‘Essential Religious Functions Test’ – Judicial Transgression Or Social Justice?

Reigha Yangzom

INTRODUCTION
The Delhi Agricultural Cattle Preservation Act, 1994 imposes a total prohibition on the slaughter, sale or purchase, transport or export, possession and storage of beef in Delhi. This legislation was passed primarily due to the fact that the cow is considered to be holy by the Hindus. The BJP-led Municipal Corporation of Delhi (MCD) cautioned the organisers and passed a resolution against the serving of beef during the Commonwealth Games 2010. Eventually, the Delhi government also clarified that no beef would be served during the Games. The immense controversy over the fact that beef being would be offered in the common wealth games in the capital city was mainly attributed to the religious sentiments of the Hindus. This incident throws light on the fact that religious practices have an extensive impact on the Indian society.
Secularism in India unlike that in most western countries makes no effort to disconnect religion from the public space in light of the fact that religion in India is recognised as a sociological phenomenon and also as an ethical system of values.1 In India, the concepts of religion, the welfare state and secularism are all intertwined. Various religious texts are acknowledged by the Indian Constitution as a source of law. Taking into consideration the peculiar position that religion occupies in the Indian Society, this researcher endeavors to examine the role of the judiciary in interpreting religion and the secular society.

ESSENTIAL RELIGIOUS FUNCTIONS TEST:
The constitution of India under section 252 guarantees to its citizens the right to freely practice any religion subject to the limitations of public order, health and morality. The Indian constitution not only guarantees the right to freely practice a religion but it also makes provision for intervention by state thereby paving a path for a diversified establishment.3 Therefore, it does not provide protection to any economic, financial, political or other secular activity which may be affiliated to some with any religious practice but is not an indispensable religious practise.
It has always been a complicated task to compartmentalise if a particular issue falls under essential religious function or if it is a secular activity only associated with religion. In order to demonstrate the predicament in classifying the same one may look into some foreign judgements.

FOREIGN JUDGEMENTS
In Adelaide Co. V. Commonwealth 4 members of the “Jehovah’s witnesses”5 acting pursuant to the National Security Regulations 1940, the Government of Australia declared Jehovah’s Witnesses to be “prejudicial to the defence of the Commonwealth” and to the “efficient prosecution of the war”. Police immediately occupied premises of the organisation. The legality of this was challenged in the high court through a writ petition. The High Court held that the propagandas of the Jehovah’s Witness were political activities and that their religious freedom was in no way infringed by the National Security Regulations 1940.
Again, in the case of Minersville School District v. Gobitis6 two students were expelled from the public schools for declining the order to salute the flag as part of a daily school exercise. These children were Jehovah’s Witnesses who were of the belief that saluting the flag was against their religious practices. The US Supreme Court held that saluting the flag being an essential gesture of national unity was designed “to promote in the minds of children who attend the common schools an attachment to the institutions of their country” and that the legislation mandating the students to salute the flag did not infringe the right to freedom of religion.
However, in another case7 the Supreme Court held that compelling students of a public school to a salute to the national flag infringes upon an individual’s intellect and right to choose their own beliefs. Therefore, such action of the state would violate the liberty of religion.
These haphazard judicial opinions highlights the fact the impediment of integrating the religious practices which are essential to the religion and those which are merely activities associated with a religious practice.
In the case of Jones v. Opelika8 the Supreme Court of United States held that that a statute prohibiting the sale of religious books without a license was constitutional because it only covered individuals engaged in a commercial activity rather than a religious ritual.
Nonetheless, the Supreme Court retracted from the decision in the above case in Murdock v. Pennsylvania9 which furthermore encapsulates the juxtaposed position of secular commercial activities and religious practices. An ordinance had been enacted according to which any person collecting funds or selling merchandise required a licence. Several Jehovah’s Witnesses who went door-to-door distributing religious literature and soliciting funds were fined and imprisoned for failing to acquire the license. The Supreme Court declared the license tax unconstitutional as it applied to activities which were religious and not commercial.

