails to solve Ambedkar’s poser. If religion itself claims such a vast domain, making religion the arbiter of what falls within its domain seems illogical. The position was, however, affirmed in a similar case that same year.25 In both cases, the Supreme Court employed the ‘essential practices’ formulation—borrowed from Ambedkar—to distinguish between the religious (free from regulation) and the secular (subject to regulation).

  However, three years later, there was a sudden change of tack, when the Allahabad High Court was asked to decide whether government regulations prohibiting bigamy violated Article 25(1). It was argued that, because of the special religious duties performed by Hindu sons, bigamy was required in case no male children were forthcoming from the first marriage. In response, the Court analysed certain important Hindu religious texts and held that ‘polygamy … [is not] an essential part of the Hindu religion’.26

  Here is the key shift: the word ‘essential’ went from qualifying the nature of the practice (whether it is religious or secular) to qualifying its importance (within the religion), i.e., from whether something is essentially religious to whether it is essential to the religion. It was a minor semantic shift but with significant consequences, because it allowed the Court to address questions internal to religion in a judicial enquiry, and thereby define the nature of religion itself. Towards the end of the decade, this test was affirmed by the Supreme Court in upholding a law prohibiting cow slaughter.27

  At the turn of the Court’s first decade, therefore, there appeared to be two distinct tests under Article 25 and 26 of the Constitution. First: was the practice of a religious or secular nature? And second: was it essential to the religion? The first enquiry was conducted to decide which aspects of temple or religious trust management could come within State control. The second was to decide whether specific religious practices which the State sought to prohibit or regulate met the threshold test for constitutional protection at all. As we have seen above, while the distinction between religious and secular was set up by the Constitution itself and in Ambedkar’s framing speech, the distinction between essential and inessential religious practices was nowhere to be found in the text or history.

  While the Court was yet to recognize, let alone explain, the dichotomy, it is easy to see how and why it came about. The original sin lay in Lakshmindra Swamiar. That case had set up two propositions in tension with one another: first, that the scope of the religious freedom clauses extended to practice and conduct; and secondly, what practice or conduct was protected was to be judged from the internal standpoint of the religion itself. When placed in the context of Ambedkar’s acute observation about the influence of religion in Indian public life, no Court could have faithfully followed both propositions. However, instead of rethinking Swamiar, the Court’s response was to tweak the test in a subtle but far-reaching direction, one that effectively gave it substantial powers of intervention into religious faith—a direction that had clearly not been contemplated by the constitutional framers.

  In the 1960s, however, in a series of judgements delivered by Justice (and then Chief Justice) Gajendragadkar, the systematic distinction between the two tests was dissolved. While deciding upon the constitutionali
ty of an Act stipulating control over the managing committee of a Muslim dargah, Justice Gajendragadkar observed in obiter:

  [for] the practices in question … [to] 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 … Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself …28

  In this paragraph, Justice Gajendragadkar ran together the two distinct tests. In the first part of the first sentence, he equated ‘being part of a religion’ with being an ‘essential and integral part’ of it, for the purposes of constitutional protection. He then observed that the reason for this distinction was to differentiate between the merely secular claiming the mantle of religion and the actually religious. But that wasn’t all; he then argued that ‘similarly’, there was a distinction between the religious and the merely ‘superstitious’.

  There is, however, nothing ‘similar’ between the two! The religious/secular distinction, however it might be drawn, does not involve the court in external normative value judgements about the religious practice in question. In addition to combining the two tests, Justice Gajendragadkar was making another innovation. Effectively, he was clothing the judiciary with the power to achieve, by interpretation, what the Constitution had allowed Parliament to do, through legislation: implement ‘social reform’ by erasing supposedly regressive religious practices by labelling them as mere superstition. Earlier, when the Court had taken upon itself the task of deciding what constituted an essential or integral aspect of a religion, it had already assumed the power of erasure. Now, that power was coloured with the brush of normativity. And the very next year, the two (equated) tests were merged into two succeeding steps of a single test. In Govindlalji v. State of Rajasthan, Justice Gajendragadkar held that ‘the Court may have to enquire whether the practice in question is religious in character and, if it is, whether it can be regarded as an integral or essential part of the religion’.29

