Tanishk Goyal, Naman Agarwal and Rishabh Singh

It is quite perspicuous that three of the honourable judges prescribed to the populist understanding and definition of the little enhanced arena of constitutional morality by pronouncing that it reigns over the religious rights of an individual or for that matter a denomination in itself

II.The Arbitrary nature of the Essential Religious Practice Test

The Essential Religious Practice Doctrine, or the Essentiality test was propounded by the Supreme Court in the Shirur Matt case[1], where although court held that what constitutes an ERP shall be determined by the tenets of the religion itself, it failed to harmonize this test with the fundamental rights in Part III. This essentially gave rise to the debate, as to which right between non discrimination (Article 14) and freedom of religion (Article 25&26) should be given precedence. In the case of Sardar Syedna Tahir Saifuddin Saheb v. State of Bombay[2], it was laid down that fundamental rights under Article 26(b) were not subjected to the preservation of civil rights of an individual, and that excommunication constituted an ERP of the Dawoodi Bohra denomination. The court also stated that, “A denomination has a right to ensure its existence by adherence to its tenets and practices by such suitable action.” However, in contrast, in the case of Acharya Jagadiswaranand Avadhuta vs. Comm. Of Police Calcutta[3], the court refused to recognize the tandav of the Anandamargi community as an ERP, the reason, inter alia being the fact that the said practice was a recent one. The court has, on numerous occasions, refused to grant the followers of a particular practice, the status of a separate denomination, sometimes on the pretext that  such claims were based on superstition.[4] The courts have made the judges assume the role of the prophets, where they get to deliberate on the very existence of certain religious denominations and the essentiality of their practices their beliefs, thus deciding for them, whether their beliefs constitute a religious denomination or merely a philosophy.

Against the backdrop of these court decisions, which demonstrate the risk of inconsistent outcomes, it is our view, that the ERP test needs a substantial overhaul. It should no longer be the job of the courts to regulate and determine the existence of religious denominations or the essentiality of their practices, unless such practices are contemporarily invalid. Illustratively, the Supreme Court, while imposing a partial ban on fire crackers, in the case of Arjun Gopal v. UOI [5] had laid down, that if a particular religious practice is threatening the health and lives of the people, such practice shall not be entitled to protection under Article 25 of the Constitution. Interlinking the decision of the court in the above case with the “pernicious and oppressive” practice test laid down by Justice Malhotra in her dissent[6] we uggest a ‘Contemporary Validity Test’ which would essentially be a two-tier test. The first test for determining contemporary validity would be a Life Threatening Practice Test (“LTP”). Using the LTP, the court would determine whether the practice has assumed a life threatening character or not. If it has, the court would be justified in intervening and striking down such a practice. However, if the practice has not attained a life threatening character, the court should look towards the twin tests of public order and morality for establishing contemporary validity. The rationale for the said test is that while Courts are well placed to determine the contemporary validity of a religious practice, they lack the requisite expertise to determine the essentiality of a religious practice, which should in any event remain the sole prerogative of the religious denomination (Refer to Part VI). Therefore, in rendering decisions on validity of religious practices, they should adopt a test akin to the Contemporary Validity Test rather than the ERP Test. The backdrop of this test emerges from the illustration of Sati, as given by Justice Malhotra, where the interference of the courts was justified, as the practice was affecting the lives of innumerable women at large, and was largely and contemporarily invalid.

Now, we seek to illustrate contemporary cases, where we feel that the interference of the court, into the religious matters of a denomination was justified under the CVT doctrine, and cases where it was not.

The case of Sunita Tiwari vs Union of India[7], where a plea has been filed in the Supreme Court to ban the practice of “Female Genital Mutilation”which is considered to be an ERP by the Dawoodi Bohra Community, has now been referred to a larger bench in order to determine the essentiality of the said practice. This case illustratively exemplifies the fundamental lacunae which exist regarding the recognition of religious rights of a community and attempting to harmonize them with the individual rights of the people, in as much as, the FGM practice involves the use of weapons on the genitalia of young females. It also amply exemplifies the narrative, that there is an imperative need to do away with the ERP test for practices which are so evidently life threatening in nature, and thus contemporarily invalid.

In the case of Nikhil Soni v. Union of India[8], it was held by the High Court of Rajasthan, that the practice of Santhārā amounts to a punishable offence under S. 309  & S. 306 of the IPC and does not form part of the essential religious practice of Jainism under Article 25 of the Constitution. This particular practice was of a life threatening character and therefore, the interference of law, in the religious practice of the Jains, was justified. The examples of the cases above are merely indicative of the need to have a Contemporary Validity Test, and are not exhaustive in any manner.

Viewing the ban on the entry of women in the Sabarimala Temple through the prism of the CVT, we suggest that Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965,[9] in no manner contemporarily invalid, as neither does it  endanger the life of any individual, nor does it violate public order or morality (Part III). It is pertinent to note here, that the threshold for applying the doctrine of public order needs to be in consonance with the threshold set by the Supreme Court in the case of Shreya Singhal vs Union of India[10], where the court said that “mere annoyance could not be elevated to the threshold of disrupting pubic order.”Thus, in the Sabarimala Case, the interference by the court does not come under any of the contours of the CVT, and therefore the said interference was not justified.

III.Constitutional Morality Vis a Vis The Contemporary Validity Test

While ascertaining the contentious verdict, the honourable judges of the Supreme Court resorted to one of the grey areas in the judicial determination procedure with respect to the touchstone of constitutional morality.

