Saji Koduvath, Advocate, Kottayam.

Art. 25 & 26 of the Constitution is the heart and soul of Religious Freedom

The framers of the Constitution placed the heart and soul of the religious rights and freedom in Articles 25 and 26 of the Constitution of India. They are the Fundamental Rights relating to the Freedom of Religion.

Article 25 and 26 read as under:

• 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, 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 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.

• 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.

Read Blog: Secularism and Art. 25 & 26 of the Indian Constitution

Following important findings are rendered in the first decision, Commr, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt:

• (i)  Right to manage the affairs of religion is a fundamental right which cannot be taken away by legislature.
• (ii) The right and guarantee given to administer property being ‘in accordance with law’, the law, ‘must leave the right of administration to the religious denomination itself’ subject to such restrictions and regulations imposed by laws by legislature.

Following important finding is rendered in the second decision, Durgah Committee, Ajmer v. Syed Hussain Ali (Justice Gajendragadkar):

• “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; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.”

It is held further in Dargah Committee case as under:

• “If these practises were found to be purely secular practices or mere practices sprung from ‘superstitious beliefs and may in that sense is extraneous and UNESSENTIAL accretions to RELIGION’ the State was free to enact laws on such matters.“

Observation in Dargah Committee Case only an Obiter according to Seervai

The observation in Dargah Committee case as to “…practices though religious may have sprung from merely superstitious beliefs and may in that sense is extraneous and unessential accretions to religion itself” is criticised by Seervai in his treatise ‘Constitutional Law of India’ and observed that it was only an obiter. From this decision, it may appear that these are matters that dwell within the domain of Courts. (That is, the yardstick would be the consciousness of Court.)

Gajendragadkar J., Subsequently, Affirmed- ‘Enquiry on Tenets of Religion’

But, Justice Gajendragadkar himself (who authored Dargah Committee Case) explained, as to enquiry on integral part of religion, in a subsequent Constitution Bench [BP Sinha, CJ, Gajendragadkar, Wanchoo, Das Gupta, JC Shah JJ.] decision, in Tilkayat Shri Govindlalji Maharaj Vs. St. of Rajasthan, 1963AIR SC 1638, as under:

• “In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which practice is an integral part of its religion, because the community may speak with more than one voice and the formula would, therefore, break down. This question will always have to be decided by the Court and in doing so, 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, and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion.”

CONFLICT between SHIRUR MUTT CASE and DURGAH CASE

The law handed down by the Supreme Court in these two rulings are divergent in certain material particulars. They are:

1. Whether ‘religious Denomination or any section thereof‘ extends to religious ‘Organization’, ‘Sect, Sub-sect’ etc.? (Shirur)
   • Or, whether protections in Article 25 and 26 are limited to practices that are essential and integral part of RELIGION and no other? (Durgah)
2. Who determines – what constitutes the essential part of a religion? Is it left to be determined by the Denomination or Section; and whether a religion or any section thereof holds the fundamental right to ‘manage its own affairs‘ (which no legislature can take away) and enjoys complete autonomy (so that no outside authority has any jurisdiction); and whether it is primarily to be ascertained with reference to the doctrines of that religion itself? (Shirur)
   • Is it determined by the COURT? (Durgah)
3. Whether the freedom to ‘practice religion’, protect ‘(all) acts done in pursuance of a religion; and whether freedom of religion is guaranteed to all religious practices, except that which run counter to public order, health and morality. (Shirur)
   • Or, whether protections in Article 25 and 26 are limited to practices that are ESSENTIAL and INTEGRAL part of Religion and no other? (Durgah)

The findings of the Apex Court, in these cases, on Article 25 and 26, can be summarised as under:

Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay

(AIR 1962 SC 853 – BP Sinha, CJ., AK Sarkar, Das Gupta, N. Rajagopala Ayyangar, Mudholkar, J.J.)

• Note: 1. Sarkar, Das Gupta , Rajagopala Ayyangar were also judges in Durgah Committee, Ajmer Vs. Syed Hussain Ali. [Other Judges in Durgah Committee were – Gajendragadkar, and KN Wanchoo.]
• Note: 2. This decision is stand referred to a larger bench by Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673.

The Bombay Prevention of Excommunication Act, 1949 was challenged in Sardar Syedna Taher Saiffuddin Saheb Vs. State of Bombay. This Act made act of “ex-communication” illegal under Sec. 3, which reads as under:

• “3. Notwithstanding anything contained in any law, custom or usage for the time being in force to the contrary, no excommunication of a member of any community shall be valid and shall be of any effect.”

