In India, there is always a surge of emotions whenever there is a debate regarding the conflict between right to freedom of religion and restriction imposed on religious practices. This has been witnessed several times since independence be it the case of Sati pratha in the late 1980’s or even the more recent scenarios involving Jallikattu or Santhara or even the issue of Triple Talaq. In all the situations there has been an argument of protection of these religious practices or rituals or customs under the premise of Right to freedom of religion guaranteed under the Constitution. But for this argument to succeed it is very important to understand the scope of right to freedom of religion as guaranteed by the constitution. We need to analyse when, can a religious practice be protected under Right to freedom of religion.
In the Constitution of India, 1950 the Right to Freedom of Religion is covered under Article 25 to 28 with Article 27 and Article 28 basically catering to Freedom as to payment of taxes for promotion of any particular religion and Freedom as to attendance at religious instruction or religious worship in certain educational institutions, not dealing with religious practices and rituals. Article 25 and 26 deal with religious practices, wherein Article 26 gives right to religious denomination to manage its own affairs in matters of religion whereas Article 25 talks about right of all persons to freedom of conscience and the right freely to profess, practise and propagate religion. Article 25 is more specific to individual’s right whereas Article 26 relates to religious denominations. For the purpose of this blog I will restrict my discussion to Article 25 which deals with an individual’s right to freedom of religion.
For the purpose of defining the scope of right to freedom of religion it is very important to know what it is subject to. Article 25 clearly puts forth that the right to freedom of conscience and the right freely to profess, practise and propagate religion of an individual is subject to public order, morality and health and to the other provisions of Part III dealing with fundamental rights. Thus if a religious practice or ritual is contrary to public order, morality, health or even any other fundamental right it is not protected under Article 25. But in such a scenario most if not all the religious practices might not be protected under right to freedom of religion. This is where the Court has defined the scope of protection under the right to freedom of religion. Like, in the case of Dr. M. Ismail Faruqui and Ors. v Union of India & Ors it was held that the protection under Articles 25 of the Constitution is with respect to religious practice which forms an essential and integral part of the religion. A practice may be religious practice but not an essential and integral part of practice of that religion. The latter is not protected by an article. Now the question might come up what is considered as an essential or an integral part of the religion. To answer this the court in the case of Seshammal v. State of Tamil Nadu said that what constitutes an integral and an essential part of the religion or a religious practice has to be decided by the courts with reference to the doctrine of the particular religion.
Moreover, the Court in State of Bombay v. Narasu Appa Mali where it was observed that “sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is religious faith and belief. If religious practices run counter to public order, morality or health or a policy of social welfare upon which the State has embarked, then the religious practices must give way before the good of the people of the State as a whole. Furthermore, in the case of Javed & ors. v State of Haryana & ors it was observed that what is permitted or not prohibited by a religion does not become a religious practise or a positive tenet of a religion. A practice does not acquire the sanction of religion simply because it is permitted. Adding on the court said that the right of the State to impose such restrictions as are desired or found necessary on the grounds of public order, health and morality is inbuilt in Articles 25 and 26 of the Constitution of India. The religious practice which forms an essential and integral part of religious is protected. A practice may be a religious practice but not an essential and integral part of the religion.
Now analysing, the practices of Santhara or jallikattu or Triple Talaq as integral or essential to their particular religion is highly debatable. Just because a religious practice has been going on for ages hold no ground before the eye of the law as long as it is not essential or integral to the religion. Thus, a religious practice like Triple Talaq which is blatantly against Article 14 of the Constitution can only be protected if the Court of law finds it essential or integral to the religion. Also, Article 25 provides for making of any law by the State for regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice. This is in order to to curb religious rituals or practices which are against public order, morality and health or contrary to any other fundamental right.
In conclusion, the Constitution of India guarantees freedom of conscience and free profession, practice and propagation of religion under the heading Right to Freedom of Religion, subject to public order, morality and health and to the other fundamental rights. The Courts have restricted the protection of religious practices to only those which are integral or essential to the religion if such practices are in contravention to public order, morality and health and to the other fundamental rights.