Religion Through the Lens of Law: Neutrality of the State Secularization of Religion

Justice M.Seshachalapathy Endowment Lecture delivered on 19 th February, 2011 at NALSAR Law University, Hyderabad by Shri Justice M.N.Rao*

Reminiscences about Justice M.Seshachalapathy:

Justice M.Seshachalapathy was one of the outstanding Judges of the Andhra Pradesh High Court. He contributed in a great measure to the growth of jurisprudence, especially in the field of public law during the earlier stages of the A.P. High Court. Known for great mastery over English Language, Justice Seshachalapathi always was the object of admiration by senior members of the Bar and adoration by juniors. His knowledge of law was really encyclopedic and his memory, phenomenal. In the Court room he would reel off many an important decision on constitutional law, administrative law rendered by the English Courts and the American Supreme Court. As an youngster at the Bar I used to marvel at the astounding learning of Justice Seshachalapathy. His Court Hall would always attract knowledge seekers. Every discussion on

constitutional adjudication in his Court was an intellectual treat. At the end of the arguments, he used to sum up what was argued by both sides and that invariably enhanced the regard of the Advocates for the great learning and articulation of the Judge.

Justice Seshachalapathys English accent was almost anglicized.

He

was the most sought after Judge of the High Court to preside over intellectual gatherings. His speeches were always heard with rapt attention not only for the contents but also for the flavour of the language.

I had the fortune of appearing in a few matters before him independently and in many with my Senior late Shri P.Babulu Reddy. He used to like juniors very much and always encouraged them to study and analyze complicated questions of law and facts which in itself was a great inspiration and support for the junior members of the Bar.

Former Chief Justice of Himachal Pradesh and Chairperson, National Commission for Backward Classes.

None was equal to him in passing remarks very apt to the occasion resulting in immediate laughter relieving the tedium of the Court atmosphere. One instance I remember very clearly. One of the Advocates was struggling to express a question of law in a Writ Petition he was arguing. Justice

Seshachalapathy immediately discerned the point and started giving hints to enable the Advocate to catch up and present the correct proposition of law. But the Advocate could not measure upto the task. Justice Seshachalapathy while almost reaching the point of disgust shot a question at the Advocate what is your good name?. The Counsel promptly answered Paropakari. Justice Seshachalapathys immediate response was Calls himself Paropakari but cannot help himself. The case was admitted and interim order granted. The whole Court Hall went up in peels of laughter.

In those days whenever an interim order was granted by a Judge, it was common practice for the Advocates to ask for permission of the Court to communicate the result by wire to the Respondent/Authority. Some Judges used to grant permission and some judges used to decline. wireless if you can. For a long period Justice Seshachalapathy sat in the admission Court. Many an eminent Counsel specialized in constitutional law had their initial training in his Court. They later blossomed into famous lawyers Shri In Justice Seshachalapahys Court the common response one used to get was By

Ramachandra Reddy, Shri Babulu Reddy, Shri Anantha Babu and Shri P.A.Choudhary, to name a few.

In his Court English and American decisions were cited frequently by the Advocates. Even in those days foreign Case law was cited before two or three Judges only. At that time youngsters like me used to discuss in hushed tones that with the exception of two or three knowledgeable judges others were not conversant with English and American decisions and therefore no Counsel could take the trouble of citing foreign decisions before those judges. It is indeed a great privilege for me to deliver todays Endowment Lecture instituted in the name of Justice Seshachalapathy, by his son Padma Vibhushan Shri M.Narasimham garu, an internationally renowned economist and former Governor of the Reserve Bank of India. I am immensely grateful to Shri Narasimham for inviting me to deliver the Endowment Lecture this year.

Religion Through the Lens of Law: Neutrality of the State Secularization of Religion:

It is commonly believed by Constitutional lawyers in all liberal democracies governed by Rule of Law that there is total disengagement between religion and law. This belief to a great extent is true of all countries governed by written Constitutions and following Anglo American- jurisprudence. In this lecture it is my endeavour to examine this aspect and support my conclusion that religion and law irrespective of the nature of the democratic system of government prevalent and the phraseology found in the Constitution of any country, are inextricably intertwined and no nation has so far succeeded totally in keeping the two strictly apart. Religion and human kind are inseparable.

Considering the contours of the study you may be interested in knowing why I have given this title: Religion through the Lens of Law. Lenses are generally of two types - concave and convex. Concave is hollow -it is the interior of a circle or spherei and convex is vaulted or arched outline or surface curved like the exterior of a circle or sphereii. A person with normal vision sees objects and things in their proper dimensions- correct perspectives, unlike the one with defective vision. If the defect is Hyper Metrophia (long sight) he cannot see nearer objects since images fall behind the retina: to have correct vision he needs convex lenses. If the defect is Myopia (short sight) he cannot clearly see distant objects. For correct vision he needs conclave lenses. A person with no defective vision, but wearing convex lenses sees objects and things in magnified dimensions: if conclave lenses are used things and objects appear smaller. In other words a short sighted person without correction glasses will not see distant objects and one with long sight cannot see nearer objects. Both categories need correction glasses to have clear vision. Mirror, a third category is not relevant: we dont see through the mirror since its back side is coated making it impossible for light to pass through. You dont look through the mirror: you only look into it. Religion as impacted by law looks differently in the mirror of law depending upon the judges who interpret it and the lens through which the question is viewed by them. As we examine the divergence of judicial opinion on religion as impacted by law and the intertwining between the two as revealed in judicial decisions, what emerges is a foggy picture.

That is why I thought it appropriate to give the title Religion Through the Lens of Law: Neutrality of the State Secularization of Religion to this lecture.

Religion according to Encyclopedia Americanaiii is . the pattern of belief and practice through which men communicate with or hope to gain experience of that which lies behind the world of their ordinary experience. Typically it focuses on an ultimate or absolute, thought of by some believers as God.

In ancient societies the Rule of law was nothing but the rule of religion. Social harmony was achieved and maintained mainly due to all the members having full faith in a common religion which was a cementing factor leaving no scope for emergence of plurality of religions. Religion as everyone accepts is founded on faith and reason cannot explain its rational basis. There is no universally acceptable definition of religion: its meaning and interpretation differed vastly- Scientists, Philosophers, Saints and Statesmen viewed religion from different angles. Sir Julian Huxley, a renowned scientist who synthesized philosophy with science expressed the viewreligion is the product of a certain type of interaction between man and his environment. It always involves an emotional component- the sense of sacredness. It always involves a more than intellectual belief a sense of compulsive rightness. It is always concerned with a sense of human destiny and with a way of life. It always brings the human being into some sort of felt relation with powers or agencies outside his personal self. It always involves some sort of escape from inner conflict

From the point of view of theology religion has dual functions : (1) Rationalism giving coherent explanations in rational terms for acts and feelings which arise from instinctive and therefore irrational sources, (2) Providing satisfactory emotional relation to human beings with non human environment, regarded as utter destiny or fateiv.

The great Saint Shri Aurobindo believed that the essential function of religion is:

the search for God and the finding of God.

According to him the present knowledge being imperfect the validity or correctness of any religious concept cannot be proved or explained with the help of reasonv. No scientific analysis of any religion will yield absolute truths and that accounts for the existence of plurality of religions.

Religion did not abruptly surface in the primitive societies. The evolution of religion according to Huxley was determined principally due to the influence of:

(1)

Material and social conditions of the period; and

(2) Its own emotional and intellectual momentum- the resultant situation compelled the necessity of recognizing the existence of a supernatural being God and total surrender to him. God is a human product arising inevitably from a certain kind of ignorance and a certain degree of helplessness with regard to mans external environmentvi.

Social behaviour was controlled by faith in religion leading to the evolution of religious tenets metamorphosing into legal rules compelling obedience in all walks of life. The merger of law and religion was thus total and complete. This congenial situation ensured full social control. The ruler was the law giver and his command carried implicit obedience and failure to do so resulted in punishment. Knowledge of law which emanated thus was confined only to a few mostly belonging to priestly class without any necessity of codification. In course of time the priestly class gained power as administrators of law since priesthood involved duties relating to religion which also had the imprimatur of law.

The next stage of development was towards codification of law, the propelling force chiefly being invention of writing. When rules regulating the social behaviour were codified the posterity enjoyed the great advantage of knowing what the law is. Diffusion of legal tenets thus ensured certainty and prevented abuse of the system. Roman law, it is

universally recognized is one of the earliest to have a written code. Hindu Law in this regard suffered to a great extent absence of codification made it almost impossible for the future generations to understand what precisely the legal rules are. Even the authenticity of Manusmiriti was doubted on the ground that it contained the views of many commentators who engrafted their personal views attributing their source to Manu. The uncertainty was so great that the Hindu Mythology described Manu as an emanation from the Supreme God. About this Sir Henry Maine said: the compilation which bears his name (Manu), though its exact date is not easily discovered, is in point of the relative progress of Hindu jurisprudence, a recent productionvii, Roman Code was compiled while the usage was still the whole some. Comparing Hindu and Roman jurisprudence Sir Henry Maine said : The Roman code was merely an enunciation in words of the existing customs of the Roman people.the fate of Hindu Law is in fact the measure of the value of the Roman codeviii.

Evolution of Law: The nineteenth century had seen the emergence of law in a different incarnation. The relevance and usefulness of legal system came under scrutiny with reference to social utility and social good. The science of society called Sociology emerged with the demand that law should cater to the needs of society and social control should not be confined to social status quo which was a medieval concept. The science of sociology owed its growth to the social philosopher Comte in the nineteenth century. The development of sociology resulted in the existing basic tenets of legal system coming under attack from the people demanding structural changes in law to suit social advancement. Thus law came to be considered as an instrument of social change. Social cohesion would be possible only by social control through properly structured law. Religion, law and morals are some of the well recognized agencies of social control. Examination of legal system from sociological perspectives necessarily resulted in religious principles distancing from legal principles.

In theocratic States, social cohesion became possible because of fusion of law, religion and morals which are interconnected with no possibility of separation. Social cohesion became possible because of the entire edifice resting on a single religion. The raison d etre of the nation and the religion being one and the same, no part of human activity was left out of the purview of the religion.

The birth of pluralistic societies had changed the position radically distancing religion from law.

Discernable in the decisional law is wide range of views expressed by judges, sometimes adhering to traditional concepts and at other times giving new interpretations depending upon their views on the question. When an abstract emotive and subjective topic like religion which is associated with the very way of living and thinking of everyone in society comes up for judicial interpretation we find many manifestations of religion and law- the narrowing of the distance between social forces and religious forces with law lending legitimacy to both. Various

manifestations of religion intertwined with law emerge- religious customs, usages, beliefs, right of worship, marriage, succession, adoption, right to livelihood in the form of employment, reservation of claim to elective offices and struggle of secularism to extricate from religion.

Attempts to wipe out religion by means of temporal power and political philosophy aimed at social transformation have failed. The appeal of Karl Marx that the society should get rid of religion did not succeed. His exhortation failed to change the people in the communist countries.

Marx said it is the opium of the people.. the abolition of religion as the illusionary happiness of people is required for their real happiness. The demand to give up the illusions about its conditions is the demand to give up conditions which need illusionsix.

The three important religions in India are Hinduism, Islam and Christianity. It is universally accepted that the word Hindu is referrable to

the people living on the Indian side of Sindhu River (Indus)x.

About

80.5% of Indias population belong to Hinduism. Chief Justice Gajendragadkar speaking for the Constitution Bench in Sastri Yagnapurushadji & Ors. Vs Muldas Bhudardas Vaishya & Anr xi while stating that it was difficult though not impossible to define Hindu religion observed: Unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not worship any one God; it does not subscribe to any one dogma; it does not believe in any one philosophic concept; it does not follow any one set of religious rites or performances; in fact, it does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more. It implied residence in a well defined geographical area. Aboriginal tribes, savage and half- civilized people, the cultured Dravidians and the Vedic Aryans were all Hindus as they were the sons of the same mother. The Hindu thinkers reckoned with the striking fact that the men and women dwelling in India belonged to different communities, worshipped different Gods, and practiced different rites (Kurma Purana).

The Learned Chief Justice also approvingly referred to the views of Monier Williams:

The Hindu religion is a reflection of the composite character of the Hindus, who are not one people but many. It is based on the idea of universal receptivity. It has never aimed at accommodating itself to circumstances, and has carried on the process of adaptation through more than three thousand years. It has first borne with and then, so to speak, swallowed, digested, and assimilated something from all creedsxii.

Hinduism despite the above description believes in the existence of one Supreme Being. In the words of Dr.Radhakrishnan :

The maintenance of the Hindu faith is to permit image worship as a means to the development of the religious spirit, to the recognition of the supreme who has His temple in all beingsxiii.

Islam and Christianity adhere to monotheism. Almost 13.4% of Indias population practice the faith of Islam. Islam is an Arabic word meaning submission, surrender and commitment. Mohammad is the prophet and the followers of Islam are known as Muslims i.e submitters to Godxiv. Quran is the holy book of Islam, it is a divine revelation to prophet Mohammad, the messenger of God.

Christianity was founded by Jesus Christ. The three major divisions among Christians are Roman Catholic, Protestants and Eastern orthodox. Christians believe in the reality of God. Christians constitute 2.3% of our total population. Christians believe in one God and follow one book- the Bible.

At the foundation of Christian structure of belief is the affirmation of God in terms of creation and of fatherly concern for manxv.

Buddhism, Jainism and Sikhism aim at reforming Hinduism: they came into being as reformist movements.

The Sikh religion combines elements of Islam and Hinduism... Guru Nanak, founder of Sikh religion and its first Guru (teacher), was a sixteenth century Hindu mystic who had studied both Hinduism and Islam.. The core of his beliefs was Hindu but he was undoubtedly greatly influenced by Islam Nanak believed in a monotheistic deity whom he designated Sat Nam (true name) and He who had created all men equalxvi. The Sikhs constitute 1.9% of Indias population; Buddhists number is very negligible only 0.8%, while that of Jains is much smaller 0.4%. Approximately 18% of Indias population belong to religious minorities.

Buddhism was founded by Siddhartha Gautam who became after enlightenment Lord Buddha. The religion he preached was a kind of Protestantism aimed against the religious- social monopoly of the Brahmanic caste of priests. As Gautamas views were egalitarian, he maintained that dharma was not a religious or social preserve of a few, but an entity available to all. The core of the doctrine is the realization of certain basic truths: the universality of suffering and its cause and the

10

practical way by which suffering may be overcome. Thus Buddhism is at once a philosophy of life and a practical discipline. At the same time it is a religion, in that the practice of the way leads to salvationxvii. About Jainism Encyclopedia Americanaxviii says:

Jainism, is an ancient monastic religion of India. It is a heterodox religion denying the validity of the Vedic (ancient Hindu) scriptures, pantheon, and ritual and the authority of the Brahman priesthood. Its approximately two million followers are known as Jains (Sanskrit Jaina).

United Kingdom: The official religion in the United Kingdom is protestant faith of Christianity. The British sovereign must be a protestant by faith. Inspite of this the State guarantees to every individual the freedom to practice any religion. The United Kingdom being the oldest democracy in the world although has a titular monarchy has been for over a long period maintaining high traditions in the matter of protecting religious freedom. The absence of written Constitution and the absolute power of British Parliament did not hamper the rights of religious minorities and the sections of Christianity not belonging to the protestant faith.

United States of America

In the United States it was felt by the Founding Fathers of the Constitution that religion must be separated from the State and that there should be a wall of separation between religion and State. The State should not make any decisions affecting religion based values or tenets.

James Maddison who introduced the First Amendment of Constitution in the Congress expressed the view: the religion of every man must be left to the conviction and conscience of every man. In matters of religion no mans right is to be abridged by the institution of civil society; religion is wholly exempt from its competencexix.

the

11

The provisions concerning religious freedom and non discrimination by the State were not engrafted in the original Constitution enacted in 1787. Religious freedom and prohibition against establishment of religion by the State are found in the First and the Fourteenth Amendments and to a certain extent Article 6 of the Constitution also adverts to religion: Section 2 of Article 6, commands that .no religious test shall ever be required as a qualification to any office or public trust under the United States. The first ten amendments which are popularly called Bill of Rights- containing the universally accepted fundamental freedoms were added in 1797. The Fourteenth Amendment which became part of the U.S Constitution in 1868 extended the application of the First Amendment to the States also.

The First Amendment in so far as it deals with religion reads: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . Section 1 of the Fourteenth Amendment which is relevant reads: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the united States; ..xx.

The prohibition contained in the First Amendment against Congress is two fold:

the

(1) No law can be made by the Congress to establish a religion, (2) It cannot also make any law prohibiting not only the exercise of a religion but the free exercise of any religion.

