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ABHIK CHIMNI | 15 OCTOBER, 2016

The Question Of Religious Freedom And The Law In India


NEW DELHI: Several cases in the Supreme Court today highlight the contention between the constitutional promise of religious expression and the freedom of the individual to pursue life, as one deems right. This is a contention that has a long history in modern India. Religion, long considered a central motif of Indian life has maintained its space in politics. And the recent state sponsored narrative of Hindu nationalism shows that the political class believes religious beliefs and practices can define the Indian voter.

It is in this context that the following legal events are of great significance.

Late September 2016, eighty three year old Suhani Devi Dugar in an advanced stage of cancer embraced the Jain practice of Santhara. On her tenth day of fasting she passed away at her residence in Kolkata. The Jains recognize this ritual as a voluntary act whereby in a final act of spirituality a person fasts till inevitable death. The effect is that of accelerating the process of natural death.

However, only a year ago on 10th August 2015, the Jaipur bench of the Rajasthan High Court directed the state to abolish this practice of Santhara. The court recognized this act as amounting to suicide. Later that year the Supreme Court stayed the order thereby restoring this practice. This was done as an interim measure; the court is yet to hear the matter at length.

Again, this month a 13-year-old Jain girl Aaradhna fasted for 68 days during the holy period of Chaumasa. Few days later she suffered a cardiac arrest and died. The case of Aaradhna is not an act of Santhara, but a case where fasting led to the untimely death of healthy individual. The Hyderabad police have registered a F.I.R. under section 304 of the I.P.C. (culpable homicide not amounting to murder).

In September of 2016, the Bombay High Court found the practice of banning women from entering into the inner sanctum of the Haji Ali Dargah as violating article 14 (right to equality and non discrimination) and 25 of the constitution (right to religious freedom).

In October, the Central Government filed an affidavit in the Supreme Court, stating that the practice of triple talaq is detrimental to the goal of gender equality and individual liberty. The Muslim Law Board argues that this tradition is a constitutionally valid manner of religious expression.

The courts being the final interpreter of the constitution are responsible for determining religious practices to be protected. Pratap Bhanu Mehta sums up the role of the courts as simultaneously performing two functions, first, to protect religion and the second to regulate it. That is to balance the objective of social reform and modern ideas of justice with the protection of religious expression.

The principle manner through which the court has tried to do this is by applying the “essential practice test”. Through this test the judiciary seeks to guarantee protection to those practices that are fundamental and inalienable to the core beliefs of a religion.

In order to ascertain whether a particular act is essential to a religion, judges scrutinize scriptures, doctrines of the religion, the various tenants and the historical background. For instance in 1958 the Bihar Preservation and Improvement of Animals Act, 1955 was passed which sought to ban slaughter of cow, bull or bullock. The members of the Qureshi community approached the court claiming violation of Article 14 (equality), 19 (1) (g) (freedom to practice any trade or profession) and 25 (religious expression). The petitioners made the argument that the religious practice of sacrificing a cow on Bakr Id day must be protected under Article 25 of the constitution.

The court while rejecting this argument stated that the petitioners have not shown any particular sulah of the Quran requiring the sacrifice of a cow. Then Chief Justice Sudhi Ranjan Das invoking Indian history factored in Emperor Babar’s decision of prohibiting the slaughter of cows by way of religious sacrifice. Similarly Nawab Hyder Ali of Mysore banned cow slaughter and the 1953 Gosamvardhan enquiry committee set up by the Uttar Pradesh Government consisting of Muslim members unanimously concurred with the recommendation of banning cow slaughter. The court concluded that the act of cow slaughter could not be seen to be an essential religious practice.

However, the petitioners did find relief under Article 19 (1) (g) where the court held that the ban on ‘she’ buffalos, breeding bullocks and working bullocks without prescribing any test to their age and usefulness would infringe the petitioner’s right to practice trade or profession of their choice

Similarly, in 1983 the “Anand Marga” a socio-spiritual organization sought protection under the constitutional right of religious expression to perform a public dance that involved carrying lethal weapons and human skulls. The Supreme Court of India stated that Anand Marga is not a separate religion but a denomination that subscribes to Hindu religion and philosophy. It was held that the Tandava dance could not be said to be an essential rite.

Both in the case of Santhara and the ban on women from entering the inner sanctum of the Haji Ali Dargah the Jaipur and Bombay High Courts respectively held the acts as not being essential religious practices. Now these issues lie sub judice in the Apex Court.

On the issue of triple talaq the affidavits submitted by the Central Government in the Supreme Court would also suggest arguments based on equality, social reform and gender justice.

It is also to be mentioned that in context of personal law the Centre wants to push for a uniform civil code. However, the government seems to be befuddling the notion of uniformity with the constitutional right of equality. It is to be considered that the Constituent Assembly recognized the need to protect minority religious communities. For example, the constitution specifically provides the right of minorities to establish and administer educational institutions and also the right to preserve their culture, language and script. That is not to say that there should not be equal reform across religions, but that it should not be enforced in a manner, which fails to address rights of all communities.

(Abhik Chimni is a lawyer)

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