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Religion and Right to wear dress based on Religious Injunctions
Author: Kush Kalra, Practising in Delhi High Court Admirer of Shri Fali S. Nariman. Excerpts from the autobiography “Before the Memory Fades” of the Living Legend of Law Shri Fali S. Nariman
India is a secular State and secularism is its constitutional goal. Secularism is part of the basic structure of the Constitution. Article 25(1), while allowing the freedom of conscience and the right to profess, practice and propagate religion, reserves the State’s right to interfere with the religious matters, if it involves an issue relating to public order, morality and health.
Article 25(2) also enjoins the State legislative power to make regulations or restrictions on any economic, financial, political or other secular activities associated with religious practice. Article 25(2) of the Constitution, in fact, creates a dichotomy between religious affairs and secular activities which may be associated with religious practices. The Constitution makers were conscious about characteristics of the religions prevalent in India. The religion covers every aspect of life, from birth to death. However, constitutional philosophy is to have a separation of secular activities associated with the religious practices. Article 25(2) clearly alludes to the underlying philosophy as above. The State is not immune from making legislation in relation to economic, financial, political or other secular activities. It appears that the Constitution makers want to ensure that the religious denominations should not wield any power as non-state actors entangling with State functions. The rationale behind the Article 25(2) is to limit the role of the religions as a social and cultural group and to arrest the tendencies to intermeddle with public affairs relatable to activities demarcated for the exercise of State power.
Article 26 enjoins any religious denomination, a right to establish a religious institution, manage the affairs in the matter of religion, etc. A combined reading of the Articles 25 and 26 would show that religious freedom is given to persons to profess, practice and propagate religion individually and collectively forming as a community or sect. The ‘denomination’referred in Article 26 refers to this collectively. Therefore, the individual identity as well as the identity in a religious denomination also has been protected by the Constitution.
However, a question may arise to what extent does the Constitution envisages protection associated with the religious practice.
The Constitution did not define religion. Therefore, it has to be understood in a normative sense. A religion could be defined as a set of practices to regulate oneself in his internal and external conducts in obedience to his belief in supreme power. Thus, the religious practices are a set of rules or principles for attainment of belief in supreme power. The religious practices are what a religion teaches. The religions like Buddism and Jainism, do not believe in the existence of God but follow the beliefs and doctrines for the spiritual wellbeing. The Constitution guarantees protection to religious practices based on what one’s conscience profess. Therefore, in all circumstances, he can retain his identity based on the religion. The State cannot interfere with the practice of religious affairs which would obliterate his religious identity. The environment in which one has to live is determined by the patterns of the idea formed by his conscience subject to the restrictions as referred under Article 25(1).
One of the salient features of the religious tenets is the moral obligations that one has to carry in formulating his conduct, in obedience to the command of superior power in like manner his conduct has to be conducive to become obedient to the legal obligation or legal duty under the temporal law. This moral obligation cannot be allowed to be interpolated by outside ethos. If the religious tenets do not allow a woman to become a priest, the State cannot import secular ethos of gender equality to allow a woman to be appointed as a priest. If it is allowed, the constitutional protection will become void and hollow.
Religious practices or performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines. Thus, if the tenets-of the Jain or the Parsi religion lay down that certain rites and ceremonies are to be performed at certain times and in a particular manner, it cannot be said that these are secular activities partaking or commercial or economic character simply because they involve expenditure of money or employment of priests or the use of marketable commodities. No outside authority has any right to say that these are not essential parts of religion, and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate.
What is meant by an essential part or practices of a religion is now the matter for elucidation. Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices the superstructure of religion is built, without which, a religion will be no religion. Test to determine whether a part or practices is essential to the religion is – to find out whether the nature of religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its behalf, then such part could be treated as an essential or integral part. There cannot be additions or subs-tractions to such part. Because it is the very essence of what religion and alterations will change its fundamental character. It is such permanent essential part is what is protected by the Constitution. No body can say that essential part or practice of one’s religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the ‘core’ of religion where the belief is based and religion is founded upon. It could only be treated as mere embellishments to the non-essential part or practices. Thus the religious practice cannot be tested on the secular thoughts or any other consideration outside the religious authority. The personal law is not law within the meaning of expression “law” under Article 13(1) of the Constitution. Thus, it is immune from the challenge based on constitutional parameters.
The religious freedom to profess, practice and propagate is a fundamental right, subject to public order, morality and health as provided under Article 25(1) of the Constitution. There are occasions in the matter of public affairs or related secular activities, leading to instances of conflict between religious practices and the State interest. Essentially, this conflict veers around religious practices rather to freedom of conscience. The Courts are often called upon to decide the question of conflict between the right to religious freedom and the State’s duty to regulate public affairs in matters of general nature or secular activities. Therefore, the individual’s religious rights when entangled in public law have to be resolved by the Court by assimilating individual rights and the State interest.
Therefore, the right to have the choice of dress based on religious injunctions is a fundamental right protected under Article 25(1), when such prescription of dress is an essential part of the religion. That right can be negated only in any of the circumstances referred under Article 25(1).
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This Article was prepared or accomplished by Kush Kalra, Practising in Delhi High Court in his personal capacity. The opinions expressed in this article are the author’s own and do not reflect the view of the LawOF.in
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