The above Constitutional restrictions have positive and negative contents. Free exercise of religion implies not only ordinary exercise of religion but it is something more; what is guaranteed is the free exercise of religion. It is a positive guarantee in favour of the citizens. Negatively restriction is placed on the Congress forbidding not only to establish a religion but also to ban any existing religion. How judicial interpretation enlarged and amplified the scope of the content and amplitude of the

12

above makes an interesting study. Non-establishment of a religion and disfavouring of any religion are both covered by the same prohibition. Non discrimination in respect of all religions and religious institutions is the mandate of the Constitution.

It is a historical fact that the early settlers of the United States were Catholics from Britain who founded the nation. They suffered the tyranny of Protestantism practiced in England and that experience made them realize that State should not mix religion with any secular activity. They could well have established a Catholic State, but they formed a true democracy guaranteeing freedom and liberty to all sections, they consciously opted for separation of religion from the State. It is significant to note that there was no religion worth mentioning other than Christianity when the Americans adopted their Constitution in 1787.

How the United States Supreme Court interpreted Religious Freedom:

Whether religious belief is a valid defense when charged with a crime:

The first case that arose in the United States in which the proposition whether religious belief could prevail over the enacted law of the land was in 1878 in Reynolds Vs United States xxi. The Legislature of the State of Utah enacted a law making bigamy an offence carrying punishment of imprisonment for a term of not more than five years and a fine not exceeding $ 500. One of the pleas taken by George Reynoldsthe accused- Defendant is that he was a member of the Mormon Church and it was an accepted doctrine of that Church to practice polygamy which they believed was ordained by the almighty God in a revelation to the founder of the Church, Joseph Smith. The doctrine prescribed the penalty of damnation in the life to come for failure on the part of any male member of the Church to practice polygamy when circumstances permitted.

The Supreme Court considered the question whether religious belief can be accepted as a justification of an overt act made criminal by

13

the law of the land. Chief Justice Waite who delivered the opinion of the court while accepting the proposition that the First Amendment to the Constitution guarantees religious freedom everywhere throughout the United States squarely posed the question for consideration: what is the religious freedom which has been guaranteed? The Chief Justice referred to the Constitutional developments leading to the passing of the First Amendment and accepted the view expressed by Thomas Jefferson as the authoritative declaration of the scope and effect of the amendment. The view of Jefferson is:

Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions, --I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion or prohibiting the free exercise thereof, thus building a wall of separation between church and State. (emphasis added)

Adhering to this expression of the supreme will of the nation on behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties. (emphasis added)

The Chief Justice adverted to the fact that at common law the second marriage is always void and declared polygamy has always been odious among the northern and western nations of Europe,---and until the establishment of the Morman Church, was almost exclusively a feature of the life of Asiatic and of African people --- from the earliest history of England polygamy has been treated as an offence against society.

He concluded that it is impossible to believe that the Constitutional guarantee of religious freedom was intended to prohibit legislation in respect to this most important feature of social life.

14

While upholding the constitutionality of the law the Chief Justice posed the next question: Whether those who make polygamy a part of their religion are excepted from the operation of the statute? The clear answer furnished is that laws made by the State cannot interfere with mere religious beliefs and opinions but they can interfere with religious practices. Examples of Barbarian practice like human sacrifices and Sati were cited in the judgment.

It is significant to notice that in the Reynolds case the question of legislative competence of the Congress prohibiting polygamy was not an issue and this was made explicit in the course of the judgment. What fell for consideration was whether a person who knowingly violates a law properly enacted can escape the punishment because of his religious belief that the law is wrong. Laws will not be struck down on the basis of belief that they are wrong: the universally accepted test is whether the impugned law was in breach of any of the provisions of the Constitution. Judging from that point of view the court rightly accepted the view of Jefferson that no one has a natural right in opposition to his social duties. The supreme will of the nation as manifested in the Constitution would not permit anyone to assert anything in breach of social duties. The conclusion of the court leaves no one in doubt that the congress was free to reach actions which were in violation of social duties or subversive of good order. The finding of the Court that polygamy is an offence against the society warranting severe punishment was based upon the acceptance of the view of Prof. Lieber that polygamy leads to patriarchal principle, which when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy.

The court correctly visualized the situation that if the plea of religious belief is accepted: those whose religious belief is polygamy would be acquitted and others whose religious belief is not polygamy but practice the same would be punished. Apart from introducing a new element in criminal law it would also be in breach of the Fourteenth Amendment equal protection of law. Thus Reynolds case remains an

15

authority for the proposition that any and every religious belief is not protected by the First Amendment and that the court can examine the substance and contents of the religious belief pleaded in defense.

Jehovahs Witnesses :

A religious group called Jehovahs witnesses started spreading its doctrines in the 1930s. Apart from propagating bizarre views, the sect resorted to virulent campaign of denouncing the organized religion of Christianity and the Churches especially of Roman Catholics. Every State action aimed at curbing their activities met with stiff resistance including legal battles ostensibly for protecting the beliefs of its members. The cases that came up before the Supreme Court concerning Jehovahs witnesses cover a wide range from honouring the National Flag to the sale of religious literature. What is astonishing is in about more than thirty cases brought by Jehovahs witnesses they succeeded to a great extent in asserting their religious beliefs and the freedom to hold their beliefs under the Constitution.

Respect to National Flag and Religious Belief-

The National Flag of any independent country is a symbol of its pride and the goals it cherishes. The whole nation accepts the flag as a unified symbol reminding the people of their past sacrifices present pride and future objectives. The National Flag reflects the dreams, deeds and desires of the people. To uphold its honour no sacrifice is supreme and history is replete with countless examples of people laying down their lives to defend the honour of the flag since the flags honour is the Nations honour.

The United States Supreme Court by an overwhelming majority of 8 against 1 in Minersville School District Vs Gobitisxxii, (1940) upheld the action of the Pennsylvania District School Board in expelling two children from the schools for their refusal to salute the National Flag as part of the school exercise. The children belonged to a family of Jehovahs

16

witnesses and the belief of the religious sect was that they should not bow down before any graven image (carved image). Their refusal because of their belief to salute the flag resulted in their expulsion. By an overwhelming majority of 8 to 1 the Supreme Court upheld the action of the school Board. Justice Frankfurtur who wrote the majority opinion accepted the proposition that affirmative pursuit of ones convictions about the ultimate mystery of universe and the mans relation to it is placed beyond the reach of law and that such beliefs may not be interfered by the Government. He also agreed that propagation of belief or disbelief in the supernatural is protected. The conception of religious duty according to him may conflict with the secular interest. He posed the question: when does the promotion of some great common end which the society thinks is necessary will prevail over religious belief?

The judges answer was: The Constitutional guarantee about religious liberty has not excluded the legislation of general scope: Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.

Answering the question whether Gobitis children must be excused from conduct required of all the other children in the promotion of national cohesion, he held : National unity is the basis of national security.

Cautioning the judges that their personal notions should have no relevance in judicial determination, he expressed the view: The ultimate foundation of a free society is the binding tie of cohesive sentiment. Such a sentiment is fostered by all those agencies of the mind and spirit which may serve to gather up the traditions of a people, transmit them from generation to generation, and thereby create that continuity of a treasured common life which constitutes a civilization. We live by symbols. The flag is the symbol of our national unity,

17

transcending all internal differences, however large, within the framework of the Constitution. (emphasis added) When the religious convictions are at variance with the concerns of the political society the citizen is not relieved from the discharge of political responsibilities. Accepting the fact that there shall be no independent judgment by the courts in educational matters concerning the wisdom of training children in patriotic impulses, the Constitutional philosophy declared by Frankfurtur is: But the court-room is not the area for debating issues of educational policy. It is not our province to choose among competing considerations in the subtle process of securing effective loyalty to the traditional ideals of democracy, while respecting at the same time individual idiosyncrasies among a people so diversified in racial origins and religious allegiances. So to hold would in effect make us the school board for the country. That authority has not been given to this Court, nor should we assume it. Explaining what does the flag stand for and why flag salute is important, Frankfurtur concluded: The preciousness of the family relation, the authority and independence which give dignity to parenthood, indeed the enjoyment of all freedom, presuppose the kind of ordered society which is summarized by our flag. A society which is dedicated to the preservation of these ultimate values of civilization may in self protection utilize the educational process for inculcating those almost unconscious feelings which bind men together in a comprehending loyalty, whatever may be their lesser differences and difficulties.

The only dissenting view was by Justice Stone who proceeded on the assumption that the religious beliefs are genuine and the refusal to salute the flag is in good faith and with all sincerity. Compelling the children of the particular religious sect to do what their religion forbids amounts to denial of their faith and deprivation to have religious convictions. Viewing the question from this angle the dissenting judge held that the coercion exerted by the State violates their (children) deepest religious convictions.

18

In times of war and for raising armies the State may compel citizens to join military services despite the religious objections of the citizens. If religious practices are dangerous to morals, public safety, health and good order Government may interfere with the rights of the First Amendment. But the supposed educational measure as a means of disciplining the children, the State cannot compel public affirmations.

On the question that flag salute will contribute to national unity justice Stone declared that even if it is believed to be so: there are other ways to teach loyalty and patriotism which are the sources of national unity than by compelling the pupil to affirm that which he does not believe and by commanding a form of affirmance which violates his religious convictions. The dissenting judges conclusion is: The Constitution may well elicit expressions of lo yalty to it. And while such expressions of loyalty, when voluntarily given, may promote national unity, it is quite another matter to say that their compulsory expression by children in violation of their own and their parents religious convictions can be regarded as playing so important a part in our national unity as to leave school boards free to exact it despite the constitutional guarantee of freedom of religion.

Taking guidance from the reasoning and the principles laid down in Gobitis case, the Legislature of West Virginia enacted a law requiring the schools to conduct courses of instruction in History, Civics, and Constitution of United States. Both the private and public schools were required to comply with this law. The Board of Education on 9.1.1942 adopted a resolution based upon the Gobitis opinion ordering flag salute a regular part of the program of the activities in public schools. This was the subject matter of challenge by Jehovahs witnesses in West Virginia State Board of Education Vs Barnettexxiii. What is surprising is the total change of view by the Supreme Court. The two justices - Black and Douglas - who sailed with the majority in the Gobitis case and agreed with the view of Frankfurtur suddenly opted for the opposite view. They joined the majority in declaring the flag salute as unconstitutional. After changing their minds speaking for the majority Justice Jackson declared:

19

words uttered under coercion or proof of loyalty to nothing but self interest. ----Love of country must spring from willing hearts and free minds, inspired by fair administration of wise laws enacted by the peoples elected representatives within the bounds of express Constitutional prohibitions.

In a separate opinion Justice Murphy agreed with the majority.

Some of the events subsequent to Gobitis case compel our attention. Justice Stone who was the lone dissenter in Gobitis case became Chief Justice after the retirement of Chief Justice Hughes on 30 th June 1940. Except three judges the rest have agreed with Justice Jackson including Chief Justice Stone. The earlier dissenting view of Justice Stone became the majority opinion now.

The reasoning for overruling the earlier view appears to be highly unrealistic. The First Amendment is placed at a very high pedestal while at the same time declaring that the legislature can impose restrictions on rational basis only to prevent grave and immediate danger to the interest of the State. Referring to the earlier majority view of Frankfurtur in Gobitis case that courts do not have expertise in matters pertaining to education, the majority opinion in an inconsistent manner declares:

We cannot, because of our modesty estimates of our competence in such specialities as public education, withhold the judgment that history authenticates as the function of this court when liberty is infringed.

Adherence to flag salute was viewed very disproportionately by comparing it with Roman Empires attempt to stamp out Christianity and Russias action in exiling dissidents to Siberia. The flag salute issue was magnified as a totalitarian measure which would only achieve:

the unanimity of the graveyard. The existing order could be challenged by dissent which is constitutionally protected is Justice Jacksons belief:

20

We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

In a powerful dissent Justice Frankfurtur (a jew) gave vent to his dissatisfaction and anguish. Striking a personal note he declared: One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution.

Cautioning that personal opinion should not colour the judicial verdict he declared that the duty of a judge in deciding whether the claim of the State to enforce laws within its competence or the refusal of an individual to obey the law because of the demands of his conscience is not that of the ordinary person.

The due process clause cannot give power to the court authority to deny to the State of West Virginia to enact the law in question the object of which is promotion of good citizenship. He drew support from Justice Holmes who held the view that legislatures are ultimate guardians of the liberties and welfare of the people in quite as a degree as the courts which is the very essence of the American Constitutional system and democratic conception of the society. Justice Frankfurtur also drew support from the view of Justice Holmes that responsibility for legislation lies with the legislatures answerable directly to the people and this courts only and very narrow function is to determine whether within the broad grant of authority vested in legislatures they have exercised the judgment for which reasonable justification can be offered.

Posing the precise question namely the right of the State to compel participation in flag salute by those who choose to attend the public schools, he declared that legislative power is not absent when a non discriminatory civil regulation touches conscientious scruples or religious belief of an individual or group. The States need not justify flag salute as

21

the only measure for promoting good citizenship but merely as one of diverse means for accomplishing a worthy end. He ruled that: this court is not the organ of Government to resolve doubts as to whether it will fulfill its purpose. Only when a reasonable mind entertains doubt the court can deny to the State the right to resolve doubts their way and not ours.

The refusal to salute the national flag on grounds of religious belief was upheld by the Supreme Court as we have seen on the basis of the First Amendment concerning Establishment clause and Free Exercise of Religion. The second limb of the First Amendment prohibits the Congress from making any law abridging the freedom of speech... Cases dealing with the second limb do not fall within the ambit of the present lecture, and so I have omitted them.

Compulsory Military Service and Religious Belief: Duty to defend the nation by all able bodied persons by joining the armed forces is considered in all countries as an act of patriotism. If a person tries to avoid such a duty on the ground that his conscience does not permit because of his religious belief whether he can be excluded from military duty? The University of California by virtue of the provisions contained in the State Constitution issued a direction that all able bodied students below the age of twenty seven in the University should enroll in and complete a course in military science. The guardians and the parents of the students belonging to Methodist Episcopal Church and of the Epworth League questioned the Constitutionality of the above direction in Hamilton Vs Regents of University of Californiaxxiv. The above religious organization passed resolutions between 1928 and 1933 renouncing war as an instrument of National Policy and reiterating full faith in the efficacy of Paris Peace Pact which had renounced war and opted for resolution of disputes by peaceful means. The law was challenged on the ground that persons belonging to the above religious organizations are bound by the tenets and discipline of their religion that: war, training for war and military training are immoral, wrong and contrary to the letter and spirit of ---- the Christian religion.

22

The Supreme Court upheld the action of the University. The opinion of the court was delivered by Justice Butler. The reasoning of the court is very convincing. The court accepting the fact that the due process clause includes the right to entertain beliefs and doctrines on which students base their objections to join the Military training. There was no compulsion for them to join the University and when they are receiving education offered by the State they cannot insist upon exemption from the prescribed course because of their religious belief. It is the duty of the Federal and State Governments to maintain peace and order and just enforcement of law: every citizen owes the reciprocal duty according to its capacity to support and defend the Government against all enemies.

The amplitude of the Fourteenth Amendment, the court held would not allow a person to escape from his duty to the State however arduous it may be. An earlier judgment of the Court in Jacobson Vs Massachusettsxxv in which the view of the court Stated in a different context was restated: .And yet he may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense.

When the duty of the State to protect its citizens and the corresponding obligation of the citizen to support and defend the

Government was put on a high Constitutional pedestal justified by the Fourteenth Amendment, objections based upon conscience and religion do not arise out of the Constitution but from legislation enacted by the Congress and this was made explicit by the court in the Hamilton case xxvi. Every State has got authority to train its able bodied citizens and entrust them with a duty to serve in the army or police force is put beyond the pale of any legal doubt.

23

Justice Cardozo correctly reStated the legal principle that courts should not interfere in matters of religious policy. He drew the distinction between free exercise of religion and instruction in military science. Instruction in military science is not instruction in the practice or tenets of a religion. Neither directly or indirectly is government establishing a State religion when it insists upon such training. Instruction in military science, unaccompanied by any pledge of military service, is not an interference by the State with the free exercise of religion when the liberties of the Constitution are read in the light of a century and a half of history during days of peace and war.

Misguided martyrdom in the words of Cardozo: One who is a martyr to a principle which may turn out in the end to be a delusion or an error --- does not prove by his martyrdom that he has kept within the law.

But in subsequent legislations enacted by the Congress and different States where exemption was provided from military service on the basis of conscience grounded in religious belief, the Supreme Court watered down the above principle by giving sometimes narrow interpretation and sometimes wider interpretation to the objections raised.

Supreme Being Discussed and Explained -

Whether religious belief could save a person from participation in war was examined by the Supreme Court in United States Vs Seegerxxvii. The Universal Military Service and Training Act by Section 6 (j) exempts from combatant service in the armed forces those who are consciously opposed to participation in war by reason of their religious training and belief i.e an individuals belief in relation to a Supreme Being involving duties superior to those arising from any human relation, but (not including) essentially political, sociological, or philosophical views or a merely personal moral code.