Sec. 4 made excommunication, a punishable offence. The Act was challenged by the head of the Dawoodi Bohras, as:

• being impinging upon the right of the Dawoodi Bohras to freely practice their religion according to their own faith and practice, a right guaranteed under Articles 25 and 26 of the Constitution.
• It was contended that the right of the head of the Dawoodi Bohra community to ex-communicate is an essential part of the creed of the Dawoodi Bohra sect as it is a necessary measure of discipline for maintenance of integrity of the community, to hold together the community, so that the community faith, belief and practice can be preserved and hence protected by Article 26(b).

The Supreme Court, by majority (4 : 1), accepted the argument and struck down the Act as violative of Article 26(b) of the Constitution.  It is pointed out in this decision as under:

• “The content of Arts. 25 and 26 of the Constitution came up for consideration before this Court in:
  • The Commissioner, Hindu Religious Endowments Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt;
  • Mahant Jagannath Ramanuj Das Vs. The State of Orissa;
  • Sri Venkatamana Devaru Vs. The State of Mysore;
  • Durgah Committee, Ajmer Vs. Syed Hussain Ali and several other cases
• and the main principles underlying these provisions have by these decisions been placed beyond controversy.
  • The first is that the protection of these articles is not limited to matters of doctrine or belief, they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion.
  • The second is that what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the COMMUNITY as a part of its religion.” (This part is referred to in Most Rev. P.M.A. Metropolitan Vs. Moran Mar Marthoma, AIR 1995 SC 2001)

It is also held as under:

• “It is clear however that apart from these limitations the Constitution has not imposed any limit on the right of a religious community to manage its own affairs in matters of religion. The fact that civil rights of a person are affected by the exercise of this fundamental right under Art. 26(b) is therefore of no consequence. Nor is it possible to say that excommunication is prejudicial to public order, morality and health.”

In this decision the Constitution Bench of our Apex Court:

• observed that the exercise of the power of ex-communication by the religious head on religious ground form part of the management of its affairs in matters of religion and
• held that it was difficult to agree that court was not a forum for vindication of such right.

The Chief Justice , SB Sinha (minority) observed as under:

• “That conclusion is further strengthened by the consideration that the effect of the excommunication or expulsion from the community is that the expelled person is excluded from the exercise of rights in connection not only with places of worship but also from burying the dead in the community burial ground and other rights to property belonging to the community, which are all disputes of a civil nature and are not purely religious matters.”

“Religious Denomination or Any Section Thereof“

In Adi Saiva Sivachariyargal Nala Sangam Vs. Govt. of TN (2016)[113] the Apex Court (Ranjan Gogoi & NV Ramana JJ), 2016- 2 SCC 725 considered the ‘religious practice’ of a GROUP or denomination. In Sri Venkataramana Devaru Vs. The State of Mysore (1958),[114] (Venkatarama Aiyar, J.), AIR 1958 SC 255, observed that it was settled that matters of religion in Art. 26(b) include even practices which are regarded by the COMMUNITY as part of its religion.

Commissioner of Police v. Acharya Jagadishwarananda Avadhuta (2004)

It is the second Ananda Margi case. In the first Ananda Margi case (Acharya Jagdishwaranand Avadhuta v. Commr. of Police, AIR 1984 SC 51), the Supreme Court held that the Tandava dance in public (with knife, live snake, trident, skull, etc.) was not an essential rite of the Ananda Margi faith. In this second Ananda Margi case, Commissioner of Police v. Acharya Jagadishwarananda Avadhuta, AIR 2004 SC 2984, the majority rendered its verdict following Durgah Committee, Ajmer v. Syed Hussain Ali, which observed that ‘the protection must be confined to such religious practices as are an essential and integral part of it and no other‘.

The minority view in this decision is rendered by AR Lakshmanan, J. It is laid down as under:

• “This observation of this Court (in Durgah Committee, Ajmer v. Syed Hussain Ali), in our view, runs counter to the observation of Mukherjee, J. in The Commissioner, Hindu Religious Endowment, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra). In this context, it is useful to reproduce a passage from the above judgment which explains the definition of religion in paragraphs 14 and 19 of the judgment which are –
  • “We now come to Art. 25 which, as its language indicates, secures to every person, subject to public order, health and morality, a freedom not only to entertain such religious belief, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others….
  • ….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, that 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 all these would be regarded as parts of religion…”
• In a subsequent decision, namely, His Holiness Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami etc. v. The State of Tamil Nadu [AIR 1972 SC 1586], this Court has held that –
  • ‘Worshippers lay great store by the rituals and whatever other people, not of the faith may think about these rituals and ceremonies, they are a part of the Hindu Religious faith and cannot be dismissed as either irrational or superstitious.’
• The contention that the word ‘religion’ under Article 25(1) of the Constitution of India does not include sect of religion of Ananda Marga being declared as religious denomination does not qualify for the same protection as religion in our view is not tenable. The learned Judges of the Calcutta High Court in their judgment impugned in this appeal has categorically dealt with the question following the decision exactly on the same point in the case of Shirur Mutt (supra) and the National Anthem case (Bijoe Emmanuel v. State of Kerala) reported in [AIR 1987 SC 748] and Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors., [AIR 1958 SC 255] held that a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rights and ceremonies are essential according to the tenets of the religion they hold and outside authority has no jurisdiction to interfere with their decision in such matters.”

The Crux of Sabarimala-Review-Matter

Read Blog: Sabarimala Review Petitions & Reference to 9-Judge Bench

In the Sabarimala review-reference (to higher Bench) Judgment, Kantaru Rajeevaru v. Indian Young Lawyers Association, 2020-2 SCC 1, it is observed that there is conflict between the Shirur Mutt Case and Durgah Committee Case. In the aforesaid review-reference-judgment the Court said as under:

• “7. In this context, the decision of the Seven Judges bench of this Court in Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (Shirur Mutt) holding that what are essential religious practices of a particular religious denomination should be left to be determined by the DENOMINATION ITSELF and the subsequent view of a Five Judges bench in Durgah Committee, Ajmer v. Syed Hussain Ali & Ors. carving out a ROLE FOR THE COURT in this regard to exclude what the courts determine to be secular practices or superstitious beliefs seem to be in apparent conflict requiring consideration by a larger Bench.”

The issues placed before the nine-judge-bench are reframed in Kantaru Rajeevaru v. Indian Young Lawyers Association, 2020-3 SCC 52, as under:

• 1. What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
• 2. What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?
• 3. Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?
• 4. What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?
• 5. What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?
• 6. What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution of India?
• 7. Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?

Inter-play between the Rights under Article 25 and Article 26

• Art. 25 refers to rights of persons freely to profess, practice and propagate religion. Art, 26 says as to the rights of every religious denomination or any section thereof to manage its own affairs in matters of religion.

From the above, the following questions emerge:

• Do religious denomination or any section thereof have a right to freely to profess, practice and propagate religion
• Do persons have a right to manage his own affairs in matters of religion.

Prohibition of Entry of Muslim Women in Mosques in India: Points Placed in Challenge

The petitioners in the Writ Petition, Yasmeen Zuber Ahmad Peerzade v. Union of  India, filed before the Supreme Court under Article 32 of the Constitution of India, sought the declaration that the practices of prohibition of entry of Muslim Women in Mosques in India is illegal and unconstitutional for being violative of the fundamental rights to equality, life and liberty and freedom of religion, proclaimed under Articles 14, 15, 21, 25 and 29 of the Constitution. They placed the following points for the consideration of the Apex Court:

1. The prohibition is void and unconstitutional as such practices are repugnant to the basic dignity of a woman as an individual.
2. The arbitrary prohibition imposed on women is violate of Article 14 of the Constitution of India – to be treated equally – and Article 15 of the Constitution which clearly prohibits discrimination by the government on the basis of sex.
3. The prohibition imposed is violative of fundamental rights under Articles 25 and 29 also of the Constitution of India.
4. Preventing the females from entering mosque is violative of Article 44 of the Constitution of India which directs the State to endeavour to secure uniform civil code.
5. The exclusion of women is, nonetheless, not supported by reasons of  “public order”, “health”, “morality” (in Article 25), and, in any case, Article 25(1) will not take precedence over other articles.
6. A woman’s entry to a masjid or eidgah (a place where Muslims congregate for Eid-ul-Fitr and Eid-ul-Azha celebrations) does not create fitna (distress).
7. In the Hajj pilgrimage and Umrah (a lesser Hajj) thousands of Muslim women gather and perform Hajj rituals such as tawaf (walking around the Ka’ba) and sa’I (running between the hills of Safa and Marwa) and ramye zamrat (stoning of the devil ceremony) along with their male counterparts.
8. Religious bodies ask for and receive taxpayers’ money from the government are also subject to the conditions imposed by our Constitution.
9. The historical sources also show that Prophet Muhammad had himself encouraged women to actively participate in mosque congregations and prayer.
10. The most sacred mosque in the world for Muslims, Masjid-al-Haram in Mecca, embraces both men and women and there is complete unanimity in the Muslim community on the Masjid-al-Haram in Mecca – to all Muslims in the world.
11. The Apex Court, in Khursheed Ahmad Khan v. State of Uttar Pradesh and Others, (2015) 8 SCC 439, has taken the view that practices permitted or not prohibited by a religion do not become a religious practice or a positive tenet of the religion, since a practice does not acquire the sanction of religion merely because it is permitted.
12. The petitioners also argued that there is nothing in the Quran and the Hadith that ‘requires gender segregation’and that the Legislature has failed to ensure the dignity and equality of women in general and Muslim women in particular.

