How far do you think that the “essential religious practices” of a religious denomination are accorded constitutional protection under Article 26? What should be the permissible extent of judicial recognition to PILs in matters calling into question the religious practices of a denomination?

Demand of the Question: Introduction: Briefly write about Art 26 Body: SC doctrine of essentiality for religious practices with relevant cases. Issues with the application of ERP doctrine. Should the judiciary entertain PILs in matters of religion? Conclusion: Need for ERP to resolve the dichotomy of pluralism and constitutional morality.
MODEL ANSWER: The freedom to manage religious affairs is provided by Article 26, it gives the right to every religious denomination, or any section thereof, to exercise the rights that it stipulates. However, this right has to be exercised in a manner that is in conformity with public order, morality, and health. Article 26 does not deal

with the right of an individual but is confined to a religious denomination. Article 26 refers to a denomination of any religion, whether it is a majority or a minority religion, just as Article 25 refers to all persons, whether they belong to the majority or minority religion.
SUPREME COURT’S DOCTRINE OF ESSENTIALITY The doctrine of “essentiality” was invented by a seven-judge Bench of the Supreme Court in the ‘Shirur Mutt’ case in 1954. It is a contentious doctrine evolved by the court to protect only such religious practices which were essential and integral to the religion. The court held that the term “religion” will cover all rituals and practices “integral” to a religion, and took upon itself the responsibility of determining the essential and non-essential practices of a religion.
“ESSENTIAL RELIGIOUS PRACTICES” ACCORDED CONSTITUTIONAL PROTECTION 1. The Dargah Committee case – The Court while dealing with the question of whether the Dargah Khwaja Saheb Act, 1955 violated the right to manage the religious property under Article 26 has held the Act valid. Religious practices 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 protection under Art. 26 may have to be carefully scrutinized; 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.” 2. Ismail Faruqui case- The Supreme Court has considered the question of acquisition of religious place by the State. A temple, a church or a mosque, etc.are essentially immovable properties and subject to protection under Article 25 and 26. Every immovable property is liable to be acquired. While the offering of prayer or worship is a religious practice, it’s offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as to form an essential or integral part thereof. 3. Ayodhya case- The Supreme Court upheld the Ismail Faruqui judgment and said a prayer in the mosque is not part of essential religious practices. 4. Sabarimala Case- The Supreme Court concluded that the practice of banning women from entering the temple is not an essential part of Hinduism, instead, that allowing women devotees in the temple is an essential part of the religion. 5. Shayara Bano case- The Supreme declared Triple Talaq or Talaq-e Biddat as unconstitutional. It is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. The court also said that this practice doesn’t form part of essential religious practices. These cases clearly show that the Supreme Court while dealing with the religious matters, struck down only those provisions which are not essential to that religion. However, the application of this doctrine has raised many issues.
ISSUES WITH APPLICATION OF ERP DOCTRINE 1. Lack of criteria – to decide what falls under this doctrine. For instance- In the case of Nikhil Soni case, while dealing with the validity of the practice of Santhara, stated that Santhara is not an essential religious practice and therefore not protected under Article 25, but no clarity regarding the criterion for determining whether it falls under the catena of essential religious practice 2. Deciding the validity of the religious practice is not unanimous- In the case of Triple Talaq, the verdict came as 3:2 majority. This shows the lack of unanimity on ERP doctrine. Therefore there is a lack of clear and objective criteria for deciding the validity of religious practice under the ERP Test.