The exemption includes those who base their views on political, sociological or economic considerations that war is wrong. The narrow

24

question the court discussed is whether the expression Supreme Being as used in section 6 (j) means the orthodox God or the broader concept of a power or being a faith to which all else is subordinate or upon which all else is ultimately dependant.

The opinion of the court was by Justice Clark and a separate opinion was given by Justice Douglas concurring with Clark. What was the intention of the Congress in using the phrase Supreme Being was considered by Justice Clark. The judge said that there are 250 sects inhabiting the United States including Hindu religion which describes the Supreme Being as transcendental reality which is truth, knowledge and bliss and Buddhists who strive for a State of lasting rest through self denial and inner purification and concluded that the Congress deliberately substituted the phrase Supreme Being for the expression God.

Justice Clark observed that inspite of the illusive nature of the enquiry, there are certain guidelines available. The Congress adopted the language of Chief Justice Hughes in United States Vs Macintosh xxviii. The essence of religion is: belief in relation to God involving duties superior to those arising from any human relation. The test laid down was whether a sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption, comes within the statutory definition.

This test was evolved in order to avoid imputing to the Congress an intention to classify different religious beliefs, exempting some and excluding others. Reference was made to the House debate on the bill and the Statements made by some of the Congressmen. Two precedents United States Vs Kauten and Herman Berman Vs United States were referred to in which it was held that exemption must be based solely on religious training and belief. The conclusion reached is that a valid exemption from religious service should be based on grounds that can

25

fairly be religious and that was the policy of the Congress in enacting the law.

The truth of a belief was not open to question but the question to be considered was whether the belief was truly held. The use of the words merely personal in the opinion of the court are intended to restrict the exception to a moral code which is not only personal but which is the sole basis for the registrants belief, and is in no way related to a Supreme Being.

Justice Douglas in his concurring judgment referred to both Hinduism and Buddhism among the faiths and reached the conclusion that Hinduism believes in one single God, the eternally existent one being, although Hindus worship many deities. The expression Supreme Being has no narrow technical meaning. He also referred to the philosophy of Sankara in which the material world is conceived as

illusion in highest truth. He referred to Buddhism that Buddhism knew no God and that belief in God was not essential for Buddhism. The Buddhists concept of Nirvana he equated with the State of oneness with God, the belief of some Christian mystiques and he concludes that Buddhism tolerates one God. The presence of Buddhist sect in Hawai was also taken note of by Douglas to reach the conclusion that the expression Supreme Being was not used in a narrow sense by the Congress. He agreed with the majority opinion of the court that any person opposed to war on the basis of a sincere belief, which in his life fills the same place as a belief in God fills in the life of an orthodox religionist is entitled to exemption under the Statute.

The abstract concept of Supreme Being was explained by the Court in a realistic manner taking note of the fact that several religious sects are inhabiting the United States and that no single religious sect should be allowed to take advantage of its own concept of Supreme Being, to the exclusion of the other Sects. Both theists and non theists beliefs have been referred to and the ultimate conclusion of the court is that all religions believe in the existence of the Supreme Being whether the same is worshipped as one God or the worship extends to worshipping many deities as incarnation of one God.

26

Justice Harlan who joined the opinion of the court in Seeger case declared subsequently while writing his concurrent opinion in Welsh Vs United Statesxxix that he had gravest misgivings whether what was done was a legitimate exercise in statutory construction. In Welsh case the question was whether the exemption on the basis of individuals conscience is to be given effect to only when his views emanate from theistic religious belief and whether Congress could enact such a law. In his concurrent opinion Justice Harlan criticized the Seeger judgment very severely on the ground that the benefit of exemption Congress intended was only for those who entertain religious beliefs and not other beliefs. Belief in Supreme Being must be confined only to religious belief and theistic and non theistic beliefs should not be treated alike. He referred to the dissenting opinion of Justice Hughes in United States Vs Macintoshxxx, that the essence of religion is belief in a God involving duties superior to those arising from any human relation. The language of section 6(j) of the Military Training and Service Act dealing with exemption to conscientious objectors clearly draws a distinction between theistic and non theistic religions. Having expressed his disagreement to the view taken in Seeger on the question of construction of the statute Harlan joined the others in holding that having chosen to exempt it (the Congress) cannot draw the line between theistic or non theistic religious belief on the one hand and secular belief on the other. Such distinction is not compatible with the establishment clause of the First Amendment.

Conscientious objection to participate in a particular war:

Forty one years after Macintosh case the question presented for resolution in Gillette Vs United Statesxxxi was: whether the exclusionary provision concerning conscientious objectors to war and for military service would cover an objector to a particular war but not war in general? The Petitioner Gillette was convicted of willful failure to report for induction into the armed forces. His defense was that he was entitled for exemption from induction as a conscientious objector to war. He had no objection to participate in a war of national defense or war sponsored by United Nations as a peace keeping measure, but his opposition was to participate in American Military operations in Vietnam, which he

27

characterized as unjust. Justice Marshall (with the exception of Justice Douglas who dissented) delivering the opinion of the Supreme Court ruled that the exclusionary clause would not cover such an objector. The exclusionary provision as contained in Section 6(j) is to the effect that anyone by reason of religious training and belief is conscientiously opposed to participation in war is exempt from the military service. The Petitioners reliance upon Seeger and Welsh cases was held to be misplaced. The question for consideration was not whether the Petitioners beliefs concerning war are religious in nature. The court also refused to go into the question whether conscientious objection to a

particular war falls within the ambit of Section (j). The intention of the Congress was made the foundation for the decision. Marshall declared : We hold that Congress intended to exempt persons who oppose participating in all war- participation in war in any form and that persons who object solely to participation in a particular war are not within the purview of the exempting section, even thought the latter objection may have such roots in a claimants conscience and personality that it is religious in character. (emphasis added)

The argument of the Petitioner that when statutory sanction was accorded to conscientious objection to all war but not objection to a particular war it would amount to defacto discrimination amongst religions did not find favour with the court. Explaining that neutrality in matters of religion is also consistent with benevolence by way of exemption from onerous duties, the conclusion was drawn: so long as an exemption is tailored broadly enough that it reflects valid secular purposes--- the relevant individual belief is simply objection to all war, not adherence to any extraneous theological viewpoint. The States contention that opposition to a particular war necessarily involves a judgment that is political and particular, one based on the same political, sociological and economic factors that the government necessarily considered in deciding to engage in a particular conflict was not fully accepted but the underlying principle behind that contention received the acceptance of the court. The courts reasoning is:

28

it is undoubted that the nature of conscription , much less war itself, requires the personal desires and perhaps the dissenting views of those who must serve to be subordinated in some degree to the pursuit of public purposes. It is also true that opposition to a particular war does depend inter alia upon particularistic factual beliefs, and policy assessments, beliefs and assessments that presumably were overridden by the government that decides to commit lives and resources to a trial of arms.

The conclusion reached is that it is supportable for the Congress to have decided that the objector to all war to all killing in war has a claim that is distinct enough to justify special status while the objector to a particular war does not.

In his dissenting judgment, Justice Douglas examined the question of just and unjust war from a Christian point of view, adverted to the horrors of modern war and the moral duty of Catholics not to participate in an unjust war. He pointed out that the welfare of a single human soul was the ultimate test of the vitality of the First Amendment. The determination of just and unjust war must be viewed from the guidelines provided by the Church. The personal decision of the individual on the basis of his conscience must be the determining factor ascertained on the basis of the evidence available.

Broadly Stated the majority view appears to be that objection based upon conscience must be in relation to the very concept of war but not with reference to the subjective notions of an individual. If the preference of an individual to opt for the exclusionary provision is to be accepted, the court felt that many a person without any genuine conscientious objection may escape military training which would amount to undermining the collective will of the society as reflected in the statute.

Prohibition of Bible reading in public school: and Neutrality of the State:

The Pennsylvania State by a law introduced compulsory reading of Holy Bible on each school day in all public schools. The requirement of the law was that Bible should be read without any comment and students

29

were exempted only upon written request of the parents and guardians. The reading of the Bible was broadcast to each room in the school building followed by recitation of the Lords prayer together with the pledge of allegiance to the flag in unisom. In Abington School District Vs Schemppxxxii with the exception of Justice Stewart all the judges of the American Supreme Court declared the same as unconstitutional. Justice Clark who delivered the opinion of the court, after referring to the earlier precedents analysed the concept of neutrality of the State in matters of religion declared that neutrality is the requirement of both the Establishment Clause and Free Exercise Clause in the First Amendment. The former (Establishment Clause) prohibits official support to tenets of any religion. The latter (Free Exercise Clause) recognizes the right of every individual to choose his own religion and religious observances free of any compulsion from the State. The two clauses may overlap. The test is what are the purpose and the primary effects of the questioned enactment? Applying the Establishment Clause principles to the requirement of reading of Holy Bible and recitation of Lords prayer by the students, Justice Clark observed that they are held in the school building under the supervision and participation of the school teachers. The contention of the State that the law promotes moral values and achieves secular purpose was negatived holding that the exercises are religious in character.

But even if its purpose is not strictly religious, it is sought to be accomplished through readings, without comment, from the Bible.

He accepted the reasoning that Ones education is not complete without a study of comparative religion or the history of religion The Bible is worthy of study for its literary and historic quality.

But held that the exercises in question do not fall into this category.

It appears rather paradoxical that while admitting that without study of religion ones education is not complete and Bible is worthy of study, the court none the less ruled that recitation of ten verses from Bible every

30

day in school forms part of religious exercise forbidden by the First Amendment. How recitation of holy Bible without comment is different from study of Bible, has not been dealt by the court.

In his concurrent judgment justice Douglas found that the State is conducting a religious exercise under the impugned law and that cannot be done without violating the neutrality required of the State. The public schools are run with the State funds and if Bible reading and recitation of prayer are permitted by law it amounts to State contributing money although in a minor degree for religious purpose in violation of the Establishment Clause.

Another judge Justice Brennan in his concurrent opinion quoting the English political philosopher John Locke about the separation of the religion from the business of civil government observed that:

the line which separates the secular from the sectarian in American life is illusive. The official involvement, according to Justice Brennan, should not be to such an extent: as to prefer, discriminate against, or oppress a particular sect or religion.

The reasoning slightly strikes a different note. It is not clear whether it could be said to be lawful if religious activity of the State did not fall within the above parameters, namely, preference, discrimination or oppression. Tracing the history of the American nation and the diverse people inhabiting the United States as compared with the past, Justice Brennan commented: Today the nation is far more heterogeneous religiously, including as it does substantial minorities not only of Catholics and Jews but as well of those who worship according to no version of the Bible and those who worship no God at all.

Explaining that the public schools which are funded by the State serve a uniquely public function facilitating an atmosphere enabling the

31

children to assimilate a heritage common to all American groups and religions, Justice Brennan declared: This is a heritage neither theistic or atheistic , but simply civil and patriotic.

A clear distinction was made by Justice Brennan between Hamilton case and Barnette case. In Hamilton case the requirement of military service for young adults was upheld because of voluntary attendance at college, whereas Hamilton case was concerned with involuntary attendance of young school children and that warranted a difference in constitutional results.

The dissenting judge justice Stewart viewed the whole question from a different angle. When there is a provision in the law allowing students to abstain (enabling provision) the law should be upheld especially when there is no evidence of any coercion upon students who did not want to participate. On this aspect he wanted the matter to be remitted for further evidence.

Legal compulsion to send children to schools and Religious Beliefs:

Religious beliefs are so diverse and may sound peculiar and uncommon. There is a community in the United States owing allegiance to Amish Mennonite Church which had refused to send their children to public or private schools after they completed their eighth grade. It was their belief that sending children to High School was contrary to their religion and way of life and that it would endanger their own salvation. The State of Wisconsin by legislation required compulsory attendance in schools of all children until they attained the age of sixteen. The Amish community in Wisconsin Vs U.Sxxxiii challenged the law as violative of the Free Exercise Clause of the First Amendment. The evidence disclosed that the Amish community insulated themselves from the modern world rejected the competitive spirit and material success. Their devotion was to a life in harmony with nature towards soil. Their objection was that their values are at variance with the values taught at higher education level. The community had accepted the importance of elementary education

32

through first eight grades since the children must acquire basic skills in the three Rs in order to read Bible, to be good farmers and citizens. The majority opinion delivered by Justice Burger upheld the contention of the Amish community and declared that their children were entitled to be exempted from compulsory attendance. Whether the State interest is of sufficient magnitude to override the claims based on the First Amendment was the question considered and the answer given was that the States interest in Universal compulsory education is not absolute to the exclusion or subordination of all other interests. After going through the evidence about the practices and beliefs of the Amish community, the Court concluded: Giving no weight to such secular considerations, however, we see that the record in this case abundantly supports the claim that the traditional way of life of the Amish is not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living

The way of life practiced by the majority of the population is not always right was emphasized by the majority. A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different. A factual finding was also recorded that Amish families employing their children on family farms was not injurious to their health and that the parents are not exploiting their children.

The dissenting opinion of Justice Douglas while accepting about the sincerity of the practices of Amish religion, expressed the view that: .if the parents in this case are allowed a religious exemption, the inevitable effect is to impose the parents notions of religious duty upon the children.

The majority sought to get over this aspect by observing that it is not an issue in this case and that children are not parties to the litigation, a reasoning which sounds odd. Whether the rights of the children are involved is the primary question that surfaced in this case since the impugned legislation was for the welfare of the children. The dissenting

33

opinion realistically highlights the undeniable truth that what is involved in the case is the future of students not of the parents. If a parent keeps his child out of school beyond the grade school, then the child will be forever barred from entry into the new and amazing world of diversity that we have today. The child may decide that is the preferred course, or he may rebel. It is the students judgment, not his parents, that is essential if we are to give full meaning to what we have said about the Bill of Rights and of the right of students to be masters of their own destiny.

Religious Belief and the Right to claim employment benefits:

A lady by name Sherbert was removed from employment because she would not work on Saturday the Sabbath Day of her faith. When she failed to get any other employment because of her insistence that she would not work on Saturday she claimed unemployment benefits under the South Carolina Unemployment Compensation Act. The law provided that the claimant should work and be available for work to be eligible for benefits. If without good cause he failed to accept the available suitable work when offered he would not be eligible for the benefits. This law was challenged in Sherbert Vs Vernerxxxiv. The State Supreme Court ruled that there was no restriction on her freedom of religion and therefore she was not entitled to claim the employment compensation. That was reversed by the Supreme Court. The majority speaking through Justice Brennan posed the question whether disqualification for benefits imposed any burden on the free exercise of the appellants religion (Seventh Day Adventist Church) and answered the question in the affirmative. Even if the burden is indirect the law becomes unconstitutional. The choice for the appellant was to follow the precepts of the religion and forfeit the benefits or abandon the religious precepts and accept the work. Rejecting the contention that unemployment benefits are only a privilege but not a right, the majority held that: it is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege. The court also adverted to the aspect of discrimination. The law permitted employees to abstain from work on Sunday if they are

34

consciously opposed to Sunday work. A different yardstick was applied in the case of those not willing to work on Saturday. The right to receive public welfare legislation benefits should not be denied to any religious group the majority concluded citing Everson Vs Board of Education.

Religious Belief and Employment in factories manufacturing military vehicles:

In Thomas Vs Review Board of Indiana Employment Security Divisionxxxv the question arose religion under the First whether the right of free exercise of could extend to claiming

Amendment

unemployment compensation benefits when a worker voluntarily left the job of working in a Department that fabricated tarots for military tanks. He was a Jehovahs witness and he claimed that according to his religious belief he would not participate in the production of weapons. His initial appointment was in a foundry which fabricated sheets for industrial trucks and when that was closed he was transferred to the Department which fabricated tarots for military tanks. Chief Justice Burger delivered the opinion of the court. According to the majority opinion the State was bound to justify the inroad on religious liberty in order to achieve some compelling State interest. The plea of the State that the unemployment fund could be overburdened if people were allowed to quit jobs for personal reasons, was rejected holding that: There is no evidence in the record to indicate that the number of people who find themselves in the predicament of choosing between benefits and religious beliefs is large enough to create widespread unemployment, or even to seriously affect unemployment and no such claim was advanced by the Review Board.

Justice Rehnquist in his dissenting opinion described the situation : I believe that the decision today adds mud to the already muddied water of First Amendment jurisprudence.

The welfare legislation has greatly magnified the potential for conflict between the two clauses of the First Amendment - Free Exercise

35

and Establishment clauses. The two clauses have received overly expansive interpretation by the court. By broadly construing both Clauses, the court has constantly narrowed the channel between the Scylla and Charybdis through which any State or federal action must pass in order to survive constitutional scrutiny.