  Finally, in Sastri Yagnapurushadji v. Muldas, the appellants tried to circumvent the operation of a Bombay temple entry law, which required public Hindu temples to open themselves up for worship to all castes, by arguing that the ‘Swaminarayan sect’ did not consider itself to be Hindu at all. This contention was rejected by now Chief Justice Gajendragadkar, who devoted reams of text to prove that the Swaminarayan sect was, indeed, Hindu (contrary to its own self-identification), by isolating a few core concepts that formed the bedrock of ‘Hinduism’.30 The Chief Justice’s vision of Hinduism, as many scholars have remarked, was that of a rationalistic and progressive religion, implicit within which was the further notion that the appellants, in trying to continue to deny certain castes the right to worship in their temple, had themselves misunderstood the principles of Hinduism.31

  To sum up, therefore: through the 1960s, CJI Gajendragadkar combined the two distinct tests, viz., religious/secular and essential/inessential, into a single one. With respect to the first test—now the first ‘step’—he continued to pay formal obeisance to the internal point of view, i.e., to the religious community’s determination of the scope of what constituted religion, while actually determining the question by judicial fiat; and to the second, he added a normative prong, which allowed the Court to cleanse and uniformize disparate religious practices in an—allegedly—socially ‘progressive’ direction, again by judicial fiat.32

  Doing so had two further consequences: as the Court increased its own power in this manner, the use of Article 25(2)(b)—which granted the State the power of religious intervention for social reform—began to decrease.33 And secondly, at times, the Court was led to record seemingly absurd conclusions. In Commissioner of Police v. Acharya Jagdishwarananda Avadhuta, it refused to accept a practice (in this case, a war-like public dance performed on the streets) as an essential religious practice even when the sect’s founder had stipulated it in the sect’s holy book, precisely so that it could be accorded constitutional sanctity.34

  Indeed, in that case, the absurdity of the conclusion was recognized by Justice Lakshmanan in a strong dissenting opinion. As a first of any judge formally noting thus, Justice Lakshmanan observed that Justice Gajendragadkar’s observations in Durgah, distinguishing the ‘superstitious’ from the ‘essential religious practices’ and calling for close judicial scrutiny to determine the content of ‘essential religious practices’, were at variance with the original dictum of the Court in Swamiar. Justice Lakshmanan, instead, swung the pendulum to the other end: ‘to allow any authority to judge the truth or falsity of a religious belief or practice is to destroy the guarantee of religious freedom in the Constitution.’35 Justice Lakshmanan’s opinion parallels that of Justice Ayyangar’s concurring opinion in Saifuddin, and provides a counter-point to the dominant ‘three-step test’. This counterpoint goes back to the original formulation in Swamiar. By adopting the internal point of view and a deferential approach towards what constitutes constitutionally protected ‘religion’, it tips the balance back towards maintaining the integrity of religious groupings over social-reformatory purposes of the parliament and the judiciary.

  III. The Three-Step Test and Its Discontents

  The Supreme Court itself, on occasion, has evinced awareness of the tensions created by its jurisprudence. In late 2015, Justice Gogoi observed that the ‘performance of such tasks, i.e., determination of essential religious practices, is not enjoined in the court by virtue of any ecclesiastical jurisdiction conferred on it but in view of its role as the Constitutional arbiter … [and] on the touchstone of constitutional necessity.’36 These words are interesting, suggesting that the Constitution has necessarily entrusted the task of determining essential religious practices to the Court. This necessity would seem to stem from Ambedkar’s observation in the Constituent Assembly about the pervasive role of religion in Indian public life.