INDIAN JUDGEMENTS
In India, the essential religious functions test emerged as a result of the ambiguity in the case of ‘Shirur Mutt’10 The apex court eliminating the assertion test, in which the only criteria to prove that a certain case wasn’t a secular act was the assertion of a high priest stating the same. As a replacement to this test, the essential practices test was brought about. In accordance to this test, only those practices which were “integral to the faith” obtained exemption from state intervention. The courts had the autonomy in the matter of deciding as to what rites and ceremonies are essential religious practices.
In the case of Durgah Committe v. Hussain Ali11 the court held that Articles 25 and 26 provides only essential and integral parts of religion immunity from state intervention. It also held that the immunity is provided not only to matters of doctrines or belief; but it extends to acts done in furtherance of religion such as rituals, observances, ceremonies, modes of worship which are considered to be fundamental parts of the religious practices. The Court also made an observation which stated that no immunity would be provided to superstitious, peripheral and unnecessary religious practices.
Here again, in another case12 the court set up certain guidelines in determining whether a particular practise is an essential religious function. The court held that in order to determine whether a particular act constitutes an essential religious function or not reliance needs to placed on the doctrines and religious texts of that particular religion.
In Mohammad Hanif Qureshi Vs. State of Bihar 13 the court was vested with the task of deciding whether the prohibition on cow slaughter was in violation of freedom of religion of the Mohammedans. The petitioner’s argued that the sacrifice of cow was an essential religious function on the day of Bakrid. The court after looking at the religious text of the Mohammedans i.e. the Koran held that it was not an integral part of their religion and hence, it could be regulated by article 25(2)(a).
The right to freedom of religion is only limited to matters relating to religion. Secular activities in spite of being related to religion are not protected from interference by the state. However, it has always been a herculean task neatly compartmentalise as to whether a particular activity is secular because in certain cases the essential religious activity is inextricably mixed with the secular activity. The case of Bira Kishore Deb v. State of Orissa14 is an exemplary example of the same. The petitioners argued that The Sri Jagannath Temple Act, 1954 was in violation of the freedom to manage its own religious affairs as guaranteed under section 26(b). The court however, held that Sevapuja comprised of two aspects one of which was concerned with the materials to be offered in the Sevapuja which was in essence a secular function and the act only regulated that part of the Sevapuja. In another case15 the Apex court validated a law which transferred the power to manage the temple to a board of trustees instead of the Pandas. The court emphasized on the fact that the law only dealt with the secular aspect i.e. administration of the temple which was inefficient and incompetent and hence, the state in no way infringed the religious rights of the people.
The intervention of the state in secular matters associated with religion has brought about some favourable and positive judgements. In Sastri Yagnapurushdasji v. Muldas16 Bombay Hindu Places Of Worship Act was passed which permitted untouchables to enter and worship in the temples. Here, the satsangi sect challenged the constitutional validity of that Act prohibiting their practice of not allowing ‘untouchables’ to enter temples. They argued that they were not part of the Hindu religion and they were exempted from this legislation. The Supreme Court relying on several Hindu texts came to the conclusion that satsangis were Hindus and the act merely aimed to bring about social equality and that the religious rights of the people weren’t infringed upon. There are few other cases in which the judiciary has used essential religious function as a tool to bring about social justice. The Apex Court in the case of Seshammal v. State of T.N.17 held that the hereditary principle of temple priests as void, stating clearly that the archakas and priests are temple servants and that matters concerning their appointment, emoluments and the benefits fall within the ambit of secular activities susceptible to interference by the state. Similarly in A. S. Narayana Deekshitulu v. state of A. P.18appointment of non-Brahmin as priest in a temple, authorized by law was upheld.
However, there has also been ample criticism on the applicability of the essential religious functions test. In Acharya Jagdishwaranand Avadhuta v. Commissioner of Police19 and Commissioner of Police v. Acharya Jagdishwaranand Avadhuta20 the courts upon examining several religious texts and religious practices of the Amanda Margis, was of the opinion that the tandava dance was not a part of their essential religious functions and in the process further narrowed the Essential Religious Functions.
In the Calcutta High Court21 single bench Justice B.P. Banerjee made a commendable observation which read as “If courts started enquiring and deciding the rationality of a particular religious practice, then there might be confusion and the religious practice would become what the Courts wished the religious practice to be.” This observation made by Justice Banerjee has been one of the most compelling and powerful criticism of the essential functions test. The judiciary, at times, have utilised the test to deprive individuals and institutions of the full enjoyment of the right to religious freedom instead of using the said test to enhance the same. The test had been widely used to exclude non essential practices from constitutional protection. The judiciary deployed this extraordinary power by relying on limited religious texts to define the essential practices. Having assumed the power greater than any religious leader, they acted as theological authority so as to determine the practices which were essential for a religion. 22 Taking this into consideration it would not be a conjecture to argue that the judiciary is resorting to transgression in being the sole decision maker as to whether a certain act is an essential religious function or not.