Rehnquist held that the State has not discriminated on the basis of the religious belief. It is a general statute to advance secular goals and the Free Exercise Clause does not require the State to conform the statute to the dictates of religious conscience of any group. One important question raised by Rehnquist was that had the State of Indiana legislated permitting unemployment benefits to those who quit their jobs for religious reasons it would be plainly violative of the Establishment Clause. When financial benefits have to be given the statute must necessarily enquire whether the claimants belief is religious or whether it is sincerely held. He referred to the finding of the State court that the basis and precise nature of the belief of Thomas was unclear and it was more personal philosophical choice. Since he left because of personal reason he was not entitled to receive the benefits.

Prohibition of Ritual Sacrifice and Religious Beliefs:

The city council of Hialeah passed a resolution expressing concern over religious practices inconsistent with public morals, peace or safety and declared the citys commitment to prohibiting such practices. An ordinance was issued making it punishable, anyone who unnecessarily or cruelly kills an animal as a sacrifice. Sacrifice is defined as unnecessarily killing an animal in a ritual not for the primary purpose of food consumption. Licensed Food Establishments are exempted from the operation of the slaughtering of animals. In the case of Church of Lukumi Babalu Aye Vs City of Hilleahxxxvi the question was whether animal sacrifices which was a public form of devotion of the members of Santeria religion are liable to prosecution. The people of the religion kill animals by cutting their carotid arteries, cook and eat them following Santeria ritual. The claim of the Santeria religion is that the law was violative of the Free

36

Exercise Clause of the First Amendment. The District court as well as the First Appellate court held that the compelling governmental interest in preventing public health risk and cruelty to animals fully justify the absolute prohibition on ritual sacrifice.

Whether there is compelling interest of the State in order to justify the law was examined by the Supreme Court. The opinion of the majority was rendered by justice Cannery. If secular meaning is not discernible from a law which refers to religious practice it lacks facial neutrality. Admitting that the words sacrifice and ritual have a religious origin it was held that the Free Exercise clause protects against governmental hostility which is masked as well as overt. After examining the record Justice Cannery held that the record compels the conclusion that suppression of the central element of the Santeria worship service was the object of the ordinance. There was an improper attempt to target Santeria as evident from the citys resolution which mentioned the concern of the citizens about the practices of certain religions. The Santeria sacrifice was prohibited whereas killing of animals in general was not prohibited. The legitimate governmental interest could be

achieved by measures that fall short of prohibition of all Santeria sacrifices. The proceedings of the city council as to what happened the fact that the people were jailed for practicing Santeria religion and also the sayings in the Bible that animals are sacrificed only for consumption was also relied upon to show that the Santeria religion was targeted. The words of the Chaplin of Hialeah Police Department exhorting the city council not to permit Santeria Church to exist was cited in support of the conclusion that there was animosity to Santeria religion. The majority declared: The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause.

The reference to other types of animal killings for non religious reasons is cited in support of the conclusion that he law is invalid. The aspect of health risk advanced by the city council was rejected observing that:

37

animal carcasses are the same whether Santeria sacrifice or some non religious killing preceded it.

For rejecting the health risk argument the majority referred to the fact that hunters were permitted to eat their kill and fishermen their catch without undergoing governmental inspection. But Santeria was treated differently. Striking down the challenged provisions the majority concluded:

A law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases.

The Position in India: In the Indian Constitution, religion finds place in Articles 15(1) xxxvii, 15(2), 16(2)xxxviii, 25xxxix ,26xl, 27xli, 28xlii, 29xliii and 30xliv. Religion is covered indirectly in Article 17 by which untouchability was abolished. They are judicially enforceable fundamental rights.

The American example of the Constitution erecting a strict wall of separation was not followed by the Founding Fathers of our Constitution. In the judicial interpretation of the provisions concerning religious freedom although in certain cases our Supreme Court referred to American decisions but they have not been treated as precedents and our Supreme Court followed a different line of approach preferring the views of the Australian High Court.

The three important religions in India are Hinduism, Islam and Christianity with considerable numerical strength. Buddhism , Jainism and Sikhism, strictly speaking, are not religions totally different in all respects from Hinduism: that is why Explanation II to sub clause (b) of clause (2) of Article 25 says that reference to Hindus includes all persons professing Sikhism, Jainism and Buddhism. The following are the population details of various religions in India as per 2001 census (as quoted on page 14 of the Report of the National Commission for Religious and Linguistic Minoritiesxlv) (Justice Ranganath Misra Commission).

38

Hindus Muslims Christians Sikhs Buddhists Jains Zoarstrians (a microscopic minority)

80.5% 13.4% 2.3% 1.9% 0.8% 0.6% 0.0069%,

Article 25 to 28 which deal with religious freedom are largely based upon clause (2) of Article 44 of the Irish Constitution. Article 44 reads as follows: Article 44: (1) The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion. (2.1) Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen. (2.2) The State guarantees not to endow any religion. (2.3) The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status. (2.4) Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to effect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school. (2.5) Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious and charitable purposes. (2.6) The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation.

It is a matter of Constitutional history that the Constituent Assembly set up an Advisory Committee consisting of 75 members. This large body in turn appointed sub committees to study and report on matters concerning, interalia, Rights of Minorities and Fundamental Rights: Right

39

to religious freedom came under the purview of the subcommittee on Fundamental Rights. How the Members of Constituent Assembly viewed matters concerning religion suitable for incorporation in the Constitution may now be noticed. The following table indicates the draft Articles and their corresponding numbers in the final Constitution.

Articles in Final Constitution

Corresponding Articles in Draft Constitution. Draft 9 10 19 20 21 22 23 23A

Final 15 16 25 26 27 28 29 30

Pandit Jawaharlal Nehru, the First Prime Minister of India while moving the motion on pledge by members when India emerged as a free country from the British Rule, emphatically declared on the midnight of 14 / 15th August, 1947.

.India does not belong to any one party or a group of people or caste. It does not belong to the followers of any particular religion. It is the country of all of every religion and creed.

The foundation for State neutrality and strict secular approach was laid at the very moment of the countrys independence, prior to the Constituent Assembly actively started discussing the Draft Constitutionxlvi.

The Constitutional provisions clearly indicate that the right to profess, practice and propagate religion and the freedom of conscience are not absolute rights; they are subject to public order, morality and

40

health and other provisions of Part III. The State is empowered to make laws restricting the economic financial, political or other secular activity associated with religious practices. The State also is empowered to

enact laws providing for social welfare reform and throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. The abominable practice of untouchability prevalent in Hindu society and the many social disabilities and inequalities inflicted upon large numbers of Hindus are the primary reasons for incorporating these restrictions. The absence of an acceptable definition of Hinduism and the various social inequalities that crept into the Hindu religion necessitated the Constitution makers to think of large scale reforms by empowering the State to take up legislation in that regard. Dr. Ambedkar Chairman of the Drafting Committeexlvii while introducing draft Article 20 corresponding to present Article 26 had clearly Stated that the draft Articles 19 and 20 (corresponding to Articles 25 and 26) do not confer absolute rights in matters relating to religion.

Not only different religions but also different denominations are protected. Article 26 takes care to incorporate the three restrictions namely public order, morality and health subject to which every religious denomination or any section thereof has a right to establish and maintain institutions for religious and charitable purposes, to manage their affairs in matters of religion, to acquire movable and immovable property and to administer such property in accordance with law. Religious freedom as contained in Article 25 is subject to four restrictions public order, morality, health and other provisions of Part III (Fundamental Rights) whereas Article 26 which confers rights on religious denominations incorporates only three restrictions public order, morality and health. The freedom given to the religious denominations is confined to manage their own affairs in matters of religion.

The extent of State control in the exercise of legislative power flowing from the Constitutional provisions and the scrutiny of such legislations by the judiciary as well as the rights of individuals as members of religion and religious denominations need to be noticed.

41

Protection of Religious Beliefs:

Muslim law permits a man to have four wives at a time. Hindu Law prior to1955 permitted bigamous marriages. The Bombay Legislature in 1946 enacted The Bombay Prevention of Hindu Bigamous Marriages Act, the direct effect of which is imposition of monogamy upon Hindus whereas Muslims were left untouched. This Act was challenged in the Bombay High Court in the State of Bombay Vs Narasuappaxlviii on two grounds: (1) it is discriminatory since Hindus alone were brought under its purview leaving out Muslims; and (ii) It could not be treated as a measure of social reform since the concept of social reform should encompass all sections. Two eminent judges of the Bombay High Court, Chief Justice Chagla and Justice Gagendragadkar (as he then was)

who dealt with this case delivered two separate but concurrent judgments. The first contention based upon Article 14 was negatived by Chief Justice Chagla holding that Article 14 does not lay down that every legislation:

must necessarily be of an all embracing character. The State rightly decided to bring social reform by stages and the stages may be territorial or they may be community wise.

The religious belief of Hindus that polygamy is part of Hindu religion was examined and rejected even otherwise the right of the State to legislate as a measure of social reform under Article 25 (2) (b) was recognized by the court. The fundamental right guaranteed under Article 25, inter alia, being subject to other provisions of Part III logically must lead to the conclusion that any legislation interfering with religious rights of a community can be challenged on grounds of breach of fundamental rights. Obviously to get over this hurdle springing from both Articles 14 and 15 (1) the court ruled that the framers of the Constitution wanted to leave personal laws outside the ambit of Part III, the apparent inconsistency from a legalistic point of view is that if the personal laws are outside the ambit of Part III, the validity of the questioned legislation on the touchstone of Articles 14 and Article 25(2) (b) was unsupportable. From a sociological point of view the court has examined the advancement achieved by Hindus and Muslims, recording the finding that

42

Hindu society was more ripe for reform. For the first time the Bombay High Courts ruling lays the foundation that, (1) personal la w is outside the scope of judicial scrutiny with reference to the rights guaranteed under Part III. (2) Legislation could validly be made providing for State intervention in religious matters and (3) Whether a particular claimed practice or belief is part of the religion can be examined in the determination of the constitutionality of the law concerning or touching upon that belief.

In the development of the Indian Constitutional law three decisions rendered prior to 1970, require close examination in the context of the freedom of religion. (1) Commissioner Hindu Religious Endowments, Madras Vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt xlix (commonly referred to as Shirur Mutt case). (2) Sri Venkataramana Devaru and Ors. Vs The State of Mysore and Orsl; and (3) Sastri Yagnapurushadji and Ors. Vs Muldas Bhudaras Vaishya and Anrli.

All the three decisions are by Constitution Benches. The first one is by seven judges and the other two by Benches of five judges. What is meant by religion was examined in Shirur Mutt and Yagnapurusha (for short Yagnapurusha). What is a denomination, what are the rights of members of a denomination and what is the scope of the expression religious belief also were considered in the Shirur Mutt case. It must be noticed at the outset that the court speaking through Mukherjee, J. clearly held in Shirur Mutt case that the American Supreme Courts view that religion has reference to ones views of his relation to his Creator and to the obligations they impose of reverence for His Being and Character and of obedience to His will is neither precise nor adequate. Articles 25 and 26 for the most part are based upon Article 44 (2) of the Irish Constitution and expressed a grave doubt whether our Constitution makers had in view the American Supreme Courts definition of religion when our Constitution was framed.

Explaining the concept of religion Mukherjea, J. said:

Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well

43

known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral part of religion, and these forms and observances might even extend to matters of food and dresslii.

Our Supreme Court has taken a very broad and realistic view as to what constitutes a religion. It doesnt confine to belief in God. It extends to not merely following the rituals and ceremonies but encompasses even matters of food and dress. It is not necessarily theistic. While the American Supreme Court had engrafted three limitations on grounds of morality, public order and social protection, our Constitution makers have incorporated the limitations in Articles 25 and 26 dealing with the religious freedom. Justice Mukherjea declared that: the language of Articles 25 and 26 is sufficiently clear to enable us to determine without the aid of foreign authorities as to what matters come within the purview of religion and what do not.

The principal question for determination in Shirur Mutt case concerns the constitutionality of certain sections of Madras Religious Endowment Act 1951. The specific question raised in relation to Article 25 is whether it is intended to protect the religious freedom of only individuals or whether it can be invoked in favour of an institution or organization. In regard to Article 26 the question raised is what is the scope of Article 26 (b) which speaks of management of its own affairs in matters of religion.

Examining the scope of Article 26 (b) which speaks of rights of every religious denomination and sections thereof to manage it own affairs in matters of religion, the court noticed that religious

denominations and sections could have other affairs which are not matters of religion and to which the guarantee under Article 26 (b) does

44

not apply. Posing the question where the line is to be drawn the court referred to clauses (c) and (d) of Article 26 which speak of acquisition of property and its administration in accordance with law and held that these two clauses (c) and (d) have been placed on a different footing from clause (b) which speaks of right to manage its own affairs in matters of religion. Article 26 (b) is a fundamental right which no legislature can take away whereas the rights conferred by clause (c) and (d) can be regulated by law. In the context of examination of what are matters of religion, while not agreeing with the views of the American Supreme Court, Justice Mukherjea stated the legal position thus: the guarantee under our Constitution not only protects the freedom of religion but it protects also acts done in pursuance of religion and this is made clear by use of the expression practice of religion in Article 25. Going by the Oxford Dictionary which defined denomination as a collection of individuals classed together under the same name : a religious sect or body having a common faith or organization and designated by a distinctive name, the court held that Shirur Mutt is a religious denomination. Mutts are centres of theological teaching and Shirur Mutt was established by Madhvacharya. Shirur Mutt was in

charge of Sivalli Brahmins who were followers of Madhvacharya. Not only denominations but sections of denominations also have the protection of Article 26 and therefore the protection extends to institutions as well as individuals.

Article 25 confers not only freedom to entertain religious beliefs but also to practice, propagate or disseminate the same. The argument that the propagation must be by the institutions and not the individuals was rejected holding: Institutions as such cannot practice or propagate religion; it can be done only by individual persons and whether these persons propagate their personal views or the tenets for which the institution stands is really immaterial for purposes of Article 25. It is the propagation of belief that is protected, no matter whether the propagation takes place in a church or monastery, or in a temple or parlour meeting.

45

It may appear that the above declaration of law is too wide giving scope to any individual to propagate anything of his choice in the guise of religious belief. But what needs to be noted is that the right is not absolute and unlimited. The right under Article 25 (1) is subject to limitations namely public order, morality and health and also other provisions of Part III.

The opinion of Chief Justice Latham in Adaliede Co. Vs The Commonwealthliii was held to apply fully to religious protection under the Indian Constitution. In the above case while interpreting Section 116 of the Australian Constitution which forbids the State from prohibiting free exercise of any religion. Chief Justice Latham held:

It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil Government should not interfere with religious opinions, it nevertheless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion. It appears to me to be difficult to maintain this distinction as relevant to the interpretation of Section 116. The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion.

Agreeing that the above opinion fully applies to the Indian context Justice Mukherjea referred to restrictions contained in Article 25 and 26 namely public order, morality and health.

The contention of the Attorney General that as per Article 25 (2) (a) all secular activities that may be associated with religion but do not really constitute an essential part of it are amenable to State regulation was rejected observing that the contention formulated in such broad terms cannot be supported. The court left it to the concerned religion itself to assert what its doctrines are and the court is empowered to enquire into whether the claimed religious practices are really covered by the doctrines of the religion itself. What is protected under the Constitution is not every religious belief but only essential parts of religion.

46

In the words of the court: what constitutes an essential part of a religion is primarily with reference to the doctrines of the religion. The type of rituals to be preferred, the recital of sacred text are all parts of religion and involvement of expenditure or employment of priests for above purposes would not make them secular activities of a commercial or secular character amenable to interference by the State. They are all religious practices falling within the ambit of Article 26 (b). The State can regulate only activities economic, commercial or political if they are associated with religious practices otherwise the State has no right to intervene.

The Australian High Courts decision in

Adaliede Coliv case

was referred to in support of the finding that religious activities have to be separated from non religious practices. The Australian case which is already mentioned supra relates to Jehovahs witnesses whose teachings and propaganda were prejudicial to war activities and when action was taken by the Government the same was challenged in the High Court of Australia. Chief Justice Latham upheld the action of the State declaring that Jehovahs witnesses were indulging in political activities and that protection of religion was not an absolute one. The privilege of freedom of religion must be reconciled with the sovereignty of the State to ensure peace, security and orderly living without which the Constitutional guarantee of civil liberty would be a mockery.

The divergence of judicial opinion between the highest courts in Australia and United States is clear. Section 116 of the Australian Constitution guaranteeing the freedom of religion was interpreted in a pragmatic way separating religious from non religious activity and testing the asserted religious activity with reference to its impact on peace security and orderly living. Although our Supreme Court referred to the American Supreme Courts decision in Gobitis caselv in which compulsory flag salute was upheld by the majority speaking through Justice Frankfurter and Barnette caselvi which had overruled Gobitis case, it can be safely inferred that our Supreme Court inclined to agree with Justice Frankfurters view in Gobitis case. Referring to two other cases as to what constitutes commercial activity and the conflicting views taken by the

47

American Supreme Court in Murdock Vs Pennsylvanialvii and Jones Vs Opelika, Justice Mukherjee observed that our Constitution makers have incorporated the restrictions in Article 25 and 26 unlike Australia and America where the right to freedom of religion is in unrestricted terms.