  1. Inconsistency and ambiguous in application – While The Supreme Court in Ismail Faruqui case said a prayer in the mosque is not integral to Islam, but it remained silent on the aspect of group prayers. 4. The idea of providing constitutional protection only to those elements of religion which the court considers “essential” is problematic as it assumes that one element or practice of religion is independent of other elements or practices. So, while the essentiality test privileges certain practices over others, it is, in fact, all practices taken together that constitute a religion. 5. Justice Chandrachud’s take was that if a practice is essential to a religion, then it rules out testing that practice on benchmarks of the Constitution or Constitutional morality. Thus, it could help perpetuate an immoral or outdated or unconstitutional practice in the name of religious freedom.
    JUDICIARY SHOULDN’T ENTERTAIN PILS IN MATTERS OF RELIGION 1. Court as clergy – The judiciary doesn’t have the competence to determine the matters of faith. Entering into religious affairs leading to the phenomenon of Judico- Papism. 2. Infringing freedom of religion- Freedom of religion was meant to guarantee the freedom to practice one’s beliefs based on the concept of the “inward association” of a man with God. 3. The apex court in ‘Ratilal Panachand Gandhi vs The State of Bombay and Ors’ 1954 acknowledged that “every person has a fundamental right to entertain such religious beliefs as may be approved by his judgment or conscience”. 4. The framers of the Constitution wanted to give this autonomy to each individual. Scholars have argued that the essentiality test impinges on this autonomy. The apex court has itself emphasized autonomy and choice in its Privacy (2017), 377 (2018), and Adultery (2018) judgments. 5. The question raised by Justice Indu Malhotra in her dissent, regarding the intervention of Courts in religious matters, becomes very crucial to determine objectivity in law and reconciliation between culture and law. The ERP Test has been consistently applied by the Courts in a very inconsistent manner.
    REASONS FOR ENTERTAINING PILS 1. Freedom of religion is not a watertight compartment and it has to be balanced with other fundamental rights such as the Right to Equality, Article 17, Article 21. 2. Disallowing exclusionary practices- which further aggravate the issue of exclusion of women from wider societal participation as it gives indirect legitimacy. For instance – exclusion of women in Sabarimala case. 3. Sustaining Constitutional morality over societal morality which often based upon the ideas and beliefs which are against the basic tenets of our constitutional goals. 4. Upholding the Right to freedom of religion for all and not for certain sections of people who consider themselves as protectors of a religious denomination. 5. Eliminating gender injustice by banning the practices which are not essential to religion. For instance, in the Shayara Bano case, the Supreme declared Triple Talaq or Talaq-e Biddat as unconstitutional.
    The dichotomy between the pluralism and Constitutional morality cannot be resolved by an inconsistent tool of interpretation. Religious liberty and autonomy is an intrinsic part of the belief system of an individual. With the determination of the Constitutional validity of practice on the touchstones of the ERP test, the religious liberty of a person is at stake. The court should codify the ERP doctrine in order to bring uniformity and consistency in application.

Indian Constitution is the sole flower in South Asia’s constitutional graveyard. Comment. Why India’s Constitution remains a guiding light for the liberal world?

Demand of the Question:
Introduction: Explain the context.
Body: Why the Indian constitution remains the sole flower in South Asia’s constitutional graveyard. Provide an analysis highlighting reasons with facts.
How the Indian constitution remains a guiding light for the liberal world
Conclusion: As per context.
The Indian constitution with provisions regarding socio-economic justice to its amending procedure is a unique document in so many ways. But one unique feature which is less talked about is its stability in the regional context. Even though all South Asian countries have similar socio-economic conditions and shared past only the Indian constitution blooms as a sole flower in the constitutional graveyard of South Asia.

