An Analysis of Essential Religious Practice
This article is written by El-varith Fahad.AP student of Markaz Law College, at Calicut, Kerala.
India is specialized from other countries, with a written constitution dealing with almost all sphere of life of its people and its they are bound to provisions provided by the constitution as it is described as a foundation of their rights. It clearly sheds light to the fact that India stands for a secular state and it does not prioritize any specific religion for it is in neutral position in the matter of religious affairs. Indian constitution assures some fundamental rights to all its citizens and right freedom of religion is regarded as one of it. It bestows religious freedom to all who belonging to such religion. Therefore, right to practice including right to wearing religious clothing comes under this purview. These aforesaid rights are essential for a better life and proper development in the society. If one of the aforementioned rights, is intercepted, at anyhow, it is said to be sheer infringement of the fundamental rights guaranteed under constitution.
India as a secular state
According to India, it stands for a secular state. The concept of secular state had been inserted in the preamble of the constitution by 42nd amendment,1976, with a view to ensuring that state has no any interest in any specific religion for its subjects and it does not recognize any religion as official. On the other hand, all religions prevalent in India should be treated as equally, without prioritizing any concerned religion over others. The essence of the secularism, in the context of India, is non- discrimination of people by the state on the base of religious differences as India is unity in diversity. Secularism provides for the people some provisions which permit them to be willingly followed in any religion in which they desire to be and give them opportunity to profess, practice and propagate their religious rites, rituals and obligations.
Unlike Indian secularism, the secularism in western countries may be at variance with the concept of secularism in India and completely opposed to religion in the sense that state can be anti-religious state, for it is out and out separation from political, economic and cultural aspects of life. Most of the countries adopt and support negative secularism which based on a doctrine that religion is completely separated from the state. However, the secularism in Indian context, is entirely different, because India embodies the positive secularism permitting people to follow any exisiting religion in the state, as all religions are equally treated without any discrimination or priority, on the base of specific religion.
It allows believers to be abided by, any practice which is exercised by religion, provided that it should not be contrary to public order, morality and health. As long as a practice in a religion is not against mentioned above, it is assumed that such practice must be protected from being violated by no means. So the real meaning of the term secularism, in the Indian context, is ‘Sarva Dharma Sambav’ meaning ‘equal treatment and respect for all religion’.
So, if the expression ‘secularism’, in the Indian context, is subject to discussion, it may be cleared as broad day light that state is not eligible in order to interpret in the matters of religion as to whether a specific practice is essential part of it or not?, and it is not permitted to intercept any religious ritual or practice until they are contrary to public order, morality or health. Therefore, It is hard to say that merely wearing religious attire would affect the public order or disfigure the beautiful face of Indian secularism.
Secularism and freedom of religion.
During debate in constitutional assembly, the concept of Secular was recommented to be added by K.T Shah and it was passed during the time of Indhira Ghandi, by 42nd amendment, known as Mini constitution. The expression secularism is widely classified into two, i.e. positive secularism and negative secularism. Unlike Western countries, India embodies the positive secularism giving respect and protection to all religions equally, without prioritizing any some of them for its people and maintaining neutral position in the matters of religion. As India is a religiously diverse country, it does not recognize any religion as official and it ensures to make a distance from the subject matters of the religion until they are beyond the line of restrictions provided under the Indian constitution. Though right to freedom of religion is a fundamental right guaranteed to its citizens, it is not absolute and subject to restrictions, provided that such restrictions must be reasonable. Mere exhibiting any form of religious practice in the form of attire, is not said to be against the provisions provided by the constitution and the restrictions on this base are not reasonable.
In the real sense, secularism is that understanding, respecting all religions equally and making sure a distance from its subject matter. According to Jermy Rodel, he introduced three core principal of secularism, i.e. Institutional separation, Freedom of belief and non-discrimination on the ground of religion. As it is widely misunderstood, the secularism is not anti-religion or anti-god. But it is based on a principal that no any religion is prioritized than others and all are treated equally.
Right to freedom of religion is guaranteed to all individuals and religious groups by the constitution enshrined in article 25 to 28. Though it is considered as fundamental right, it is not absolute and subject to public order, morality and health, other provisions relating to fundamental rights, Regulation of economy, financial, political and secular activities associated with religious practice, social welfare and social reforms. Actually, religion is nowhere defined in the constitution, but it was, more or less, interpreted by the honorable court in the case of Davis v. Beason that the term religion has reference one’s view of his relation to his creator. Religion is based on a series of belief or doctrines which are embraced by its followers and it lays down certain ethical rules to be performed, in order to grant god’s satisfaction that is the key to open the doors of Heaven.