Examining the question as to whether the administration of a religious denomination can be taken over by the State, Justice Mukherjea held that it would amount to violation of Article 26 (b) which guarantees the Fundamental Right to every religious denomination and sections thereof to administer the property in accordance with law.

The further question of importance decided in Shirur Mutt case is that the Matadhipathi has a personal interest of a beneficial character and that the ingredients of both office and property blended together. The Mahant has a right to enjoy the property or beneficial interest so long as he is entitled to hold his office. Article 19 (1) (f) has been given a wide and liberal interpretation covering all types of interests which have characteristics of Property Rights. Article 19 (1) (f) was deleted from the Constitution by the Constitution (Forty Fourth Amendment) Act, 1978.

One more important principle laid down in Shirur Mutt case is that the officials and members of the public have no unregulated and unrestricted right of entry. Access to sacred parts of the temple where the deity is located must only be during fixed hours of worship. The sanctity of the inner sanctuary, the holy of holies must be preserved. In that view Section 21 which empowered the officials to enter the premises of any religious institution for exercising powers under the Act was held to be invalid.

Gowda Saraswath Brahmins are a Hindu religious denomination. A temple was established by the community at a place called Moolki in Mangalore Taluk. The idol installed in the temple is called Tirumalaivaru or Venkataramana. In 1947 the Legislature of the State of Madras enacted Madras Temple Entry Authorization Act for the purpose of removing disabilities imposed by custom and usage on certain classes of Hindus against entry into Hindu Temples. The trustees of the temple filed a suit for declaration under Section 2 (2) that the temple in question is not

48

covered by the Act since it was founded for the benefit of

Gowda

Saraswath Brahmins. During the pendency of the suit the definition was amended in 1949 to the effect that temple is: a place which is dedicated to or for the benefit of the Hindu community or any section thereof as a place of public religious worship.

After the Constitution came into force the Madras Legislature enacted in 1951 the Madras Hindu Religious and Charitable Endowments Act by which the power of Superintendence and control over temples and Mutts was vested in the State. Challenging the Act several Writ Petitions were filed and ultimately the matter reached the Supreme Court in Venkataramana Devaru Vs State of Mysore. The question before the Supreme Court was whether the temple was covered by the definition in Section 2(2) of the Act.

As no specific plea was taken in the first instance that it was not a public temple after the 1949 Amendment, the Supreme Court held that the temple is a public temple.

On the evidence adduced and accepted by the Madras High Court, the Supreme Court agreeing with High Courts view held that the temple is a denominational temple founded for the benefit of Gowda Saraswath Brahmin Community and the fact that other classes of Hindus were admitted freely into the temple would not have the effect of enlarging the scope of dedication into one for the public generally. The two important questions dealt by the court from the point of religious freedom are (1) Whether the management of the temple can exclude all persons other than Gowda Saraswath Brahmins from entering into the temple for worship on the ground that they have the right to do so under Article 26 (b) ? If the temple has that right under Article 26 (b), whether Section 3 of the impugned Act is valid enjoying the protection of Section 25 (2) (b)? and (2) whether Section 3 prevails over the right conferred by Article 26 (b). Discussing the first question as to the right of the temple to exclude others from entry into the temple the court ruled relying upon Shirur Mutt case that even practices which are regarded as part of religion are

49

covered by Article 26(b). Whether exclusion of persons

from temple

entry is a matter of religion according to Hindu Ceremonial Law was the question formulated by the Court. After referring to Upanishads and Agamashastras the conclusion reached by the court is that under the Hindu Ceremonial Law relating to temples, who are entitled to enter for worship where they are entitled to stand and worship and how the worship is to be conducted are all matters of religion.

The next important aspect is whether matters of religion covered by Article 26 (b) are subject to a law protected by Article 25 (2) (b). (Law relating to social reform and throwing open of temples to all sections of Hindus). The court noticed the apparent conflict between the two. If the right to exclude persons who are not entitled to participate in the worship is a guaranteed right under Article 26 (b) and the Constitutional protection of Section 3 of the impugned Act as being within the ambit of Article 25 (2) (b) being a law relating to social reform is indeed a very delicate question calling for great judicial Statesmanship for resolution. The caste system condemned by all the civilized sections of the society and the decisional law earlier declared by the Madras High Court that even public temples intended for all castes could impose restrictions regarding entry was referred to by the Court. The Madras High Courts decision in Venkatachalapathi Vs Subbarayudulviii was quoted: Temple, of course is intended for all castes, but there are restrictions of entry. Pariahs cannot go into the court of the temple even. Sudras and Baniyas can go into the hall of the temple. Brahmins can go into the holy of the holies.

As the actual participation of the excluded classes according to the traditional ceremonial law was insignificant, the court observed that the impugned Act was passed to remove the disabilities imposed by custom and usage. The court noticed the force in the argument that in Article 25 (2) (b) the words Hindu religious institutions of a public character do not cover denominational temples. Support for this argument was drawn from Article 17 contending that the object of Article 25 (2) (b) is to permit entry of the excluded classes into temples which were open to all other classes and denominational temples are excluded from the purview of Article 25 (2) (b) since they are founded for the benefit of particular

50

sections of Hindus. In other words if a temple is founded only for a particular section of Hindus it cannot be treated as Hindu Religious Institution of public character because of the protection it enjoys under Article 26(b). The court refused to accept this argument observing that no such limitation could be read into Article 25 (2) (b). The difference in the language between Article 25 and 26 with regard to the limitation imposed was highlighted in the arguments advanced on behalf of the temple. The rights conferred under Article 25 (1) are subject to public order, morality and health and to the other provisions of this part whereas in Article 26 only public order, morality and health are mentioned but not other provisions of this part. That 26 (b) must prevail over 25 (2) (b) because of the above distinction as the rights conferred upon religious denomination under Article 26(b) cannot be taken away by limitations contained in Article 25 (2) (power of the State to intervene). This contention was also rightly rejected on the ground that the words subject to other provisions of this part occur only in clause (1) of Article 25 and not in clause (2). The rights declared in clause (1) are subject to the other provisions of Fundamental Rights chapter and therefore this right is subject to the limitations of Article 25(2). A law falling within the ambit of Article 25 (2) (b) prevails over the rights conferred by Article 25 (1).

On the question as to the difference between the individual rights covered by Article 25 (1) and the denominational rights covered by Article 26 (b) the court explained that Article 25 (2) is much wider in its content and has reference to the rights of communities and controls both Articles 25(1) and 26 (b). By resorting to harmonious construction the apparent conflict between Article 26(b) and 25 (2) (b) was resolved by the Court by declaring that Article 26 (b) must be read subject to Article 25 (2) (b).

The denominational rights of the Gowda Saraswath community to conduct certain ceremonies on special occasions to the exclusion of others was recognized by the court. Except on those special occasions, the members of the public are entitled to enter the temple for worship.

The Rights of religious denominations again came up for judicial scrutiny in Sastri Yagnapurushadji and Ors. Vs Muldas Bhudardas Vaishya and Anrlix. What is Hinduism was elaborately discussed by the Constitution Bench, the opinion of which was delivered by Chief Justice

51

Gajendragadkar. Whether Swaminarayan sect was a distinct and separate religious sect unconnected with Hinduism was the question raised and considered. The enquiry was necessitated in the context of challenge to the Bombay Hindu Places of Public Worship (Entry Authorization) Act 1956 which was enacted for throwing open of places of public worship to all classes and sections of Hindus. The Swaminarayan sects contention was that the Act did not apply to them as they do not for part of Hindu religion. Section 3 of the Act declared that: Section 3. Notwithstanding any custom, usage or law for the time being in force, or the decree or the order of a court, or anything contained in any instrument, to the contrary, every place of public worship which is open to Hindus generally, or to any section or class thereof, shall be open to all sections and classes of Hindus; and no Hindu of whatsoever section or class, shall in any manner be prevented, obstructed or discouraged from entering such place of public worship, or from worshipping or offering prayers thereat, or performing any religious service therein, in the like manner and to the like extent as other Hindus of whatsoever section or class may so enter, worship, pray or perform.

This provision had overriding effect vis-a-vis all other laws, judgments and decrees of courts. The underlying object of Section 3 was to confer upon Harijans the same right to enter the temple for darshan as was available to all the other Hindus. The court posed the question who are Hindus and elaborately discussed the origin of the word Hindu, the views of Monier Williams, the definition of Hinduism as Stated in Encyclopedia of Religion and Ethics, Vol. VI, the opinion of Dr.

Radhakrishnan as to what Hinduism is, namely that it had originally a territorial and not a credal significance.

Dr Radhakrishnans views of Hindu religion as explained in his book the Hindu view of Life at page 12 was approvingly referred to: The Hindu civilization is so called, since its original founders or earliest followers occupied the territory drained by the Sindhu (the Indus) river system corresponding to the North West Frontier Province and the Punjab. This is recorded in the Rig Veda, the oldest of the Vedas, the Hindu scriptures which give their name to this period of Indian History. The people on the Indian side of the Sindhu were called Hindu by the Persian

52

and the later western invaders. That is the genesis of the word Hindu.

.Unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not worship any one God; it does not subscribe to any one dogma; it does not believe in any one philosophic concept; it does not follow any one set of religious rites or performances; in fact, it does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more.

The view of Monier Williams was also relied upon by the court:

The Hindu religion is a reflection of the composite character of the Hindus, who are not one people but many. It is based on the idea of universal respectively. It has ever aimed at accommodating itself to circumstances, and has carried on the process of adaptation through more than three thousand years. It has first borne with and then, so to speak, swallowed, digested, and assimilated something from all creeds.

After discussing in detail, the court laid down that one of the broad concepts of Hinduism is acceptance of Vedas as the highest authority in religious and philosophic matters. The court referred to the reformers of Hindu religion the establishment of Buddhism and Jainism and the importance of religious teachers like Swami Dayananda, Ramakrishna and Vivekananda and observed that: underneath the divergence of views there is a kind of subtle indiscernible unity which keeps them within the sweep of the broad and progressive Hindu religion.

The court then enquired into the question what according to Hinduism is the ultimate goal of humanity. The answer given is: It is the release and freedom from the unceasing cycle of births and rebirths; Moksha or Nirvana, which is the ultimate aim of Hindu religion and philosophy, represents the State of absolute absorption and assimilation of the individual soul with the infinite.

53

The tenets and practices followed by Swaminarayana sect

as

recorded by Monier Williams was examined by the court. In addition, the teachings of the sect as published in the Gazette of the Bombay Presidency was also taken note of by the court. After examining the teachings and principles of Swaminarayan the court concluded: Philosophically , Swaminarayan is a follower of Ramanuja, and the essence of his teachings is that every individual should follow the main Vedic injunctions of a good, pious and religious life and should attempt to attain salvation by the path of devotion to Lord Krishna.

Swaminarayan was a Hindu Saint. The sect is not a religion distinct and separate from Hindu religion and therefore the Swaminarayan temple falls within the ambit of Section 2 of the Act. The concluding part of the judgment shows the concern expressed by the court for social justice and the equal status to which persons of all sections of Hinduism are entitled. In conclusion, we would like to emphasize that the right to enter temples which has been vouchsafed to the Harijans by the impugned Act in substance symbolizes the right of Harijans to enjoy all social amenities and rights, for, let it always be remembered that social justice is the main foundation of the democratic way of life enshrined in the provisions of the Indian Constitution.

Was it really necessary for the court to examine the principles and practices of Swaminarayan sect? When there is acceptable and unimpeachable evidence that the temple in question was open to one section of Hindus evidently by operation of Section 3 all Hindus are entitled to enter. When Swaminarayan sect had access to Hindu

temples it was no longer open to that sect to claim that being a religious denomination it is entitled to have the fundamental right to bar the entry of other classes of people. Such a defense is not at all open to the Swaminarayan sect in view of the seven judge Bench in Shirur Mutt case categorically declaring that the denominational rights under Article 26(b) are subject to any law made under Article 25 (2) (b) (a law providing for social reform). There is little dispute that treating all Hindus as equal for purpose of temple entry is undoubtedly a measure of social reform.

54

There is also clear intrinsic evidence in the form of the finding recorded by the court that Swaminarayan sect being a brotherhood established by Swaminarayan aimed at reforming the Hindu religion. The sect believed that every individual should follow Vedic injunctions and should attempt to attain salvation by the path of devotion to Lord Krishna. Describing that the preachings of all religious reformers of Hindu religion basically subscribe to fundamental notions of Hindu religion and Hindu philosophy, the court observed: it has never been suggested that these sects are outside the Hindu brotherhood and the temples which they honour are not Hindu temples such as or contemplated by Section 3 of the Act.

After this conclusion no further enquiry was at all necessary to uphold the constitutionality of the section following the earlier binding precedent in Shirur Mutt case.

Why did the court elaborately enquire into the rules of Satsangis? The answer according to Marc Galanter is that the earlier decision of the Supreme Court that what is religion is to be determined by the doctrines of each religious community itself (Sardar Syedna Taher Saifuddin Saheb Vs The State of Bombay)lx was a pernicious doctrine giving opportunity to obscurantist religionists to place beyond the State power practices that are inimical to progress. Being a strong reformist Chief Justice Gajendragadkar asserted the right of the court to an independent power to lay down what are the religious practices protected by Articles 25 and 26lxi.

Saifuddin Saheb case mentioned by Marc Galanter needs immediate notice. Whether a religious denomination has a right to excommunicate its members resulting in their losing civil rights was the question considered by the Constitution Bench in this case. The challenge was to the validity of Bombay Prevention of Excommunication Act 1949. Syedna Saifuddin Saheb is a head priest of Dawoodi Vohra community, a religious denomination. As Dai- ul Mutlaq he enjoyed civil power as head of the sect and as trustee of property. As a religious leader he enjoys ecclesiastical power. One of the duties of his is to

55

manage the properties of the community which are all under his direction and control. He has the power of excommunication the result of which is exclusion from the exercise of religious rights. Section 3 of the impugned Act invalidates all excommunication of members of any religious community. Excommunication is defined by Section 2 to mean:

the expulsion of a person from any community of which he is a member depriving him of rights and privileges which are legally enforceable by a suit of a civil nature by him or on his behalf as such member.

It is clear from the explanation that the right to office or to property or to worship or a right to burial or cremation is included as a right legally enforceable by suit. The contentions of the Petitioner in the Writ Petition filed under Article 32 in Supreme Court are that the Act violated the Fundamental Right of the community to practice religion, a right guaranteed under Article 25 and it also violated the right of the community to manage its own affairs in matters of religion. Of the five judges constituting the Bench, four held the Act unconstitutional as it violated Articles 25 and 26 of the Constitution. Chief Justice Sinha was the sole dissenting judge. Das Gupta and Ayyangar JJ. wrote separate and concurrent judgments declaring the Act unconstitutional.

In the minority judgment Chief Justice Sinha rejected the contention that it is for the community itself to determine what are essentially religious practices and what are not. A line of demarcation has to be drawn between practices consisting of rites and ceremonies. What are essentially and purely of a religious character have to be separated from those which are not essential. The actions of the head of the sect which are purely religious are not the concern of the courts, but his actions touching the civil rights of the members of the community are justiciable and not outside the scope of interference by the legislature or the judiciary.

If the excommunication is held to be invalid in accordance with the provisions of the Act, the members of the community will continue to enjoy civil rights. The Act in so far as it protects the civil rights of the members of the community falls within the ambit of Article 25 (2) (b).

56

Excommunication of a person of the community because of non conformity to religious practices results in disentitlement to use the communal mosque or the communal burial ground or other communal property. For all practical purposes he ceases to be a member of the community and becomes an out caste. Other members of the community are forbidden to have any contacts social or religious, with the person who has been excommunicated. Chief Justice Sinha said the Act is intended to do away with all that mischief of treating a human being as pariah and of depriving him of his human dignity and his right to follow the dictates of his own conscience. The right of the Petitioner to administer the property is covered by Article 26 (d) but he has to administer the property in accordance with law and the law in the present case commands that the Petitioner should not withhold the civil rights of a member of the community. On the evidence placed before the court the Chief Justice rejected the claim that the right to excommunicate is bound up with religion and protected by Article 26(b).

The two opinions of the majority, one by Das Gupta J. and the other by Ayyengar J struck a different path. Das Gupta J. proceeded with the examination of questions involved after formulating the following: (1) The protection of Articles 25 and 26 extends to acts done in pursuance of religion and therefore rituals and ceremonies and modes of worship which are integral parts of religion are guaranteed. (2) What constitutes a religion?

