Spiritual orientation, religious practices, and courts

“What is religion to one man is superstition to another,” said Australian Chief Justice Rathman in Adelaide’s Jehovah’s Witnesses v. Commonwealth Government (1943). Religion has been central to the existence of human society from time immemorial. Man is deeply religious, and Indians even more so. At present we are in the midst of a God rush hour, with religiosity on the rise and spirituality on the decline.

Justice GR Swaminathan of the Madras High Court passed a significant and controversial order in P. Navin Kumar (2024) permitting the religious practice of angapradakshinam, in which a person rolls on a banana leaf on which other devotees (in this case) of Sri Sadashiva Brahmendra in Nellore village in Tamil Nadu have eaten. The order overturned a 2015 order of Justice S. Manikumar.

In 2015, the petitioners alleged that the practice of rolling on plantain leaves by Dalits and non-Brahmins remained even though the district administration had refuted the allegations of caste discrimination. Justice Manikumar relied on the order of the Supreme Court of India in State of Karnataka and Others v. Adivasi Budhaktat Hitarakshana Vedike Karnataka and Others (Special Leave to Appeal Petition (C) No. 33137 of 2014), in which the Supreme Court had stayed the performance of a similar 500-year-old ritual in which leaves are rolled primarily by Dalits. Justice Swaminathan refused to abide by the 2015 order, holding that the temple trustees who were organising the event were not made parties and therefore not heard. Moreover, there was no caste discrimination as not only Dalits but others were also rolling the leaves.

Resurrecting the debate

The order has reignited the debate on issues like what is religion, how essential religious practices should be judged and how consistent should the judiciary be in such judgements. Justice Swaminathan, in his meticulously researched order, cited all the important decisions of the Supreme Court and came to the conclusion that the petitioner, P. Navin Kumar, has taken the vow of angapradakshinam and is entitled to exercise his right to freedom of religion under Article 25, right to privacy under Article 21 and as part of human dignity, which cannot be in any way impaired by such practices. He even argued that sleeping on used banana leaves is part of the freedom of movement under Article 19(1)(d).

Justice Swaminathan, without any rigorous examination of evidence as was done in similar cases, judicially considered the fact that angapradakshinam is an established religious practice. Hence, as in other cases, no question was raised as to whether it is an essential and essential practice of Hinduism or whether it is a compulsory practice and not merely a superstitious one. He cited the Krishna Yajur Veda and the Bhavisha Purana which describe the practice as a noble act, but not all noble acts can attain the high status of a compulsory act.

Basic Practice Subjects

The framers of the Indian Constitution have subordinated religious freedom to all other fundamental rights. It has also been subordinated to public order, health and morals and additional powers have been given to the state to effect social reforms. Courts have further restricted religious freedom to only “essential religious practices”. Hence, only seven out of 47 cases have allowed such petitions and that is why the latest judgement by Justice Swaminathan needs to be critically evaluated. Is rolling on banana leaves with leftover food an unhygienic practice that may be injurious to health? Can a right to privacy be asserted in respect of public events like angapradakshinam?

Justice Swaminathan pointed out that when an individual is in a public place, there is no loss of privacy. In an interesting analogy, the learned judge observed in paragraph 21 of his judgment that “if the right to privacy includes sexual orientation and gender orientation, it naturally includes an individual’s spiritual orientation as well.” This orientation can be expressed in any manner that one sees fit, subject to the rights of others.

The Supreme Court’s leading judgment on religious freedom is Sri Shirur Mutt (1954), in which the Court stated that Article 25 guarantees not only freedom to hold religious beliefs as approved by personal judgment and conscience, but also freedom to manifest that belief in such outward conduct as an individual thinks fit.

The Court further held that religions prescribe rituals, ceremonies and modes of worship which are considered as an integral part of religion. The Court categorically stated that “what constitutes an integral part of a religion is to be ascertained primarily with reference to the tenets of the religion itself”. In subsequent years, the Courts became inconsistent in determining essential religious practices and moved away from looking at a particular religion to determine its essential practices and brought in their own rationality. Thus, the five-judge bench in the Ajmer Durga Commission (1961) stated that religious freedom only protects essential and integral practices of a religion and does not apply to practices whose religious nature may arise out of mere superstitious beliefs and be an extraneous and non-essential appendage to the religion itself. Why was Angapradakshinam not tested on this touchstone?

In the gram sabha of Bhatis Silala village (2014), a sect claimed that capturing and worshiping a live cobra during Nagpanchanami was an important part of its religion. They relied on a text from Srinath Liramrut which prescribed such a practice. The court relied on more general Dharmashastra texts and held that since there was no mention of capturing a live cobra, it was not an important practice of the petitioners’ religion.

In Mohammed Fathi (1985) case, a Muslim police officer approached the Kerala High Court challenging the rule prohibiting him from growing a beard. It is objectionable that instead of considering the issue of the importance of beard in Islam, the Court dismissed the petitioner’s argument relying on the irrelevant fact that some Muslim officials do not grow a beard and that the petitioner had not grown a beard in the past. Thus, the Court considered the empirical evidence of the practice and not religious documents. The Court did not allow the police officer to retain his beard, holding that it was merely a noble and pious act since growing a beard was based on the sayings of the Prophet (Hadith) and was not mandated in the Quran. Similarly, the hijab was also held not to be mandatory.

In Acharya Jagdishwarananda Avadhuta (2004), the Calcutta High Court ruled that the Tandava dance was an essential practice of the Ananda Margi faith, but the Supreme Court overturned the High Court ruling by looking at earlier judicial decisions and not religious documents. Another strange reason is that the Ananda Margi faith came into being in 1955 and the Tandava dance was only adopted in 1966. Therefore, since the faith existed without the practice, it cannot be accepted as an essential feature of the faith. This approach seems to consider a religious practice as an essential practice only if it existed at the time of the founding of the religion. This logic would lead to an approach to religious practices that are frozen in time. According to this logic, the practices of Judaism, Christianity and Islam cannot be protected insofar as they were not considered essential by Moses, Jesus Christ and Muhammad, respectively, during their lifetimes.

The “essentiality test” reached an absurd level in M. Ismail Faruqui (1995), where the Supreme Court was dealing with the matter of state acquisition of the land on which the Babri Masjid once stood. The Court held that while offering prayers is an essential practice, offering such prayers in a mosque is not essential unless the place itself has special religious significance. Everyone knows that congregational prayer is central to Islam and mosques are an essential means to achieving this end. Yet mosques were not held to be essential.

The Constitution is supreme

Throughout the article, this writer has maintained the view that judges should not become priests deciding purely theological issues and in a progressive country like India, they should not allow even essential religious practices which go against the spirit and values ​​of the Constitution. It is the Constitution of India that should govern us, not religion. Religious freedom will be allowed only to the extent permitted by the Constitution.

Faizan Mustafa is the Vice Chancellor of Chanakya National Law University, Patna, Bihar. The views expressed here are personal.