As India is a vast religion with several religions, the framers of the constitution gave much more importance to religion. Freedom of religion is given to all citizens by the provisions enshrined in article 25 to 28 of the Indian constitution. By virtue of article 25 of the same, it guarantees freedom of conscience and free profession, practice and propagation of religion. The term “conscience” cannotes the absolute inner freedom of the person in believing God and he is allowed to have a faith in religious tenets. At the same time, the term “ practice” is expressed form of ‘ conscience’ and is any practice which is exercised by such religion. From both aforesaid terms, it is cleared that, right to religion is not only the inner aspect of the religion that people perform, but it also entitles people to exhibit the religious practice. The expression ‘ exhibition ‘ indicating some rights including right to religious dress and attire in the prescribed form, come under the purview of right to religion provided by the constitution, provided that they are subject to some restrictions prescribed by the constitution. In ‘Bijoe Emmanual and Ors v. State of Kerala and Ors’ the honorable court upheld that if someone sincerely exercise some kinds of acts believing to be part of his religion, then it is said to be a religious practice which is to be protected from being violated in any way. Expression 1 of the article 25 of the constitution permits sikh community wearing and carrying kripans as it is deemed to be included in the profession of the Sikh religion. If a practice is being exercised in a particular religion from time immemorial, unless it is contrary to public order, court has no power to make a judgment as to whether it is in religious affairs or not?. This concept was developed in the case of A.S Narayana Deekshitulu v. State of Andhra Pradesh & Ors.
No religion has been recognized as an official language of the state as it is described as a secular state. The doctrine of Non-interference by the state in religious matters provides protection to all religions from being curtailed its rights guaranteed under the constitution. In Bommai v. Union of India, the honorable court held that the concept of secularism, in Indian context, doesn’t mean that it is anti-religion, but state is neutrality in the matters of religion and it doesn’t have any involvement in the interest of religion until it is against public order. The aforesaid doctrine also sheds light on the fact that the court too cannot take a decision with regard to religious as to whether a particular practice as essential part of it or not?, but what is asserted as a religious right should not be contrary to public order, morality and health. In Commissioner Hindu Religion and Charitable Endowment, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri-shirur Mutt ( famously known as Shirur Mutt case), the honorable court held that “in the first place, what constitutes the essential part of religion is primarily to be ascertained with reference to the doctrine of that religion itself”.
From the aforesaid judgment, it was clearly convinced that it is not court that decides as to whether a practice is essential to the concerned religion or not, but such religion itself made a doctrine on which it is made so as to examine whether any particular practice is essential or not?.
Right to freedom of religion is guaranteed to all individuals by the Universal Declaration of Human Rights,1948, enshrined in article 18 of the same. This right includes its practice also which is exercised by the concerned religion. Similarly, Article 18 of the International Convent on Civil and Political right guarantees to all the right to freedom of thought, conscience and religion. It includes right to profess and practice the concerned religious rites and rituals as long as it is not against public safety order and fundamental rights of others.
As a positive secular state, the state has limitation in taking decision with regard to any practice that is being exercised in that particular religion. In Ratilal Panchand Ghandi v. State of Bombay, the honorable court held that it is the religion that has right to argue as to which are fundamental aspect of religion or not. No any outside party is allowed to involve in religious matters.
Religious attire in educational institution;
India is a country comprased of religious diversity. Indian constitution provides each religion some freedoms to be performed as part of its practices and obligations and right to profess, practice and propagate is guaranteed under the article 25 of the Indian constitution. The expression ‘practice’ given under the same article, promises the right of exhibition of his religious affairs in different forms with which provisions with regard to public order are not being violated in any way. Being India is described as a positive secular country, all religions prevalent in the country are considered equally and no any religion will be prioritized. Country is always neutrality in the matters of religion.
Actually the term religion is nowhere defined in Indian constitution. It is based on some principles or doctrines which are being exercised by its followers. If any follower of concerned religion, sincerely does any practice believing to be part of religion, that will be regarded as a practice in such religion. Therefore, As per the provisions guaranteed by the constitution, no any authority out of religion can interfere with matters in connection with religion. This concept is developed in the case of Ratilal Panchand Ghandhi v. State of Bombay.
Religious freedom given by the constitution, is not only just inner religious thought, but right of exhibition of practice prescribed by religion. Because the term ‘practice’ connoting the freedom of exhibition of his own religion before the public.Cut short the religion only in the circle of inner faith is inappropriate. Everyman should be permitted in order to perform his religious rites and rituals in the prescribed modes of such religion, provided such matters should not be contrary to some provisions enshrined in the constitution. Merely wearing prescribed religious dress code doesn’t hurt the public order. Because these attires represents a believer’s submission to his or her creator and connection with the faith. Then how it is fair to say that wearing religious attire in government educational institution is against the law?.
For instance, wearing the Hijab is mandatory to all Muslim women in the concept of Islam, because it is clearly stated in Holly book Qur’an through its different verse. All affairs in Islam should be made in accordance with Qura’n and its Sunnah, and the practices which are approved by the followers of such religion for a long time should be considered as part of the religion. In the case of State of West Bengal v. Ashatosh Lahiri the honorable court held that any practice recognized by such religion should be protected. Then, how an outer authority can take a decision with regard to a certain practice in religion, as to whether it is essential or integral part of such religion or not?. There could be a diversity of views with respect to a religious practice, within the religion. Choosing one viewpoint over others may not be correct and it may also pave the way to other problems in religion. So! It is hard to find out the correct viewpoint over others with respect to certain matter in religion, without depending at least upon a proficient person in such religion. Actually courts were not the forums in order to solve the theological questions coming towards them, because they were ill-equipped to discharge such an obligation.