CONCLUSION
Secularism in India should be viewed in an expansive approach to provide for all groups and communities. Indian Secularism should ideally be pluralistic and flexible so as to cater to the needs of all persons. Attempting to apply secularism in such a manner so as to make all religious minorities and tribal to fall within the Hindu fold would destroy their identities and the national aspirations of the Constitution. The Court’s evolution of the Essential Religious Functions test is an interventionist approach. Applying the test has made it convenient for the Courts to describe a practice as not essentially religious as opposed to stating that it affects public order, morality or health which would require further proof. It would be a conjecture to state that the courts haven’t done justice in compartmentalising the essential religious functions from the secular acts. In several cases the courts have restrained unethical religious practices in furtherance of social justice by utilising the essential religious test. However, the conflicting range of decisions in the case of Anand Marg, questions whether the Judiciary has pushed its reformist agenda at the expense of religious neutrality.
On conducting a meticulous study of the interpretation of the essential religious functions test one may come to the conclusion that the Indian Judiciary has been significantly biased and arbitrary in determining whether a particular act is an essential religious function or a secular act. The researcher through the course of this essay has observed that the Essential Religious Functions test has at times been utilized by the judiciary to narrow religious freedom by resorting to judicial transgression. This throws light on the dire need of a set of flexible guidelines which would act as a pillar stone in differentiating between an essential religious function and a secular act in a non arbitrary justice oriented approach.

BIBLIOGRAPHY

LIST OF BOOKS
V. N. Shukla, Constitution Of India, 11th edition, Eastern Book Company, (2011).
Durga Das Basu , Commentary on Constitution of India, (2010).
M.P.Jain, Indian Constitutional Law, 6th edition, vol1 (2010).
P. Ishwara Bhat, Fundamental Rights: A Study of Their Interrelationship,(Eastern Law House 2004).

LIST OF ARTICLES
Sushila Ramaswamy, ‘Impact of ‘Religious’ Secularism’ (http://www.epw.in/ 2011) <http://www.epw.in/system/files/pdf/2011_46/12/Impact_of_Religious_Secularism.pdf> accessed 15 January 15
Owen, ‘Religion, The Enlightment and the New Global Order’. New York: Columbia University Press. J.M (2010).
Mathew John, ‘Identity and the Social Revolution WORKING PAPER SERIES Centre for the Study of Law and Governance Jawaharlal Nehru University, New Delhi CSLG/WP/18 On the Political Sociology of Constitutionalism in Contemporary India’ (http://www.jnu.ac.in/ 2012) <http://www.jnu.ac.in/cslg/workingPaper/18-Identity%20(John).pdf> accessed 24 January 15
LIST OF CASES
Adelaide Co. v. Commonwealth 67 Com LR 116
Minersville School District v. Gobitis 84 L Ed 1375: 310 US 586 (1940)
West Virginia State Board of Education v. Barnette, 87 L Ed 1628: 319 US 624 (1942)
Jones v. Opelika 86 L Ed 1619: 316 US 584 (1942)
Murdock v. Pennsylvania 87 L Ed 1293: 319 US 105 (1942)
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshimindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282
Durgah Committe v. Hussain Ali AIR 1961 SC 1402
Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853
Mohammad Hanif Qureshi v. State of Bihar AIR 1958 SC 731: 1959 SCR 629.
Bira Kishore Deb v. State of Orissa AIR 1964 SC 1501
Sri Adi Visheshwara of Kasji Vishwanath Temple v. State Of U.P. (1997) 4 SCC 606.
Sastri Yagnapurushdasji v. Muldas AIR 1966 SC 1119
Seshammal v. State of T.N AIR 1972 SC 1586
A. S. Narayana Deekshitulu v. State of A. P. AIR 1996 SC 1765
Acharya Jagdishwaranand Avadhuta v. Commissioner of Police (1983) 4 SCC 522
Commissioner of Police v. Acharya Jagdishwaranand Avadhuta (2004) 12 SCC 770
Acharya Jagdishwaranand Avadhuta v. Commissioner of Police AIR 1990, Cal. 336

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