Religious Practices: The Test of Essentiality Crawling In

INTRODUCTION:

Religious Practices: The Test of Essentiality Crawling In

Glancing through the history of India, one can find heavy inclusion of Religious beliefs and practices in the mainstream a like law making etc. Ancient law solely based itself on the religious literatures that were widely acceptable and decently coherent for those times. With the passage of time, the way religion and law were approached with respect to each other changed following a change in administrative styles and mindset.

Law evolved to be able to list numerous sources where it unfolds itself from. Breaking the barriers of Xenophobia, human interaction expanded beyond the national and cultural boundaries, serving the lawmakers with more sources to derive ideas from. The increased interaction led to the initiation of India becoming a pluricultural nation with diverse religions. The scenario of religions being the sole base of law changed to laws governing religions and their practices.

Downing through the timeline to the current time, India has completely transformed into a multi religious republic. The rule of Law is supremely followed over any religion or belief. The constitution of India defines it as a secular nation by the 42nd Constitutional Amendment Act 1976. The right to religion was granted a status of a fundamental right under the following articles:

  1. Article 25: Freedom of Conscience and free profession, practice, and propagation of religion.
  2. Article 26: Freedom to manage Religious affairs
  3. Article 27: Freedom as to payment of taxes for promotion of Religion
  4. Article 28: Freedom to impart Religious teachings in Educational Institutions

Knowing that the right to practice religion is a fundamental right in India, one can easily agree to the fact that religions are heavily embedded it the legal and administrative domains of India.

The Indian judicial system has seen many cases which involve a religious aspect and question a religious practice against fundamental rights or rationality.

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DOCTRINE OF ESSENTIALITY:

The DOCTRINE OF ESSENTIALITY  is a concept fabricated and envisaged by a seven judge bench while hearing the Shirur Mutt Case [The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [1954] INSC] in 1954.

The Supreme Court in the above-mentioned case conceived Religion as including all the relevant practices, which are integral to a religion and decided to hold the power of classifying a practice as essential to a religion or otherwise.

Before we proceed to the present status of our dependence on it, let us dwell into several other instances of the DOCTRINE OF ESSENTIALITY being relied upon while delivering justice in the Indian courts.

In 1994, a constitutional bench of the Supreme Court ruled that a Mosque is not a critical part of Islam and Namaz can be offered anywhere as provided in the Islamic texts. The court was delivering the judgement for Dr M Ismail Faruqui & others VS Union of India & others while quoting so.

In the case of Gramsabha of Village Battis Shirala VS Union of India and others in 2014, the court relied upon the Essentiality Doctrine while rejecting the assertion of particular sect that the practice of catching and worshipping live Cobra snakes has been followed since a long time and is an indispensable part of their culture.

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TEST OF ESSENTIALITY VS RELIGIOUS FREEDOM:

 Certain legal scholars such as Prof Faizan Mustafa argue that the test of essentiality robs a religious practitioner off his freedom to approach and follow his religion the way he wishes to.

To support the contention, one must quote the Supreme Court’s acknowledgement in the case of Ratanlal Panachand Gandhi VS The State of Bombay and Others that “every person has a fundamental right to entertain such religious beliefs as may be approved by his judgment or conscience”.

[The Indian Express]

CURRENT DEPENDENCE ON THE ESSENTIALITY DOCTRINE AND HOW IT IS BECOMING A BUZZWORD:

The most recent mainstream case concerning the DOCTRINE OF ESSENTIALITY is the Sabrimala Judgement. In the case, the apex court declared the ban on women of menstruating age (13-55 generally) from entering the Ayyapa Temple in Sabrimala as unconstitutional and void. The provisions of articles 13 and 14 coupled with religious freedoms under Article 25 were quoted by the court.

The court made it clear that it will approach the case from the lenses of the DOCTRINE OF ESSENTIALITY and will check whether the religious practices was actually of great significance to the existence of the religion or not.

The Supreme Court of India followed the Doctrine of Essentiality while the order banning Jallikattu festival completely in 2014. The judges unanimously reached to a conclusion that it results in animal cruelty and is not a practice essential to the religion.

Still there are many examples of religious practices in controversy for their essentiality, where the Essentiality Doctrine needs to be applied more rationally to ensure better answer to such problems in future.

One of such major practices in question is the tradition of bursting crackers on Hindu festival Deepawali or Diwali. The last decade acted as an eye opener for the world with incidents of forest fires, ice melting, rising ocean levels and frequent earthquakes, all of them being a consequence of climate change. With more people getting educated and aware, the questions on the cracker bursting tradition on Diwali took themselves to multiple platforms evolving into debates.

While the proponents of the tradition said it is a religious practice followed by millions of Hindus since decades, the opponents argued that a tradition which is harmful for the human race and the environment should be not followed rationally.

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Keeping the rising pollution levels, several states in India even banned the use of cracker during Diwali to ensure cleanliness and safety from the sword of Damocles hanging over us I the form of COVID-19 pandemic, which would prove to be more harmful if coupled with the respiratory problems caused due to bursting crackers. It is high time the government or the apex court should act proactively and take a call on the question of such a practice existing by evaluating it from the lenses of the DOCTRINE OF ESSENTIALITY.

Conclusion

It would be safe to conclude by inferring that the Essentiality Doctrine is destined to be used more frequently as we become more rational beings and questions anything unjust around us and eventually move ahead in our path of attaining perfection as a sensible and a secular Democracy.

-Mrutyunjay Saramandal

(Writer, The Legal State)

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