Context:

On May 17, the Madurai Bench of the Madras High Court allowed the resumption of “annadhanam” (offering free food) and “angapradakshanam” (circumambulation) at the final resting place of Nerur Sathguru Sadasiva Brahmendral on the eve of his Jeeva Samathi day.

Debating Rituals From Superstition to Sacred? 

The Complex Intersection of Religion and Law

“What is religion to one is superstition to another,” said Chief Justice Lathman of Australia in Adelaide Company of Jehovah’s Witnesses Inc vs Commonwealth (1943). Religion has been central to human society since time immemorial. Man is inherently religious, and this is especially true for Indians. Right now, we are in a rush hour of god with religiosity on the rise and spirituality on the decline.

In P. Navin Kumar (2024), Justice G.R. Swaminathan of the Madras High Court permitted angapradakshinam, where devotees roll over banana leaves used for partaking food. This overturned Justice S. Manikumar's 2015 decision, which had been based on claims of caste discrimination and a Supreme Court order staying a similar ritual. Justice Swaminathan noted the inclusion of various castes and the absence of temple trustees in the previous case, negating discrimination claims.

Revival of a Debate

This order reignited the debate on defining religion, determining essential practices, and judicial consistency. Justice Swaminathan cited Supreme Court judgments to conclude that petitioner P. Navin Kumar's vow to perform angapradakshinam is protected under Articles 25, 21, and 19(1)(d) recognizing angapradakshinam as an established religious practice without strict evidence, noting that references in the Krishna Yajur Veda and Bhavishyapurana describe it as noble, but every noble act cannot get the high status of a mandatory act.

Ethical Issues and The Subject of Essential Practices

The Indian Constitution prioritises fundamental rights over the freedom of religion, allowing state intervention for public welfare and social reform. Religious morals derive from divine teachings, guiding believers, while secular ethics rely on human reason, empathy, societal values, and fairness considerations. Some religious and customary practices may compromise human dignity and equality rights.

Accordingly such a plea was accepted in just seven out over 47 cases and that is why the latest pronouncement, by Justice Swaminathan needs critical evaluation, such as:

• Is rolling over used banana leaves with leftover food an unhygienic practice posing health risks?
• Can the right to privacy be claimed in a public event like angapradakshinam?

Justice Swaminathan observed that privacy is not forfeited in public and analogized that if the right to privacy includes sexual and gender orientation, it also includes spiritual orientation. Individuals can express this orientation publicly, provided it respects others' rights.

Judiciary on Religion and Essential Practices

Sri Shirur Mutt (1954)

The leading Supreme Court judgement on religious freedom in 1954, affirmed that Article 25 guarantees freedom not only to entertain religious belief as may be approved of by one’s judgement and conscience, but also to exhibit his belief in such outward acts as he thinks proper. The Court emphasised that determining the essential parts of religion must reference the doctrines of that religion. However, the Court's approach shifted in subsequent years, often incorporating its own rationality rather than relying solely on religious texts.

The Durgah Committee, Ajmer (1961)

In The Durgah Committee, Ajmer (1961), the Court ruled that only essential and integral religious practices are protected, excluding those stemming from superstitious beliefs. This rationale was not applied to angapradakshinam.

Gramsabha of Village Battis Shirala (2014)

In Gramsabha of Village Battis Shirala (2014), capturing and worshipping a live cobra was deemed non-essential despite claims based on Shrinath Lilamrut. The Court prioritized the general Dharmashastra text over specific sectarian texts.

Mohammed Fasi (1985)

In Mohammed Fasi (1985), a Muslim police officer's plea to grow a beard was dismissed based on irrelevant observations about other Muslim dignitaries and the petitioner's past practices, rather than the essentiality of a beard in Islam. Similarly, the hijab was not found mandatory.

Acharya Jagdishwarananda Avadhuta (2004)

In Acharya Jagdishwarananda Avadhuta (2004), the Supreme Court overruled a decision that recognized the tandava dance as essential to the Ananda Margi faith, citing the practice’s later adoption. This approach implies that only practices existing at a religion's inception are integral, potentially excluding many evolving practices.

M. Ismail Faruqui (1995)

The ‘essentiality test’ reached a controversial conclusion in M. Ismail Faruqui (1995), where the Court ruled that while prayer is essential, praying in a mosque is not, unless the place holds specific religious significance. This decision overlooked the central role of mosques in Islam.

Addressing The Issues of Derogatory Human Dignity in Customary and Religious Practices

• State Responsibility to Implement Changes: It is the duty of the State to reform religious and customary practices, such as rolling over leftovers, that are unhealthy, harmful, and undermine human dignity.
• Educate and Raise Awareness: Instead of outright rejecting such practices, which could cause controversy, the State should educate believers through reasoned and rational discussions, fostering a humane community open to inquiry.
• Ensure Judicial Consistency: The significant divergence in judicial opinions regarding the applicability of Fundamental Rights to Personal Laws in India needs resolution. Consistency in judicial decisions must be maintained.
• Emphasize Constitutional Morality: Constitutional morality provides a framework for governance principles and sets norms for institutions to follow, ensuring proper functioning. The Supreme Court has used this principle to effect social change, such as decriminalizing homosexuality.
• Eliminate Discriminatory Practices: Personal laws of various communities are currently governed by religious scriptures. The Law Commission should aim to eliminate practices that do not meet constitutional standards and are derogatory to human values. Cultural practices must align with goals of substantive equality and gender justice.

Conclusion

Judges should not become the clergy to determine purely theological issues and that a progressive nation such as India should not allow even an essential religious practice if the same is contrary to constitutional ethos and values. It is the Constitution of India and not religions that should govern us. Only that much religious freedom can be granted as is permitted by the Constitution.

Source: The Hindu