Justice Sudhanshu Dhulia, while proposing to overturn the controversial ban on the hijab in government colleges in Karnataka, said that the Karnataka high court on hijab case could have first examined whether the restriction imposed by the school is valid restriction or not?. It is the policy of the concerned state to protect religions but not to intervene with religious affairs. But nothing can be done in the name of religion which adversely affect public orders which is virtually synonymous with public policy, safety and tranquility. So the restrictions imposed by School authority for not allowing Muslim girls to wear prescribed religious attire inside the class room is violation of fundamental rights of a person guaranteed under articles 14, 19 (1)(a), 21, and 25(1) of the constitution.
Justice Dhulia, in the case of Aishat v. State of Kerala, argued that “Evaluating the right of petitioners only on the touchstone of ‘essential religious practice’ (ERP) was incorrect. Whether wearing Hijab is an ERP in Islam or not is not essential for this dispute, if the belief is sincere and it harms no one else, there can be no justifiable reason for banning Hijab in class room”. Actually the entire concept of essential religious practice is not essential and examination of wearing Hijab by the same doctrine was wholly redundant, in his point of view.
He further said that the current issue is not needed to be compared with Kripans of Sikh community and need not to be proved as to whether it is essential religious practice. Additionally this present issue also dealing with fundamental right of a person guaranteed under article 19(1)(a) of the constitution i.e. freedom of expression. This right includes the expression of one’s ideas through any communicable medium or any other visible representations.
The case ‘Tinker v. Des Moines Independent Community School’ more or less, shedding light on the fact that the restrictions imposed by the officials of school, upon the student should be reasonable. In the case, Mary Beth Tinker and a group of students were suspended from school for wearing black armband in the name of protest the war in Vietnam. The honorable court held that the school officials could not censor student expression unless it disrupted the educational process and restriction imposed by school was held to be unreasonable as it caused to violate student’s freedom of speech and expression. Like, in this current issue, Devadatt Kammath, appearing for the petitioner Aishat Shifa, claimed that wearing hijab should be considered as right to expression guaranteed under article 19(1)(a) of the constitution. In addition to that,It was submitted that the settled position of law is that the restriction on fundamental rights can only be imposed by a statutory law and not by executive order.
Why hijab is important in Islam;
Religion Islam has it’s own viewpoint in all matters with regard to human life, especially in dressing style of such people who belonged to this religion. As a Muslim woman, it is the obligatory upon her to wear hijab, especially when she goes out of house as it is the religious obligation and it represents a woman’s submission to her god and her connection with her faith. If the records of Islamic history is turned over, one thing is cleared that the hijab is a religious prescribed attire which has been worn by Muslim women from time immemorial. There is no any scholarly differences in the matter of hijab is mandatory to all Muslim women. In order it to be strengthened, reference of hijab can be found in in multiple place in Qura’n and in other authentic writings. Muslim women have been asked to cover their heads, in the Qur’an by means of veil, then and there. Some Surahs such as Surah- Al Ahzab, Surah- Noor and so on shed light on the compulsory of Muslim women wearing hijab. Qur’an says that; ‘ O” prophet, tell your wives and your daughters and the women of the believers to draw their cloaks round them (when they go abroad). That will be better, so that they may be recognized and not annoyed. Allah is ever-forgiving, merciful (Qur’an: 33:59)
In the 1400 year history of Islam, there has never been any controversy with regard to the hijab for Qur’an itself emphasizing the prominent of wearing hijab among Muslim women. Akhtar-ul-Wasy former head of the Department of Islamic studies, Jamia Millia, said while raising controversy regarding expulsion of Muslim girls in the wake of Hijab ban,that Muslim girls students may be allowed to cover their head with uniform coloured cloth as is done by the Sikh community. Then he further continued that women of Rajastan and Brij wear veil in India, what would you call it? This is the Indian culture. Ashraf Usmani, spokesperson of Darul uloom at Deoband argued that What mentioned in the Qur’an is a duty, whether it is prayer, fasting, Zakat or Hajj. In this point of view, Hijab, mentioned in Qur’an is also considered as a duty of believers to be followed as a religious practice.
India stands for a positive secular state. All existing religions in India will be treated equally and not prioritizing any specific religion over others. State always neutrality in the matter of religion. Every individual is given some rights with regard to his religious matters and they will not be infringed by no means, unless and until they are contrary to public orders and other provisions prescribed by the constitution. The doctrine of non-interference by the state in religion, more or less intercept the state from involving in the matter of religion and taking decision as to whether a particular practice is in integral part of religion or not.
Constitutional Law of India by Dr.J.N Pandey
Introduction to the constitution of India by Durga Das Basu
Constitutional Law by D.r Myneni
AIR 1954 SC 388
1978 AIR 748, 1986 SCR (3) 518
1995 AIR 464, 1995 SCC (1) 189
AIR 1994 SC 1918
Author: FAHAD Ap,
Markaz law college, At Knowledge city