Quoting

from

Encyclopedia

of

Social

Sciences

that

excommunication is one of the principal means of maintaining discipline and that among the Muslims, the right of excommunication has been practiced from the earlier times, Das Gupta J. held that heresy or apostasy was a crime for which excommunication was in force among Dawoodi Vohras. Breach of some practice considered to be an essential part of religion by the Dawoodi Vohras justifies excommunication and this power forms part of the management of the community through its religious head. Admitting that excommunication affects many civil rights and entails loss of rights of enjoyment of property, Das Gupta J. concluded:

57

the rights given under Article 26 (b) have not however been made subject to preservation of civil rights. ----nor is it possible to say that excommunication is prejudicial to public order, morality and health.

On the question whether the impugned Act deals with social reform the opinion expressed by Das Gupta Judge is that excommunication on grounds other than religion might be a measure of social reform falling within the ambit of Article 25 (2) (b), but excommunication on religious grounds pure and simple cannot be considered to promote social welfare and reform.

Ayyangar J. examined the question from the point of view of excommunication as an instrument for maintenance of the integrity of the community. The right of a community to excommunicate a person who openly denounces the essentials of the creed, if not upheld, the community as a group would soon cease to exist. Adverting to the question whether the provisions of the impugned Act could be read down confining excommunication to matters unrelated to practice of religion, the learned judge without any close scrutiny held that such a thing cannot be done except by rewriting the section. On the interpretation of Article 25 (2) (b) he ruled that the words providing for social welfare and reform are intended to save the validity only of those laws which do not invade the basic and essential practices of religion which are guaranteed by the operative part of Article 25(1). Article 25 (2) (b) does not cover basic essential practices of religion. Had it not been otherwise there is no need to especially mention in Article 25 (2) (b) throwing open of Hindu Religious Institutions to all sections.

This decision is open to question.

The reasoning is faulty, the

premises are questionable and the conclusions are wrong. When Das Gupta J. admitted that excommunication entails loss of civil rights, it is un understandable how he could reason out that excommunication or grounds other than religious rights might fall under social reform in Article 25 (2) (b). The denominational rights guaranteed under Article 26 (b) the seven Judge Bench held in Shirur Mutt case are subject to the laws made under Article 25 (2) (b). A secular law like the impugned Act which is made applicable to persons belonging to all religions to eradicate the evil

58

practice of excommunication cannot be split up for the purpose of protecting the practice of a religious denomination. If excommunication is bad on one ground certainly it is bad on all grounds: in the determination of the validity of a provision like this necessarily the consequences must be taken into account. If the undoubted consequence of

excommunication is loss of civil rights it becomes a matter of social reform warranting State intervention. The fact that a community has been practicing a particular method of enforcing discipline cannot insulate it from legislative action if what is sought to be remedied is a measure of social reform. Article 25(1) covers individuals and the right guaranteed is subject to public order, morality and health and the other provisions of Part III.

Therefore the rights guaranteed under clause (1) of Article 25 are subject to laws made under clause (2). The right of the Dawoodi community asserted collectively is also the right of the individual members of the community. A social welfare measure under Article 25 (2) (b) prevails over the right of the denomination under Article 26 (b) was already concluded by the Shirur Mutt case. The decision gives almost limitless freedom to religious denominations and religious groups to assert what are essential religious practices and if the court does not examine the question whether or not the right claimed is an essential religious practice, Article 25(2) becomes a dead letter. Chief Justice

Gajendragadkar was therefore right in examining the question raised in Yagnapurushadji case to find out whether it was an essential religious practice. Failure on the part of the court to examine independently the claim put forth by a community as an essential religious practice would amount to an act of judicial self abnegation: sometimes judicial abnegation amounts to judicial abdication. If liberty is given to any religious group to assert what its essential religious practices are, the same may result in many abominable practices reflecting institutionalized social inequalities and structural hierarchies passing judicial muster. Many social disabilities associated with Hinduism to a great extent and to a lesser extent in Islam, Christianity and Sikhism may become legally accepted tenets. Article 25 (2) exactly seeks to undo such a mischief.

59

What religious practices are protected by Articles 25 and 26 of the Constitution of India? In Saiffudin Saheb case, the Supreme Court

accepted the assertion of Dawood Vohra Community that power to excommunicate is an essential part of the religious denomination without an independent determination. On the other hand in the case of Shastri Yagna Purushdisgn case, the Court examined whether what is claimed by the Community is really an essential part of the religion. In Shirur Mutt case, the Supreme Court held that with reference to doctrines of the religion, the question as to what constitutes essential part of religion has to be determined. Having said so, the Court has examined some of the practices and reached independent conclusions. Whether such a claim These two

could really be called an essential part of the religion?.

different approaches of the Court have resulted in considerable ambiguity as to what is the actual position.

In this context, reference needs to be made to an important subsequent decision of the Constitution Bench in the case of Seshammal & Ors. Vs. State of Tamil Nadu (1972) 2 SCC page 11. The State of Tamil Nadu made certain amendments to the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, in consequence of which in the matter of appointment of Archakas in temples (Priests) the hereditary principle was dispensed with. The Court examined certain

concepts and practices of Hinduism to decide the question whether succession to the post of Archaka is an essential and integral part of faith of the Saivite and Vashnavite worshippers. The Court scrutinized

minutely the contents of Agama Sastras with reference to various ceremonies and observances for the worship of the Idols, while at the same time observing that the controversy is approached by the Court on the basis of Saiffudin Saheb case. The Court concluded that the Archaka of a denominational temple must be one belonging to that denomination. In a Saivite temple, the Archaka also must be a Saivite and likewise in a Vaishnavite temple, a Vaisnavite alone must be the Archaka. essential religious practice covers only this aspect. The

The important

question whether the appointment of a Priest is a secular function or a religious practice was examined by the Court. Describing Archaka as a servant of the temple, the Court held that his appointment by the Trustees is essentially secular. An Archaka is subjected to disciplinary control of

60

the Trustee like other servants and owes his appointment to a secular authority. - That after his appointment the Archaka performs worship is no ground for holding that the appointment is either a religious practice or matter of religion (Para 21 at page 25). The usage of temples enjoining hereditary appointment could be interfered with by legislation even though it constitutes part of religious practice is the principle laid down in Seshammals case. The appointment of Archaka itself was held to be a secular function. The claim based on hereditary principle for appointing Archakas was declared to be not an essential religious practice. Objective considerations weighing in the judicial determination of what constitutes an essential religious practice is indeed an important aspect of judicial activism firmly grounded in realism.

The question what is an essential religious practice is subject matter in more than one decision rendered by the Supreme Court in the context of the claim of the Muslim Community that cow slaughter on Bakri-ID day is an essential religious practice. A Constitution Bench of

the Supreme Court in Md. Qureshi Vs. State of Bihar AIR 1958 SC 731 after an elaborate discussion and relying upon the authoritative texts of Writers on Islam rendered the opinion that slaughtering of cow on BakriID day is not an essential religious practice but an optional one. What was prescribed by Islam is sacrifice of a goat by one person or a cow or a camel by seven persons, and the only requirement is that they should be healthy animals.

Long after the Mohd. Qureshi case, the question in a different context arose before the Supreme Court in State of West Bengal Vs. Ashutosh Lahiri (AIR 1995 SC 464). The State of West Bengal enacted a law West Bengal Animal Slaughter Control Act, 1950 to control the slaughter of certain animals for the purpose of improvement of agriculture and increase supply of milk. The animals mentioned in the Schedule to the Act covered Bulls, Bullocks, Cows, Buffalos, Buffaloe Cows. No

animal mentioned in the Schedule to the Act could be slaughtered by any person unless a certificate to the effect that the animal was fit for slaughter was obtained from the specified authority. Only in respect of animals which are above the age of 14 and not fit for work or breeding or permanently incapacitated, the certificate could be given. The slaughter

61

has to be effected only at the prescribed places. Breach of the provisions of the Act was made a punishable offence. Section 12 of the Act

conferred on the State Government the power to grant exemption from the Act for permitting slaughter of any animal for any religious, medicinal or research purpose.

The State Government granted exemption permitting slaughter of healthy cows on the occasion of Bakri-ID on the ground that such exemption was required for the religious purpose of Muslim Community. The High Court struck down the exemption and the Supreme Court affirmed the High Courts decision. One of the arguments advanced

before the Supreme Court was that a religious purpose need not be a mandatory purpose but could cover optional purposes also. This

contention was put forth ingeniously as already the Constitution Bench in Md. Qureshis case ruled that on Bakri-ID day, it was not essential to slaughter a cow.

When the Constitution protects only essential religious practices, whether in exercise of the power of exemption the State Government could treat an optional practice as a religious practice entitling for

exemption? The Supreme Court discussed the legal principles governing grant of exemption and expressed the view that if the exemption is granted in respect of a purpose, which is not an essential one to that extent it would amount to granting exemption lightly or cursorily and that is not the scope and ambit of Section 12 of the Act. Quoting the well settled principle of law that a provision dealing with exemption should be construed strictly, the Court concluded: We must, therefore, hold that before the State can exercise the exemption power under Section 12 in connection with slaughter of any healthy animal covered by the Act, it must be shown that such exemption is necessary to be granted for subserving an essential religious, medicinal or research purpose. If granting of such exemption is not essential or necessary for effectuating such a purpose, no such exemption can be granted. so as to bypass the thrust of the main provision of the Act.(Page 468).

The question whether cow slaughter is an essential religious practice again came up for consideration before a Seven Judge Bench of

62

the Supreme Court in State of Gujarat Vs. Mirzapur Moti Kureshi Kassab Jamat & Ors. [(2005) 8 SCC 534]. The larger Bench affirmed the view taken in Ashutosh Lahiris case. The larger Bench has elaborately

discussed certain other aspects concerning the economic aspects of Cow Slaughter and the report of the National Commission for Cattle, which are not necessary for the present purpose. The echo of the American Supreme Courts interpretation on the religious rights of Jehovahs witnesses was felt in India. Three children of Jehovah witnesses abstained from singing the National Anthem in a School in the State of Kerala on the ground that the same was against the tenets of their religious faith. They were expelled from the School by the Headmistress under the instructions of the Deputy Inspector of Schools. The validity of the action of the authorities was challenged in the Kerala High Court which upheld the same. That decision was

reversed by the Supreme Court in Bijoe Emmauel & Ors. Vs. State of Kerala (1986) 3 SCC 615. A two Judge Bench of the Supreme Court

allowed the Appeal and quashed the expulsion order observing: We are satisfied, in the present case, that the expulsion of the three children from the school for the reason that because of their conscientiously held religious faith, they do not join the singing of the National Anthem in the morning assembly though they do stand up respectfully when the anthem is sung, is a violation of their fundamental rights to freedom of conscience and freely to profess, practice and propagate religion. (Para 25 at page 631).

The Bench speaking through Justice O.Chinnappa Reddy referred to American decisions, provisions of the Indian Constitution, The Kerala Education Act and two Circulars issued under the Act as well as the provisions of the Prevention of Insults to National Honour Act, 1971. The Court proceeded on the assumption that the Petitioners truly and conscientiously believed in their faith. The Statement in the Writ Petition filed in the High Court was relied upon by the Supreme Court, which is to the following effect:

The students who are witnesses do not sing the Anthem though they stand up on such occasions to show their respect to the National Anthem. They desist from actual singing only because of their honest belief and conviction that their religion

63

does not permit them to join any rituals except it be in their prayers to Jehovah their God (At page 620).

The aforesaid judgment is open to criticism on many grounds. The assertion of the students in the Writ Petition filed in the High Court is that they stand up when the National Anthem is sung but they desist from actual singing because of their honest belief and conviction that their religion does not permit them to join any rituals except in their prayers to God. This requires closer scrutiny. Singing the National Anthem is not a ritual. The Prevention of Insults to National Honour Act, 1971, by Section 3, lays down among other things that any one who intentionally prevents the singing of the Indian National Anthem is liable to be punished. The words intentionally prevents are wide enough to include intentional refusal to sing. The observation of the Supreme Court that not singing the National Anthem does not amount to preventing the singing and, therefore, the same is outside the ambit of Section 3, sounds highly unrealistic. When the law made by the Parliament makes intentional

prevention of the singing of the National Anthem a penal offence, intentionally not singing the National Anthem, must be deemed to be a part of intentional prevention. The National Anthem is the very

manifestation of Indianess transcending regions, religions and languages of the Country.

The American precedents are not safe-guides in deciding the constitutional questions concerning our Country. This was made clear by the seven Judge Bench of the Supreme Court in Shirur Mutt case by holding that the language of Articles 25 and 26 of the Constitution is sufficiently clear to enable us to determine without the aid of foreign authorities as to what matters come within the purview of religion and what do not (1954 SCR 1005 at page 1028).

Participating in the singing of the National Anthem is obviously a secular activity. Clause (2) of Article 25 enables the State to make a law in respect of secular activities associated with religious practices. The religion in question is Christianity as practiced by Jehovahs witnesses and as part of the religion that they would not sing the National Anthem. When singing of the National Anthem is not itself a religious activity even if one associated the same with a religious activity still that activity can be

64

regulated by law under Article 25(2) of the Constitution.

The right

guaranteed by Article 25(1) is subject to law made under Article 25(2) as ruled by the Constitution Bench in Shirur Mutt case. Article 26 does not come into picture since clauses (a), (b, (c) and (d) are not attracted.

If American precedents because of their legal reasoning have appealed to Indian Courts, the same cannot be accepted as correct legal principles under our Indian Law, unless those principles clearly fit the Indian situation. Merely because a decision of the American Supreme Court containing a particular reasoning was subsequently overruled by the very same Court, there is no warrant for the Indian Constitutional Courts to ignore the overruled decision and follow the later law. In the first Judges case (S.P.Gupta Vs. Union of India AIR 1982 SC 149) a Seven Judge Bench of the Supreme Court has followed this principle. In Gobits Case 310 US 586 (1940) Justice Frankfurter speaking for the majority had upheld the action of the Pennsylvania District School Board in expelling two children for their refusal to salute the National Flag as part of the School exercise. The opinion of Justice Frankfurter is highly convincing and appealing both to law and reason leaving no scope to fault it on any legitimate ground. Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities. Proceeding further, Justice Frankfurter said: We live by symbols. The flag is the symbol of our national unity, transcending all internal differences, however large, within the framework of the Constitution.

The Circulars of the Director of Public Instruction, Kerala, obligating students to participate in the singing of National Anthem are held to be of no legal significance because they are not issued under the authority of any Statute ignoring the basic fact that they are integral part of the educational policy aimed at inculcating among the students a sense of awareness about the Nation.

65

If the religious beliefs are to be held as sacrosanct forming part of Fundamental Right to religious freedom, the consequences would be calamitous. Freedom to practice, profess and propagate religion cannot encompass values which are at variance with symbols of National Honour the National Flag and the National Anthem. The Fundamental Duties incorporated in Part IV-A of the Constitution despite being non justiciable are not mere empty exhortations. If a law is made pursuant to one or any of the fundamental duties enumerated in Article 51-A, it binds everybody who comes within its purview so long as it is not declared unconstitutional. The judgment in Bijoe Emmanuel case has allowed

persons belonging to a microscopic minority to overreach the Constitution and the National Flag. overruled. activism. I look forward to the day when this ruling is

This decision, in my view, reflects retrogression in judicial

The Travancore Devaswom Board in 1961 had established a School for the purpose of imparting training to young students, irrespective of their caste/community but belonging to Hindu religion to occupy the posts of Poojari or Shanthikaran (Priest). Poojaris must be

trained and be familiar with relevant religious observations mandatorily to be performed in the temples in accordance with the prescriptions laid down in Agama Shastras. After successfully completing the training the students were initiated for performance of their duties and the initiation was by investiture of Sacred Thread and Gayathri Mantra. The question arose in N.Adithyan Vs. Travancore Devaswom Board & Ors (2002) 8 SCC 106, whether a non-Brahmin was entitled to be appointed as a priest and if so whether it would not be in violation of the religious practice customarily followed in the temples?. In the light of the binding

precedents, Justice Doraiswamy Raju who spoke for the Court reiterated the principle that the Court should decide with reference to the doctrines of a particular religion whether the claimed practices really form part of the religion. The performance of rituals and poojas and the sanctity of the idol must be in accordance with Agama Shastras. Justice Raju while recording a finding that the temple in question was not a denominational one, held:-

66

.If traditionally or conventionally, in any temple, all along a Brahmin alone was conducting poojas or performing the job of Santhikaran, it may not be because a person other than the Brahmin is prohibited from doing so because he is not a Brahmin, but those others were not in a position and, as a matter of fact, were prohibited from learning, reciting or mastering Vedic literature, rites or performance of rituals and wearing sacred thread by getting initiated into the order and thereby acquire the right to perform homa and ritualistic forms of worship in public or private temples. (at Page 123).

