Judicial Intervention in Religion: Defining new Religious Freedom

Judicial Intervention in Religion: Defining new Religious Freedom

Author: Krishna BhattacharyaKIIT school of law, Bhubaneshwar, India

India is a secular country and the judiciary has a paramount duty to maintain the status of secularism. There is heavy literature on secularism such as of Donald Eugene Smith who gave a model of secularism where three types of relationships were recognized. In these relationships, the third person was not allowed to interfere. The three types of relationships are as follows:

  1. Freedom of religion- These relationships exist between individuals and the religion they adhere to.
  2. Citizenship- This relationship exists between the State and the individuals.
  3. Separation of the church and the State- This relationship exists between the State and religion.[1]

Countries such as France and the US till date follow this policy but due to globalization and migration of people from one part of the world to another have put much strain into this policy.[2] Especially in India where secularism and religion are so much intermingled and entangled with each other.[3] It is interesting to note that though India is a secular State still people are so much associated with a religion that even a small conflict can turn out to be religious conflict. There is constantly a tussle between majority religion and the minority religion. The role of the judiciary in this tussle is analyzed in this article by asking five simple questions.

  1. How courts previously decided on matters of religion?

The courts earlier tried to refrain as much as they could from deciding religious matters but gave progressive judgments keeping in mind the social upliftment and the social impact.

One of the first cases was that of Narasu Appa Malli Case[4] wherein the challenge before the Hon’ble Supreme Court was with regard to with prohibition of polygamy among Hindus. The court specifically said that it would not interfere with religion but at the same time also upheld the constitutionality of prohibition of polygamy among Hindus as personal laws are distinct from customs or religious practices and marriage fell within the ambit of personal laws. 

In another case in Hinduism father is the natural guardian but the court interpreted that after father’s mother is also regarded as guardians.[5] This judgment was delivered to give equal status to women.

  • How courts recently deal with matters of religion?

Recently, the courts are delving much more into religion and many petitions related to religious matters are being filed in the High Courts and as well as in the Supreme Courts. This trend can be traced when the Hon’ble Supreme Court held that Hindutava is a way of life and it cannot be termed as a religion.[6] The Supreme court choose a slippery path by defining what a religion is. Religion per se is a way of life and giving judgment in favor of Hinduism is somehow shadowing the secular nature of India. The Supreme court recently is getting more and more influenced by the Hindutava than it should be. Upholding the prohibition of cow slaughtering is a prime example. Though the Supreme court based its justification on agrarian conditions but the chain of events and the underlying moto suggests otherwise as when the BJP government came into force one of their propaganda was the prohibition on cow slaughtering. This was not just it, the supreme court went one step further ahead and declared that slaughtering cows on “Bakri ID” which is being practiced for years is not an essential religious practice to Islam.[7]

The courts seem to have self-imposed a duty upon themselves to dictate what people should believe in or not as in the case of Sabrimala and the case on Babri Majid. This aspect is dealt with in the later headings.

  • Should courts at all in matters of religion?

Matters of religion and faith are very sensitive and it won’t be wrong to say that are also politically motivated matters. The Hon’ble Supreme and the High courts have a duty[8] to deal these matters with care and caution as it involves the fundamental right to religious freedom[9].

The courts have to draw a fine line between when a religious practice harms one’s fundamental right or is the practice so obnoxious that it is against the morale and harming the society and when to refrain from interfering in matters of faith. This is indeed a grey and complicated area.

The court cannot always refrain from interfering with religious matters because then people’s rights would be violated. For example, Sati was a practice that was given a religious color and was practiced for many years. But the legislation was brought it to prohibit it. This was done for the sole reason of upliftment of the society. This is where the concept of “essential religious practice” developed. The courts can interfere in non-essential religious practices where it outrightly or on the face of it is seen to be wrong. But again the problem arises to determine the essential religious practice, the courts have to delve deep into the religion to truly know the essence of it and only then it will be able to determine whether the practice is essential or not.

When India was ruled by the British at first they took the help of the pundits and the Kazis or religious heads or person of authority to interpret a particular text. But later on, this system was abolished and the British judges themselves took the task to look into the religious texts. Their reading was biased as their background was firmly attached to their own common law principles. The same task is now done by the Courts in India. Seeing the recent judgments it seems that judges are also bias towards majority religion or maybe their own religion.

  • What is the impact in society with this intervention?