Stance of the contesting respondents

The contesting  respondents have not filed their response in Court. Their stance, as appears from the counter affidavit filed by the All India Muslim Personal Law Board, would be, mainly, the following:

1. The issues do not pertain to any statute.
2. The alleged  rights cannot be enforced against non-state entities like Mosques.
3. Friday Namaz in congregation is not obligatory for women, though it is so, on Muslim men. As per doctrines of Islam, a woman is entitled to the same religious reward (Sawab) for praying as per her option either in Masjid or at home.
4. The matters involved are religious practices based upon beliefs of the religion.
5. They are not matters ‘merely concern’ the management of a religious place.
6. They are not the activities ‘only concern’ regulating the activities connected with religious practice.
7. The matters involved are matters concern of Masjids, purely private bodies regulated by Muttawalis.
8. It is not appropriate for the Court to enter into or interpret the religious principles/beliefs and tenets, invoking Articles 14, 15, 21, 25 and 29 of Constitution of India.
9. It is not appropriate for the Court to attempt to answer issues that are matters of faith alone, when there is no ‘threat to life and liberty’. 
10. It is not appropriate for the Court to interfere in religious beliefs and the practice of the essential features of any religion protected underArticle 26.
11. In the absence of any state action, it is not appropriate for the Court to judicially determine or interfere in, or to seek resolution of, various aspects on ‘faith and belief’, and essential religious practices of faith, through judicial process.  It should be left to be resolved through the processes of social transformation within the religious denomination itself.
12. During the pendency of the present petition, a five Judge Bench judgment in Kantaru Rajeevaru Vs. Indian Young Lawyers Association [Sabarimala-Case-Review from 2019-1 SCC 1]  has referred matters involving Articles 14, 25 and 26 to larger bench. The matters involved in that case are much relevant in this case also.

See Also: ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional

Excommunication of Parsi Women for Marrying a Non-Parsi

A Parsi woman will lose her religious identity if she marries a Non-Parsi.  Unlike a woman, a Parsi man will not face such a predicament. Can this anomaly be saved as an ‘essential religious practice’?  Is it an ‘integral practice’ touching upon the right to profess, practice and propagate one’s own religion? These were the main questions placed before the Gujarat High Court in the writ petition in Ms. Goolrokh Gupta v. Burjor Pardiwala, AIR 2012 CC 3266. The petitioner contended as under:

• No tenet of Zorastrianism denied a born Parsi woman, rights to her religious identity on marriage to a non-Parsi.
• It was violative of the right to equality under Articles 14 of the Constitution of India.
• It was pointed out that this excommunication is a matter of social and constitutional concern.
• Excommunication could be equated to the practice of untouchability, as the effect of both was the deprivation of human dignity and civil rights.
• The matter involved issues of the right to individual’s right to faith and practice religion under Article 25.
• Though there should be a need to balance the rights of individuals as well that of the denomination under Article 26 to manage internal affairs, it was argued that the fundamental rights being primarily concerned with rights of individuals and protect individuality and choices, due importance should be given to the same.

The Parsi Trust opposed the petition and contended as under:

• A Parsi woman, upon marriage with a non-Parsi, ceases to be a Parsi. 
• Denial of entry to non-Parsis to Parsi institutions was an essential practice of the religion.
• Under Article 26, the Parsi Trust was entitled to regulate entry. 
• Zorastrianism directed renunciation of Parsi religion if a Parsi woman undergoes the inter-faith marriage.

The petition was dismissed by 2:1 majority. It accepted the argument of the Parsi Trust that a Parsi woman, upon marriage with a non-Parsi under the Special Marriage Act, ceased to be a Parsi. 

Majority Decision

Minority Decision

See Also: Excommunication of Parsi Women.

Conclusion

• Will – Probate and Letters of Administration
• Executors of Will – Duties & their Removal