The selection of the Archaka was made by a Committee which consisting, among others, Scholars and the Thantri. The learned Judge concluded:

..While that be the position, to insist that the person concerned should be a member of a particular caste born of particular parents of his caste can neither be said to be an insistence upon an essential religious practice, rite, rituals, observance or mode of worship nor has any proper or sufficient basis for asserting such a claim being made out either on facts or in law, in the case before us also.(at page 124).

Whether a Hindu religious denomination should consist of people belonging to a particular caste or may consist of people of all Castes was thoroughly examined by the Supreme Court in Nallor Marthandam Vellalar Vs. The Commissioner, Hindu Religious and Charitable Endowments (2003) 10 SCC 712. Justice Shivaraj Patel speaking for the Court while declaring that considerations of caste or community or social status have no relevance, Stated the legal position thus:The expression religious denomination must satisfy three requirementsit must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well being, i.e., (1) a common faith, (2) a common organization and (3) designation of a distinctive name. It necessarily follows that the common faith of the community should be based on religion, and in that they should have common religious tenets; and the basic cord which connects them should be religion and not merely considerations of caste or community or social status.

A question of considerable importance in the context of the belief in the God by persons professing to be Communist came up for decision

67

before the Supreme Court in M.P.Gopalakrishnan Nair & Anr. Vs. State of Kerala & Ors. (2005) 11 SCC 45. The famous Krishna Temple at

Guruvayur in Kerala is administered under the provisions of Guruvayur Devaswom Act, 1978. Whether the members of the Managing

Committee nominated by the State Government could independently function since there was Communist Ministry and the members of the Council of Ministers were not believers in Hinduism. Those who do not perform Hindu rites or believe in the temple worship are disqualified to be members of the Managing Committee. The Court analyzed the powers of the Committee and held that the Committee has no power to interfere with the religious or spiritual matters pertaining to Devaswom. The

Government is empowered to nominate six persons of whom one should be a representative of the employees of the Devaswom and one member belonging to a Scheduled Caste and the rest should be persons having interest in the Temple. Upholding the right of the Government to

nominate the members to the Managing Committee and rejecting the argument that persons belonging to the Communist Party are not entitled to nominate members, Justice S.B. Sinha speaking for the Court held: ..It is not proper or correct to brand all Ministers of Leftist Government as persons not believing in temple worship. There is no presumption that a Communist or Socialist (who may normally form part of a Leftist Council of Ministers) are ipso facto non-believers in God or in temple worship. Such a sweeping allegation or premise on which the prayer is based need not be correct. (at page 62).

By the aforesaid declaration of law, the Supreme Court disagreed with the decision of a Five Judge Bench of the Kerala High Court in Krishnan Vs. Guruvayur Devaswom Managing Committee AIR 1978 Kerala 68 in which it was held that many Hindus who have not openly renounced the Hindu faith but may ardently believe in such political or social ideologies which do not view temple worship with favour. Justice

Sinha also went into the question as to who is a Hindu and answered: .A Hindu admittedly may or may not be a person professing Hindu religion or a believer in temple worship. A Hindu has a right to choose his own method of worship. He may or may not visit a temple. He may have a political compulsion not to openly proclaim that he believes in temple worship but if the submission of the appellants is accepted in a given situation,

68

the 1978 Act itself would be rendered unworkable. Idol worship, rituals and ceremonials may not be practiced by a person although he may profess Hindu religion (Para 22 at Page 58).

A person born in Hinduism will continue to be a Hindu as long as he has not renounced the faith by any legally recognizable method, even if he is an atheist.

While judging as to what constitutes an essential religious practice for the purpose of upholding the guaranteed fundamental right of religious freedom, the test laid down by the Supreme Court in Commissioner of Police Vs. Acharya Jagadishwaranand Avadhuta & Anr (2004) 12 SCC 770 is sound.

..Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices that the superstructure of a religion is built, without which a religion will be no religion. Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice. If the taking away of that part of practice could result in a fundamental change in the character of that, religion or in its belief, then such part could be treated as an essential or integral part.

Whether Tandava dance is an essential part of Ananda Margi faith was the question considered in that case. Having regard to the earlier decision of the Court on the same question that it is not an essential part of Ananda Margi faith, the majority opinion did not consider that aspect once again.

Secularism:

Secularism is one of the foundations of the Indian Constitution as can be discerned from its provisions. Not having opted for a State religion and incorporating provisions guaranteeing freedom of conscience and freedom of religion, the Founding Fathers had taken great care to lay

69

down strong foundations for building a magnificent Constitutional edifice. Secularism in the sense of justiciability has not been used in the Constitution, but the word secularism occurs in Article 25 (2) (a). Broadly one can say that what is not religious is secular: secularism is neither sectarianism nor sacerdotalism. By the Forty Second Amendment several provisions of the Constitution were amended and for the first time in the preamble the word secular was inserted declaring India as sovereign, socialist, secular, democratic, republic. It was felt in 1976 that there was a necessity to amend the Constitution for purposes, among others, to spell out expressly the high ideals of socialism, secularism and the integrity of the nation...

What is secularism? There is no universally accepted definition. The dictionary meaning of the word secular conveys the idea that it is not spiritual or sacred but concerned with the affairs of this world.

In Encyclopedia Britannica the first sentence concerning secularism reads any movement in society directed away from other worldliness to life on Earth. The word secularism surfaced for the first time in 1648, according to Professor T.N.Madan:

the word secularism was first used in 1648, at the end of the thirty years war in Europe, to refer to the transfer of Church properties to the exclusive control of the princeslxii. S.R.Bommais case (AIR 1994 SC 1918) decided by a Nine Judge Bench of the Supreme Court is the first case in which the concept of secularism has been examined minutely. The case itself is concerned with the scope and interpretation of Article 356 of the Constitution of India. In the course of the discussion secularism occupied an important part of the judgment.

I shall briefly refer to the different opinions of the Judges. Ahmedi, J., quoted the views of Gandhiji, Radhakrishnan and Pandit Jawaharlal Nehru to explain the notion of secularism prior to the Constitution. Under the Constitution Articles 15, 16, 25 to 30 read with Fundamental Duties incorporated in Part IV-A clearly bring out the dual concept of secularism

70

and democracy, the principles of accommodation and tolerance as defended by Gandhiji and other National leaders. Ahmedi, J. agreed with the views expressed by Sawant, Ramasamy and Jeevan Reddy, JJ. that secularism is the basic feature of the Constitution. Sawant, J. spoke for himself and Kuldip Singh, J. The Constitution does not prohibit the

practice of any religion either privately or publicly. According to Sawant, J. Articles 25, 26, 29, 30,44 and 51A (these provisions} by implication prohibit the establishment of theocratic State and prevent the State either identifying itself with or favouring any particular religion or religious sect or denomination. The State is enjoined to accord equal treatment to all religions and religious sects and denominations. He accepted the view of M.C.Setalwad that secularism often denotes the way of life and conduct guided by materialistic consideration devoid of religion. The

basis of the ideology is that material means alone can advance mankind and that religious beliefs retard the growth of the human beings This ideology is of recent growth and it is obvious that it is quite different from the concept of secular State in the West which took root many centuries ago. Extracts from the Patel Memorial Lectures delivered in 1965 by M.C.Setalwad are quoted by Justice Sawant indicating that in view of the large number of minorities especially Muslims living in India, a secular constitution enabling all citizens to enjoy equal freedom which would weld together into one has become inevitable. Justice Sawant also quoted the views of Justice O.Chinnappa Reddy (Dr. Ambedkar Memorial Lecture) and concluded that:

..Whatever the attitude of the State towards the religion, religious sects and denominations, religion cannot be mixed with any secular activity of the State. In fact, the encroachment of the religion into secular activities is highly prohibited.

The fundamental right to practice and profess any religion does not permit introducing religion into non religious and secular activities of the State. As an example the learned Judge mentioned Section 123 of the Representation of People Act which prohibits appeal to the electorate on grounds of religion, castes, race, language or religious symbols.

71

What constitutes essential part of secularism according to Sawant, J.: .religious tolerance and equal treatment of all religions groups and protection of their life and property and of the places of their worship are an essential part of secularism enshrined in our Constitution

Ramaswamy, J. quoted the definition of secularism mentioned in Encyclopedia Britanica and Encyclopedia of Social Sciences and the views of J.S.Mill and Bentham. In his judgment, we find largely

quotations from celebrated writers and political philosophers including Dr.Ambedkar and Gandhiji. Ramasamy, J. agreed with Dr.Radhakrishnan that Indian concept of secularism means the equal status to all religions.No one religion should be given preferential status or unequal distinction and that no one religion should be accorded special privileges in national life. After quoting Swami Vivekananda, he said that secularism in the Indian context bears positive and alternative emphasis. Positive secularism separates the religious faith from the

temporal aspects of human life. Ramasamy,J. concluded that:-

Secularism therefore is not anti thesis of religious devoutness

Introducing religion into politics is not only a negation of the mandate of the Constitution but also a positive violation of the constitutional obligation especially enjoined by the Representation of the People Act.

Justice Jeevan Reddy who spoke for himself and Justice S.C.Agrawal while observing that the expressions socialist and secularism are not capable of precise definition, examined the meaning of secular in the context of Indian Constitution. All citizens are entitled to profess, practice and propagate any religion of their choice and all should be treated equally. This duty to treat all equally obligates the The

State not to prefer or promote particular religion or caste.

constitutional provisions of Social Justice, liberty of faith, equality of status and of opportunity can be achieved only if the State eschews

72

religious faith or belief from its consideration altogether. While according equal treatment to all citizens, the State can intervene in matters of religion; it can make laws regulating secularism, affairs of temples, mosques and other places of worship and Parliament has power to reform and rationalize the personal laws. Jeevan Reddy, J. referred to the views of K.M.Munshi in the Constituent Assembly, the views of M.C.Setalwad, highlighting that the State shall observe neutrality in regard to all religions; as also that of Chief Justice Gajendra Gadkar that the State should give equal freedom for all religions and that the religion of the citizen has nothing to do in the matter of socio economic problem. Prof. Upendra Bakshis views extensively are extracted with reference to Articles 25(2)(a), 25(2)(b) and Article 17 of the Constitution of India. In the affairs of the State (in the widest connotation), religion is irrelevant; it is strictly a personal affair. In this sense and in this behalf our Constitution is broadly in agreement with the US Constitution, the First Amendment whereof declares that a Congress shall make no laws respecting an establishment of religion or prohibiting the free exercise thereof(generally referred to in the establishment clause). Perhaps there is an echo of the doctrine of separation of Church and State; may be it is the modern political thought which seeks to separate religion from the State it matters very little. (emphasis added).

Secularism has attained permanence in our Constitution since it is a basic feature of the Constitution as held in Keshavananda Bharathis case. The requirement that the State should be secular applies to

political parties as well. Mixing of religion and State power is prohibited by the Constitution. Justice Jeevan Reddy concluded: Introducing religion into politics is to introduce an impermissible element into body politics and an imbalance in our constitutional system.Under our Constitution, no party or organization can simultaneously be a political and a religious party.

Freedom from payment of taxes for promotion of any religion:

73

Article 27 (corresponding to draft Article 21) mandates that no one shall be compelled to pay any tax the proceeds of which are specifically appropriated for promotion and maintenance of any particular religion or religious denomination. The language of draft Article 21 and the final Article 27 is identical. When this Article was discussed in the Constituent Assembly one of the Members Mr.Abdur Rouf suggested amendment for insertion of the words wholly or partly: No person may be compelled to pay any taxes, the proceeds of which wholly or party are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. If my amendment is not accepted, a person may be compelled to pay taxes, the proceeds of which will partly be appropriated for religious purposes. This is certainly not desirable, and I think that unless my amendment is accepted, the very intention of this article will be frustrated.

Another member Mr. Nazruddin Ahmed suggested substitution of the words on any income which is in the place of the word proceeds of which are. Both these amendments were not accepted. Shri

M.Ananthasayanam Ayyangar participating in the debate (later he became the Speaker of Lok Sabha) Stated that Mr.Abdur Roufs suggestion for insertion of the words wholly or partly is unnecessary since the whole includes part. He also opposed the amendment suggested by Nazruddin Ahmed: accepting the amendment would result in income of all temples and religious endowments being exempted from the tax net. He said: In a secular State where the State is expected to view all denominations in the same light, and not give encouragement to any one particular denomination at the expense of others, this provision (draft Article 21) is absolutely necessary. This is part and parcel of the Charter of liberty and religious freedom to see that no particular denomination is given any advantage over another denomination. This article is very important and it safeguards the interests of all minorities and religious pursuits (Page 866 Vol.VII Constituent Assembly Debates).

Although seemingly Article 27 prohibits collection of any tax by the State for promotion or maintenance of any particular religion or denomination, the crucial words specifically appropriated have resulted in State funds being diverted towards activities connected with all

74

religions. The Shirur Mutt case, drew distinction between taxes collected and utilized for religious purpose and collected from religious institutions for the services rendered by the State.

The Supreme Court in the latest case of Prafull Goradia Vs. Union of India Writ Petition (Civil) No.1 of 2007 dated 28-1-2011 considered the scope of Article 27 in the context of challenge to the constitutionality of Haj Committee Act of 2002. The grievance of the Petitioner in the Writ Petition was that he was compelled to pay direct and indirect taxes part of which goes towards subsidy for Haj Pilgrimage to Muslims. The Government of Indias stand was that the expenditure was incurred by the Central Government for purposes like Kumbh Mela (Hindu festival) Pilgrimage to Mansarovar, which was special for Hindus and also for providing facilities to pilgrims visiting Hindu Temples and Sikh Gurudwaras in Pakistan. The Government of India also released grants supporting pilgrimage conducted by any Community. Considering the

contentions advanced, the Court speaking through Katju, J. while dismissing the Writ Petition observed: In our opinion, we must not be too rigid in these matters, and must give some free play to the joints of the State machinery. A balanced view has to be taken here, and we cannot say that even if one paisa of Government money is spent for a particular religion there will be violation of Article 27. There is also no violation of Articles 14 and 15 because facilities are also given, and expenditures incurred, by the Central and State Governments in India for other religions. Thus there is no discrimination.

Article 27 is attracted according to the Supreme Court both in respect of direct and indirect taxes provided a substantial part of such proceeds are in fact utilized for a particular religion.

In a different context, the question of taxes relating to Churches and places of religious worship came up for consideration before the American Supreme Court in the case of Walz v. Tax Commission of the City of New York 397 U.S.664 (1970). A suit was brought in a New York Court challenging the property tax exemption for Church owned buildings used exclusively for worship. The argument advanced was that such an

75

exemption was in breach of the Establishment Clause of the First Amendment viz. State supporting the religion. By getting the tax

exemption indirectly Churches were gaining advantage of Government services like fire protection, police protection, etc., without actually paying because those services were funded by others who pay taxes. The

exemption also enabled the Churches to spend more money for religious purposes thereby the Government was giving indirect support to the religion. By a majority of 8-1, the US Supreme Court upheld the

exemption justifying the same because since in the earliest colonial days the Churches were enjoying such exemption. Exemption was granted not only to Churches and all places of religious worship but also to other nonprofit Organizations like Hospitals, Libraries, etc. and therefore, Churches were not singled out for any favourable treatment. The grant of

exemption does not warrant transfer of rights to the Churches which would not amount to supporting any religion. Chief Justice Burger who wrote the concurrent opinion of the Court expressed the view that non profit Organizations contributed to the well being of the Community in several non religious ways by helping the public at large, otherwise to the extent of the service rendered by these organizations, the burden would have fallen on the Government. Religious organizations contributed to the pluralism of American Society.

The only dissenting voice was that of Justice Douglas. According to him tax exemption amounts to an indirect subsidy forbidden by the First Amendment.

Religious Organizations are viewed by the US Supreme Court as Charitable Institutions warranting no judicial interference when they receive benefits in the form of tax exemption.

On the question of imposing tax on the sale proceeds of religious literature, the US Supreme Court has expressed apparently inconsistent views. In Jones v. City of Opelika, 319 U.S. 105 (1943) by majority of 54, the Court held that the taxes are of non discriminatory in nature and therefore no violation of Freedom of Religion was involved. was brought by Jehovahs witnesses. This case

76

A diametrically opposite view was expressed in 1943 in Murdock v. Commonwealth of Pennsylvania 319 U.S. 105 (1943). This is also a case relating to Jehovahs witnesses who distributed literature by going from door to door and while distributing the literature they requested contribution of 5 cents each for the books and 2 cents each for pamphlets. Since the said activity was done by Jehovahs witnesses without obtaining license from the concerned Government Department, they were subjected to criminal proceedings. The US Supreme Court upheld the plea of Jehovahs witnesses that the Free Exercise clause of the First Amendment was breached by subjecting them to prosecution for distributing literature and collecting contribution without obtaining the license. The objection of the State that since Jehovahs witnesses resorted to solicitation of funds by distributing religious literature, they were required to obtain license as condition to pursue their activities was rejected. The Majority opinion of the Court accepted the arguments of Jehovahs witnesses. Justice Douglas who delivered the opinion of the Court held that it was difficult to draw the line between a purely commercial activity and a religious venture. On evidence, he said that it is a distortion of the facts of record to describe their activities as the occupation of selling books and pamphlets. Non-discriminatory nature of the tax in question was held to be immaterial. He further observed: but if the formula of this type of ordinance is approved, a new device for the suppression of religious minorities will have been found.