In the case of Sabrimala[10], the Supreme court had indeed crossed its line far beyond to maintain distance from religious matters. The women in the temple were not wholly restricted and no physical harm was done to them. In many parts of India, there are many temples where women are not allowed. Religious practices and beliefs cannot be qualified with equality. Justice Indu Malhotra, the lone dissenting judge rightly pointed out that no devotee of Lord Ayappa had filed any objections, the case was filed in public interest who were not even devotees of the Lord Ayappa. She rightly said, “In matters of religion and religious practices, Article 14 (equality) can be invoked only by persons who are similarly situated, that is, persons belonging to the same faith, creed, or sect”. She  also added: “The right to practice one’s religion is a fundamental right guaranteed by Part III of the Constitution, without reference to whether religion or the religious practices are rational or not.”

The judges erred in seeing the fact that just because the temple was funded by the government it can come under the ambit of fundamental rights ( as fundamental rights are a restriction on the government)[11]. But the greatest fallacy was that Governments cannot own temples because if it does so the secular nature of India gets disrupted and even if it does, it does in the capacity of a trustee not as an owner or dictator. The courts want to implement an anti-discriminatory religion but they tend to forget that this is not possible because these religions are built for thousands of years and in fact, it is widely accepted that religion is the antithesis of logic.

The judgment of Sabrimala caused so much chaos that the temple had to be shut for almost more than a month. The peaceful place had suddenly become violent.

In the case of Babri Masjid[12] the longest case in the history of India, the Supreme court decided the birthplace of God, i.e Lord Rama. The court erred getting into the religious matters and upon that decided birthplace of God whereas God is omnipresent.

This trend adopted by the courts should be curbed at the earliest because a day will come soon where the courts would rewrite the religious texts and if this happens the country will no longer be a secular one.

  • Is this intervention further adding to the problem of defining new terms of religion?

This trend of the Supreme court is only serving the interest of certain people of the group rather than mitigation of social evils. The judgments also reflect the bias of judges, for example, justice Katju termed young men with beards as “Talibanization”[13]. In India the system of the jury was abolished for the reason that trained judicial mind are above bias than a layperson but seeing the present situation it seems contrary. The present Supreme Court has to realize that they cannot dictate an individual what to believe in and what not to and how to believe. The court needs to remember that fundamentals rights are not a restriction on the individuals but the government.

The courts need to stop defining a new religion for the people and should focus on matters which are pending for years in the courts and should try and clear the backlog of cases instead of just defining what religion is.


[1]Ronojoy Sen, Legalising Religion:The Indian Supreme Court and Secularism, ( East West Centre Washington, p.15) available at<http://www.eastwestcenter .org/sites/default/files/private/PS030.pd/www.eastwestcenter .org/sites/default/files/private/PS030.pd>( accessed on 26.12.2019).

[2]Rajeev Bhargava, States, Religious Diversity and the Crisis of Secularism, available at http://www.opendemocracy.net/ rajeev-bhargava/states-religious-diversity-and-crisis-of-secularism-0 (accessed on 26.12.2019).

[3]Ronojoy Sen, Legalising Religion:The Indian Supreme Court and Secularism, ( East West Centre Washington, p.12) available at<http://www.eastwestcenter .org/sites/default/files/private/PS030.pd/www.eastwestcenter .org/sites/default/files/private/PS030.pd>( accessed on 26.12.2019).

[4]The State Of Bombay v. Narasu Appa Malli, AIR 1952 Bom 84 (1952).

[5]Githa Hariharan v. Reserve Bank of India, 1999 2 SCC 228 (1999).

[6]Dr. Ramesh Yeshwant Prabhoo v. Shri Prabhakar Kashinath Kunte & Others, 1996 SCC (1) 130 (1996).

[7]State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat & Ors.,(2005) 8 SCC 534(2005).

[8]Art.32 &226 of the Constitution of India, 1950.

[9]Art.25 of the Constitution of India, 1950.

[10]Indian Young Lawyers Association v State of Kerela, Supreme Court, Writ Petition ( Civil) No.373 of 2006.

[11]Art.14 of the Constitution of India,1950.

[12]M.Siddiq v Mahant Suresh Das &ors, Supreme Court, Civil Appeals no. 10866-108667 of 2010.

[13]Express India News Service, SC Judge Apologises For ‘Taliban’ Remark On Muslims, July 6, 2009, available at<http://www.expressindia.com/latest-news/SC-judge-apologises-for-Taliban-remarks-on-Muslims/485727/2/>( accessed on 27.12.2019).

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