It is quite perspicuous that three of the honourable judges prescribed to the populist understanding and definition of the little enhanced arena of constitutional morality by pronouncing that it reigns over the religious rights of an individual or for that matter a denomination in itself and thus ruled in favour of allowing women inside the Sri Ayyappa temple at Sabarimala.[11]

Right to equality and non-discrimination are certainly the subject matter of constitutional morality but so is the freedom of an individual to practice their faith in accordance with the tenets of their religion, forming an impactful facet under the doctrine of constitutional morality and under the international obligations of India under the ICCPR and the ICESCR.[12] This brings in an essential question that is, whether, in matters of religious faith, religious practices and the beliefs of a particular community, can the concepts of equality and non-discrimination or the concepts of religious freedom be viewed in absolute isolation?

While, on the other hand, one of the minority observations concerning Constitutional Morality in the Triple Talaq Judgment[13] was that personal laws have certainly been elevated to the stature of independent fundamental rights under the constitution of India and thus religious rights under Articles 25 and 26 cannot be tested against constitutional morality. This particular stance of religious rights superseding constitutional morality could be attributed to the majority of the judges on the bench. However, it is our view that the essence of constitutional morality is not in absolutism, it is in harmonious construction. So, what emerges in true essence is the meaning of constitutional morality pertaining to harmonization of fundamental rights without giving precedence to one over another.[14]  We consider the dissenting opinion of Malhotra, J. on this line of argument, laying down that morality in a secular constitutionality enshrines the liberty of an individual to undertake their religious affairs irrespective of them being rational or not, as a step forward in the right direction, preserving the sanctity of India as a multi-religious and pluralistic polity and further preventing the opening of flood-gates challenging plethora of religious practices in the country[15]. However, neither the dissent, nor do we advocate for absolute non-intervention by the courts in the religious affairs of a particular community. We seek to establish that the CVT and the Theory of Transformative Accommodation (as explained later in Parts IV and V) are the essential pillars for ensuring that the essence of constitutional morality is not lost while deciding between individual and religious rights.

In a matter of two verdicts (Sabarimala & Triple Talaq), three different interpretations of constitutional morality have been witnessed. Notwithstanding the above contentions, constitutional morality, which has its roots in the constitution, remains a dark side and lacks concrete jurisprudence. Though the judicial procedure permits subjective application of a principle, the lacuna here is the inherent ambiguity in the principle of constitutional morality itself and hence the jurisprudence demands a stable doctrine as far as constitutional morality with regard to religious affairs is concerned.

Our view here is that, while establishing a stable doctrine on the touchstones of harmonious construction, the court should draw a parallel between the essence of constitutional morality and the proposed CVT. On analysing the precedents, it unequivocally emerges that the courts resort to the argument of constitutional morality whenever aspects of gender equality, dignity, ground social and structural realities of a secular polity like India is brought into questioning. This scrutiny through the lens of constitutional morality becomes even more pervasive especially, when various places of worship of diverse religions having their own customary values, traditions and faiths, are parties to the conflict. This scrutiny transforms the facet of constitutional morality into a standard, which should be met by the life practices of the citizens, and thus be in consonance with the essence of the constitution itself. Further, as explained, evaluating the practices in contention on the basis of the proposed CVT, it establishes a more acceptable gauge and escalating the ladder of quality jurisprudence, the CVT filtration constitutes a consequence that traverses into the real world.[16] Thus, the courts by reading into constitutional morality the concept of CVT, can seek to achieve the objective of harmonious construction, which is quintessential for upholding the tenets of the constitution.

This is the 2nd part of the series of posts on Deconstructing the Sabrimala Dissent.

Click here to access the 1st part – Deconstructing The Sabarimala Dissent (1/3): An Analysis of the Essential Religious Practice (“ERP”) Conundrum

Click here to access the 3rd part- Deconstructing The Sabarimala Dissent (3/3): Overcoming Multicultural Vulnerability through the Principle of Transformative Accommodation

[1] The Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar Of Sri Shirur Mutt, 1954 AIR 282.

[2] Ardar Syedna Taher Saifuddin Saheb vs. The State of Bombay, 1962 AIR 853.

[3] Acharya Jagadiswaranand Avadhuta vs. Comm. Of Police Calcutta, 1984 AIR  512.

[4] Sastri Yagnapurushadji And Others vs.Muldas Brudardas Vaishya, 1966 AIR 1119.

[5] Arjun Gopa vs. Union of India and Others (2017).

[6] Indian Young Lawyers Association & Ors. vs. The State of Kerala & Ors, 2018, p388 (per Indu Malhotra, J).

[7] Sunita Tiwari vs. Union of India WP(C)No.286/17

[8] Nikhil Soni v. Union of India (2015).

[9] The Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965, §3(b).

[10] Shreya Singhal v. Union of India AIR 2015 SC 1523.

[11] Economic and Political Weekly, Vol. 43, No. 40 (Oct. 4 – 10, 2008), pp35-42.

[12] International Covenant on Cultural and Political Rights, Article 18 [ICCPR]; International Covenant on Economic, Social and Cultural Rights, Article 2 [ICESCR].

[13] Shayara Bano vs. Union of India (2017).

[14] Supra note 6.

[15] Markandey Katju, A Dissenting View, October 13,2018, available at https://www.thehindu.com/opinion/op-ed/a-dissenting-view/article25114433.ece (Last visited on 28th February 2019).

[16] Supra note 6.

Tanishk, Naman and Rishabh are students of  WBNUJS Kolkata, NLU Delhi and Faculty of Law, Allahabad University, respectively.

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