How on similar facts judicial attitudes differ is evident from the following two decisions of the U.S. Supreme Court:

Mccollum v. Board of Education, 333 U.S. 203 (1948):

The question was whether the State funded Public Schools could be utilized for religious instruction. In the State of Illinois, the law required parents to send their children aged 7 to 16 to public schools started with State funds. Various groups belonging to Protestant faith and also

members of Jewish and Roman Catholic faiths formed a voluntary association to conduct classes in religious instruction to public school children. The Association selected all the religious teachers and no extra expenditure was incurred by the public schools. Classes were conducted

77

in the regular class rooms in the school building and the students who did not choose to attend were required to leave their class rooms and go to some other place in the school building to pursue secular studies. Justice Black who delivered the opinion of the Court held that the action was violative of the First Amendment. The State funded public school

buildings were used for dissemination of religious doctrines.

A seemingly different view was taken in Zorach v. Clauson 343 U.S.306 (1952). A program of the New York City permitting the public schools to release students during the school day to enable them to go to religious classes for religious instruction was challenged as violative of the First Amendment. The action of the New York City was upheld by Justice Douglas who spoke for the Court. The School Authorities

remained neutral and accepted release of students on the request of the parents and nothing more was done.

The release time program involved neither religious instruction nor expenditure of public funds. Mccollum v. The Board of Education was distinguished on the ground that in Mccollum case class rooms were turned over for religious instruction.

Extreme attachment to religion was expressed by Justice Douglas in the opinion written by him for the majority. He said that if the argument of the Petitioner is accepted: A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: God save the United States and this Honourable Court. Some of his We are

observations are at variance with the First Amendment mandate of erecting wall of separation between Church and the State.

religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses..When the State encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions.

The Everson doctrine of absolute separation of Church from the State appears to be no longer the guiding judicial attitudes.

78

Justice Frankfurter, who wrote the dissenting opinion held that the program in question accomplished indirectly what was forbidden by the First Amendment. The schooling is more or less suspended during the release time so that the non-religious attendants will not forge ahead of the churchgoing absentees. The ground on which the case was decided by the majority, Justice Frankfurter described as trivial, almost to the point of cynicism, magnifying its nonessential details and disparaging compulsion which was the underlying reason for invalidity.

Secularism is one aspect of equality. It, therefore, follows that no religion should be treated as inferior or superior to any other. Applying this principle, the majority opinion in Dr.Ismail Farooqui & Ors. Vs. Union of India (1994) 6 SCC 360 held that:

. There can be no reason to hold that a Mosque has a unique or special status higher than that of the places of worship of other religions in secular India to make it immune from acquisition by exercise of sovereign or prerogative power of the State. The Mosque is not an essential part of practice of the religion of Islam and Namaz (prayer) by Muslims can be offered any where even in open.

M.S.Aruna Ray & Ors. Vs. Union of India (2002) 7 SCC 368, is a public interest litigation brought before the Supreme Court under Article 32 of the Constitution of India.

The question that was considered and decided was whether the National Curriculum Framework for School Education (NCFSC) published by the National Council of Educational Research and Training (NCERT) is against the constitutional mandate of secularism, a basic feature of the Constitution. Two separate but concurrent judgments were delivered by Justice Shah and Justice Dharmadhikari. The third Judge Seema also agreed with the other two on the question relating to secularism but partly differed on the other question relating to approval of the Central Advisory Board of Education(CABE). Both Shah & Dharmadhikari, JJ. extensively referred to the views of celebrated authors, political philosophers and Judges who decided the S.R.Bommais case. Justice Shah equated rule of law with dharma citing the authority of Mahabharatha and the

79

philosophy of Emperor Ashoka. Justice Shah agreed with the view of Justice Khanna expressed in one of his lectures that secularism is neither anti God or pro God. Article 28 lays emphasis against imparting religious instruction or performing religious worship. It does not prohibit study of religious philosophy and culture particularly for having value based social life in a society which is degenerating for power, post or property. (Para 40 at page 395).

Justice Dharmadhikari in his concurrent opinion said that education on religion can be imparted in educational institutions fully maintained out of State funds. He drew a distinction between religious instruction that is teaching of rituals, customs, etc., and teaching of philosophies of religions with emphasis on study of essential moral and spiritual thoughts and education on religion. The dividing line between imparting religious instruction and study of religion is very thin. He cautioned that special care has to be taken to stop the possibility of imparting religious instruction in the name of religious education or study of religions. Justice Dharmadhikari also referred to the views of the renowned Philosopher J.Krishnamurthy on religious education. The philosophical concept of what is temporary and what is real and understanding of ones own self was mentioned by Dharmadhikari, J. as part of religious education. In his own words:True religious education is to help the child to be intelligently aware to discern for himself the temporary and the real, and to have a disinterested approach to life, and would have more meaning to begin each day at home or at school with a serious thought, or with a reading that has depth and significance, rather than mumble some oft-repeated words or phrasesTo educate the student rightly is to help him to understand the total process of himself, for it is only then there is integration of the mind and heart in everyday action that there can be intelligence and inward transformation. (Para 61 at page 401).

Ultimately,

he

agreed

with

the

view

of

the

philosopher

Krishnamurthy that search for truth is religion, and truth is of no country, of no creed, it is not to be found in any temple, church or mosque. (Para 62 at page 401).

80

What is permitted by Article 28(1) is education based on religious pluralism. The views expressed by the Judges in Aruna Rays case sound highly philosophical and appear to be impracticable. Rule of law cannot be equated with dharma, a concept which does not admit of precise definition. Dharma is understood differently by Orthodox Hindus and the others. Ancient traditions which are associated with Hindu religion also are labelled as part of dharma which cannot be accepted. Except at a

highly intellectual level it is difficult to distinguish religious instruction from religious education. Religious instruction which is forbidden by Article 28(1) necessarily forms part of religious education concerning one or many religions. The essence of each religion if taught to the children in State funded Schools, may lead to chaos in educational system the children not able to understand and assimilate what is contained in all religions. The natural tendency of viewing ones own religion while

comparing the same with others will surface resulting in an atmosphere of disharmony. Dogmas are present in every religion and if religious

education encompassing dogmas has to be imparted, it is doubtful whether the effort would succeed at all.

CONCLUSION: When the Constituent Assembly debated the question of freedom of religion, several members strongly pleaded to keep religion strictly apart from the State, the inspiration being the political philosophy of the Congress party which had spearheaded the Countrys freedom struggle. Jawaharlal Nehrus clear indication that religion should be disengaged totally from the temporal activities of State was in tune with the First Amendment of the U.S. Constitution. The heterogeneous character of

the Indian society did not permit the application of the doctrine of secularism in the strict sense in which it was conceived of. The debates

in the Constituent Assembly concerning freedom of religion indicate the apprehension of some members about the protection of different religions in the Country, especially minority religions. The fear that the majority

religion Hinduism would impose its principles, tenets and practices upon the rest of the other religions loomed large in the minds of the members belonging to minority religions.

81

Narrow religious interests must be subordinated to the larger societal interests is what we discern from a study of the important decisions rendered by the Indian Supreme Court on freedom of religion. In the initial stages, the Court accepted practices claimed by any religion as guaranteed religious practices under Part III applying the test whether they are so sanctioned by the doctrines of that religion itself. Saiffuddin Sahebs case is a clear example of this. The Seven Judge Bench in Shirur Mutt case despite stating the aforesaid principle of determining the legality of a claimed religious belief with reference to the doctrines of that religion itself, nonetheless examined certain aspects of the practices and customs with reference to which the fundamental right was claimed. Every religion asserted its fundamental right to enable its members to profess, practice and propagate the beliefs of the religion. The State intervention was confined to matters specified in sub-clauses (a) and (b) of clause (2) of Article 25 and the independence claimed by the religious denominations was tested by separating matters of religion from non religious matters.

The neutrality of the State did not remain static.

The State

intervention enabled the several religious groups to extricate themselves from the outdated and oppressive social traditions and practices. Whether in respect of a claimed religious practice, the protection of Article 25(1) and 26 applies is no longer in the realm of abstract principles. The determination has to be with reference to the objective material. The test laid down in Ananda Margis case (2004) 12 SCC 770 whether a practice is essential to a religion has to be determined by examining whether without that practice the religion will remain the same or will be fundamentally changed formulated from a functional point of view is

undoubtedly a laudable one not only from legal but also sociological point of view. State aid to different religions in connection with religious

observations and ceremonies although viewed from the narrow point of State neutrality may not be legally supportable, but it is a welcome measure since it fosters a feeling of brotherhood among people of all religions and helps to a great extent in removing feelings of mistrust and suspicion among members of different religions. upholding State intervention The judicial decisions

in connection with various religious

82

functions and ceremonies, emphasise the positive aspects of secularism. From being detached from religion, the concept of secularism is now very much attached to all religions resulting in what may be called secular religion of the State because of secularisation of all the religions by State intervention.

The kind of State intervention India is witnessing in matters of religion helps one to understand the difference between communalism and nationalism. Communalism is nothing but the affirmation of the In the

people belonging to a caste or religion as a political group.

arduous task of nation building all the religions play a vital role. Secularism as found in India bridges the gap to a great extent between religion and the State while at the same time protecting the identity of different religions.

In S.R.Bommais case the observations of Justice Jeevan Reddy with which other Judges did not disagree that secularism under our Constitution is broadly in agreement with United States Constitution does not appear to be correct. The position under the United States

Constitution which I have tried to analyse with reference to decided cases shows a marked difference. In the United States the State keeps itself

aloof and the Supreme Court has interpreted the First Amendment guarantees very strictly by going to the extent of not allowing privately funded teachers to impart religious instruction to willing students in State aided public schools even though no additional expenditure was incurred by the Schools. Even a non discriminatory tax like tax on sales of

literature concerning religion was struck down as violative of the First Amendment. The only Indian decision which is some what closer to the United States Constitutional position is Saiffuddin Saheb case in which the right of excommunication was upheld as a guaranteed fundamental right under Articles 25 and 26 but its precedential authority is greatly shaken because of later rulings. The further observations of Justice Jeevan Reddy in S.R.Bommais case that under our Constitution no party organisation can simultaneously be a political and religious party correctly reflects the essence of secularism but in actual practice we see many distortions. There are certain political parties the names of which clearly indicate the religion to which they belong and the causes espoused by

83

those parties are both religious and political. I think the time is now ripe for State intervention to prohibit any political party to bear the name suggestive of a religion.

The ideal towards which the Indian State should strive is aptly summed up by Amartya Sen: 63 The requirement is not that the State must steer clear of any association with any religious matter whatsoever. Rather, what is needed is to ensure that in so far as the State has to deal with different religions and members of different religious communities, there must be a basic symmetry of treatment.

Despite what has been Stated above one

inescapable glaring

feature of all democratic countries professing faith in secularism is that some of the traditions of the majority became national traditions. In the United Kingdom known for its practice of secularism the Head of State must always be a protestant. In the United States the President takes oath holding the Bible in one hand and the Supreme Court holds the session daily with the supplication: God save the United States and this Honble Court. In India traditions like lighting the lamp while inaugurating conferences or meetings, greeting each other in the traditional Hindu way are some of the examples.

Topics like Uniform Civil Code, Election disputes touching upon religion, several aspects of personal law and the interplay between religion and personal law, I have omitted consciously from the purview of this lecture since that would make this lecture unwieldy.

In the preparation of this lecture I owe a debt of thanks to my wife Dr.Smt. M.Shalini who has not only put up with the inconvenience of my spending long hours at the table but actually encouraged me to complete this project. Mrs. Manjeet Kirpal Pathak, Advocate Supreme Court and

Mr. S.Mohanan Pillai, my Personal Secretary have greatly helped by going through the manuscript and correcting the errors; and Ms. Kamlesh Jain, Advocate Supreme Court and a social activist had meaningful discussions with me on the scope of this topic. thanks to all of them. I express my deep

84

i ii

Revised and Updated,2003, Illustrated Oxford Dictionary, Page 174. Revised and Updated,2003, Illustrated Oxford Dictionary, Page 183. The Encyclopedia Americana International, Volume 23, Page 359.

iii

iv v

. Julian Huxley: Man in the Modern World 1959 Edition, Page 130. Shri Aurobindo : The human cycle, The ideal of human unity war and self determination, Page 130140. vi See: Huxley. O.p cited Page 132 vii Sir Henry Maine ,O.p cited Pg. 15 viii Sir Henry Maine ,O.p cited Pg. 16
ix x

V.R.Krishnaiyer: Law and Religion at page 15 , Edition 1984. The Hindu view of Life by Dr. Radhakrishnan, Page 12. xi 1966 (3) SCR 242 at 260 xii 1966 (3) SCR 242 at 261 xiii Religion and Society, Kamala Lectures 1947, Pp 1-3. xiv The Encyclopedia Americana International, Volume 15, Page 491.
xv

The Encyclopedia Americana International, Volume 6, Page 648. The Encyclopedia Americana International, Volume 24, Page 808. The Encyclopedia Americana International, Volume 4, Page 687. The Encyclopedia Americana International, Volume 15, Page 667.

xvi xvii

xviii

xix xx

Religion in Politics Constitutional and Moral perspectives by Michael J.Perry, Edition 1997 at pg. 19 Cases in Constitutional Law Robert F.Cushman Pg.100) xxi 98 U.S.145 (1878) xxii 310 U.S.586 xxiii 319 U.S 624(1943) xxiv 293 U.S.245 (1934) xxv 197 U.S 11 xxvi Hamilton Vs Regents of University of California,293 U.S 245 (1934) xxvii 380 U.S 163 xxviii 283 U.S 633 (1931) xxix 398 U.S 333 (1970) xxx 283 U.S 605 xxxi 401 U.S 437 xxxii 374 U.S 203 xxxiii 406 U.S 205 (1972) xxxiv 374 U.S 398 xxxv 450 U.S 707 xxxvi 508 U.S 520 xxxvii Article 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public. (3) Nothing in this article shall prevent the State from making any special provision for women and children.. 1 [(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.] 2 [(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.]
xxxviii

Article 16. Equality of opportunity in matters of public "employment. (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of' employment or appointment to an office Sunder the Government of, or any local or other

85

authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment. (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. 2 [(4A) Nothing in this article shall prevent the State from making any provision for reservation 3[in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.] 4 [(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent, reservation on total number of vacancies of that year.] (5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
xxxix

Article 25. Freedom of conscience and free profession, practice and propagation of religion. (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I.The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II.In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
xl

Article 26. Freedom to manage religious affairs. Subject to public order, morality and health, every religious denomination or any section thereof shall have the right (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law.
xli

Article 27. Freedom as to payment of taxes for promotion of any particular religion. No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.
xlii

Article 28. Freedom as to attendance at religious instruction or religious worship in certain educational institutions.(1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds. (2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution. (3) No person attending any educational institution recognized by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.

xliii

Article 29. Protection of interests of minorities. (1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. (2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
xliv

Article 30. Right of minorities to establish and administer educational institutions. (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

86

[(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.] (2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.
xlv

See Page 14 of Justice Ranganatha Mishra Commission Report. Constituent Assembly Debates, Volume V, Page 4. xlvii Constituent Assembly Debates , Volume VII, Page 859. xlviii A.I.R 1952 Bom. 84 xlix 1954 SCR Pg. 1005 l 1957 SCR 895 li 1966 (3) SCR 242 lii 1954 SCR at 1024 liii 67 CLR 116 AT 127 liv 67 CLR 116 lv 310 U.S. 586 lvi 619 U.S 624 lvii 319 U.S 105 lviii (1890) ILR 13 Madras 293 lix 1966(3) SCR 242 lx AIR 1962 SC 853/ 1962 Suppl. SCR 496 lxi Themes in Politics: Secularism and its Critics . Edited by Rajeev Bhargava. Marc Galanter : Hinduism, Secularism and the Indian Judiciary page 268 at 281-282. lxii Themes in Politics: Secularism in its Critics . Edited by Rajeev Bhargava. T.N.Madan : Hinduism, Secularism and the Indian Judiciary at Page 297 63 Themes in Politics: Secularism and its Critics . Edited by Rajeev Bhargava. Amartya Sen : Secularism and its Discontents at Page 454.
xlvi