  1. Pakistan- Military coups in Pakistan began in 1958. There have been numerous successful attempts since 1951. Since its creation in 1947, Pakistan has spent several decades under military rule (1958 – 1971, 1977 – 1988, 1999 – 2008).
  2. Sri Lanka- Currently it is Sri Lanka’s second republican constitution, replacing the Sri Lankan Constitution of 1972, its third constitution since the country received autonomy within the British Commonwealth as the Dominion of Ceylon in 1948, and its fourth constitution overall.
  3. Afghanistan- After many years of war and six previous attempts, Afghanistan once again adopted a constitution in 2004. The Constitutional Loya Jirga (grand council) approved the country’s seventh constitution, by on January 4, 2004.
  4. Nepal – The Constitution was drafted by the Second Constituent Assembly following the failure of the First Constituent Assembly to produce a constitution in its mandated period.
  5. Bangladesh- After the assassination of Ziaur Rahman in 1981, the then Chief of Army Staff, started controlling civilian government in place. Again, Coup against the Caretaker government in 2007. The coup has ended as of in 2008 after the military government held a parliamentary election in December 2008 and transfer of power was handed over to the Awami League
  6. Break with the Past- Most of the Constitution couldn’t keep the ancient values and experiences. Adopting Western Europe values which may not be suited in that context. For instance, the Afghanistan Constitution while a symbol of national rule, puts domestic goals as secondary. In the case of India, the Indian constitution preserved the legacy of the freedom struggle.
  7. Failure of Constituent Assembly- to frame a constitution that could provide enough safeguards from any short of conflicts between different organs of the governments. For instance, the conflict between Judiciary, President and Prime Minister was visible during late 1997 in Pakistan. The Indian constitution, on the other hand, ensured separation of powers between key organs for necessary checks and balances.
  8. Unable to accommodate diversity- cultural diversity, cultural affinity across regions, and decades of conflict make the central government’s ability to hold all parts of countries together weak. For Instance – The Madhesi issue in Nepal, the Pashtun issue in Afghanistan or Baloch issue in Pakistan. The Indian constitution accorded protection under fundamental rights for the cultural rights of minorities both religious and ethnic.
  9. Having state religion- Most of the South Asian countries are having state religion which goes against the idea of an inclusive society and which often discriminate against minorities and other sects. For instance, Afghanistan and Pakistan are Democratic as well as the Islamic republic. The Indian constitution, on the bedrock of partition, the violence, and bestiality, arose as modern secular Indian Republic guaranteeing liberty and equality to all its citizens
  10. Lack of legitimacy – Since most of the countries couldn’t provide equal respect to all, further led to a decline in trust and opened the door for a military coup. For instance a military coup in Pakistan, Bangladesh. The role of ECI in India right from the first general elections in 1952 to date has been that of trust-building between the political establishment and people, promoting free and fair elections.
    The longevity of constitutions the world over have been low., out of 792 new constitutional system, 518 have been replaced, 192 still in force, 82 have been formally suspended ultimately to be replaced. The mean lifespan of constitutions across the world since 1789 is, a mere 17 years.
  11. Justice and rule of law – which are entrusted to the judiciary, especially the High Courts and Supreme Court to exercise power under Article 32,142 & 226. Without the justice texts, there would be tyranny.
  12. Balance between the democratic and justice texts of the Constitution- Since Independence, the country’s constitutional history represents the tension between the democratic and justice texts with hostility between Parliament and the judiciary. Supreme Court in 1973 declared that Parliament’s amending power could not violate the Constitution’s basic structure.
  13. Asymmetric Federalism- with giving adequate protection and fulfilling the needs of the states. For instance Article 371, Schedule 6&7, Finance Commission, statutory grants.
  14. Sustaining a constitutional spirit with reformist zeal- a constitutional amendment to ensure the abolition of zamindari on a low-cost basis and to restructure the States on linguistic lines.
  15. Giving space to cultural diversity- Indian model of secularism with giving adequate protection to all religions under Article 25-28. Similarly protecting indigenous cultural identity under Schedule 5 & 6.
  16. All-encompassing Justice- Social, political and economic justice through Fundamental Rights and DPSPs. For instance, Article 15, 16, 38, 39, proved to be a beacon for other constitutions.
  17. Adopting into the emerging environment- with the Amenability provision under Article 368. For instance, 103rd introduces 10% reservation for Economically Weaker Sections (EWS) of society for admission to Central Government-run educational institutions and private educationally institutions (except for minority educational institutions), and for employment in Central Government jobs.
  18. Established basic rights and liberties and also de-legitimized some of the ancient practices among Hindus which were unfair to women and debased many on the basis of caste. Example abolition of untouchability Art 17, Devadasi system was formally outlawed in all of India in 1988.
  19. Adopted an entirely innovative economic policy that was clearly not Marxist or blatantly capitalist. Founding fathers believed that a mixed economy was the best way for India to overcome the initial days of becoming a modern industrial state.

Ultimately, the Constitution is not just addressed to the government or courts but to the people to imbibe the spirit of its democracy. India’s electoral democracy is an unabated election after election. Amidst many struggles, it is a testament for the Indian people, a kind of civic religion that Indians have adopted. The miracle continues.


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