  For this reason, the argument goes, the Constitution itself exhibits a ‘reformist intention’,37 and in interpreting it, Indian courts cannot adopt the hands-off, deferential approach to religion that is the hallmark of other constitutional courts. This is why the Supreme Court, in its first ever decision in Swamiar, appeared to do two contradictory things: extend the scope of Articles 25 and 26 to religious conduct and practice, giving it, in theory, a vast jurisdiction, while at the same time placing a limit upon what counted as religion, and restricting its influence. And this is why the alternative approach, in Justice Ayyangar’s concurring opinion in Saifuddin, and Justice Lakshmanan’s dissent in Avadhuta (II), while seemingly elegant and attractive, are nonetheless inconsistent with the constitutional text and purpose.

  The ‘three-step test’, however, comes at a high cost. First, unlike the religious/secular distinction, it has no root in the constitutional text or history.38 Second, the Court has failed to develop a rigorous methodology for determining the content of essential religious practices.39 It has relied upon English-language sources,40 colonial writings41 (in stark contrast, for instance, to the approach of the South African Constitutional Court),42 and has even decided cases without taking testimony from the affected parties.43 The Court’s enquiry privileges a certain set of sources and has the effect of uniformizing and homogenizing religious meaning at the cost of dissident and marginalized traditions.44 This, of course, is part of the broader critique that questions the Court’s competence and legitimacy to adjudicate religious truth.45

  Third, as cases like Avadhuta show, the enquiry itself seems to destroy the balance between secular intervention and religious autonomy. If it is true that religious communities are essential for self-determination by providing the ‘contexts of choice’ within which individual autonomy becomes meaningful, then the determination and imposition of religious meaning by an external authority seems to defeat the purpose entirely.46


  And fourth, the justifications for this approach seem to rest not in constitutional principles but in consequentialist considerations. Galanter argues, for instance, that the Court’s reliance on the three-step test instead of the social reform clause is because regulating a practice that has been pronounced as non-religious, or inessentially religious, enjoys more presumptive legitimacy than granting threshold constitutional protection and then upholding the State’s coercive power to regulate.47 This also explains CJI Gajendragadkar’s efforts to hold that religion, truly understood, is in harmony with the reformatory ideals of the Constitution. However, as Galanter himself acknowledges, there is no empirical evidence to substantiate this claim.48

  The other consequentialist justification has been that of necessity, as Justice Gogoi observed. The three-step test is required because it is the only way the judiciary can stay true to the broader constitutional vision of regulating and limiting the vast scope of religion in Indian life in the interests of social reform. As mentioned above, the constitutional text itself exhibits reformist intentions; and scholars of Indian secularism have repeatedly differentiated it from its liberal Western counterpart, noting its ‘ameliorative’49 or ‘contextual’50 nature, which specifically envisages State intervention into religion in order to achieve certain substantive values.

  However, is the three-step test the only way to achieve this? This claim too is doubtful. Each of the cases (referred to above) in which the three-step test was applied could have been decided on alternative, textual grounds. In Ram Prasad Seth, the Court upheld bigamy prohibition both on the touchstone of Article 25(2)(b), and on the grounds that it wasn’t an essential religious practice. In Qureshi, while upholding a ban on cow slaughter, the Court spent a lot of time on the public health benefits of preserving the bovine population, and could have, therefore, upheld the prohibition upon the ‘public health’ prong of Article 25(1), instead of holding, as it did, that cow slaughter during Eid was not an essential part of Islam. Sastri Yagnapurushadji could have been decided under Article 25(2)(b), which expressly allows the State to legislate for temple entry.51 In Seshammal, the abolition of hereditary priesthood was expressly defended by the State on the grounds of social reform, an argument ignored by the Court. And similarly, in Ismail Faruqui, the State takeover of the disputed land in Ayodhya was expressly defended on the grounds of preservation of public order, a permitted basis of restriction under Article 25(1)—again, ignored by the Court.