The Supreme Court has by a majority of 2-1 refused to refer for reconsideration by a larger Bench the five-judge Constitution Bench judgment in Dr M Ismail Faruqui and Ors vs Union Of India and Ors (October 24, 1994), which upheld the law under which the Centre acquired the disputed land in Ayodhya on which the Babri Masjid had stood. The Constitution Bench had ruled that “A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open.”
Thursday’s majority judgment — written by Justice Ashok Bhushan for self and Chief Justice of India Dipak Misra — declined to revisit the so-called ‘essentiality doctrine’ that has been criticised by several constitutional experts. The refusal to refer Ismail Faruqui came despite the court having recently referred questions related to the banning of female genital mutilation (in Sunita Tiwari v Union of India & Ors on September 24, 2018) and polygamy (in Sameena Begum v Union of India & Ors on March 26, 2018) for consideration by a larger Bench. Justice S Abdul Nazeer’s dissenting opinion flagged this seeming inconsistency.
A seven-judge Bench of the Supreme Court invented the doctrine of “essentiality” in the Shirur Mutt case in 1954. The court held that the term “religion” will cover all rituals and practices “integral” to a religion, and took upon itself the responsibility of determining the essential and non-essential practices of a religion. The essentiality/integrality doctrine has tended to lead the court into an area that is beyond its competence, and given judges the power to decide purely religious questions.
Over the years, the court has been consistently inconsistent on this question — in some cases it has relied on religious texts to determine essentiality, in others on the empirical behaviour of followers, and in yet others, based on whether the practice existed at the time the religion originated. Consider:
* In the beginning, the court engaged with the question of whether untouchability, manifested in restrictions on entry into temples, was an “essential part of the Hindu religion”. After examining selected Hindu texts, it came to the conclusion that untouchability was not an essential Hindu practice.
* Writing the five-judge verdict in The Durgah Committee, Ajmer and Anr vs Syed Hussain Ali and Ors (March 17, 1961), Justice P B Gajendragadkar added the ‘secular’ requirement of rationality to the essentiality test. Durgah Committee denied validity to “practices (which) though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself”.
* In Gramsabha of Village Battis Shirala vs Union of India and Ors (2014), a particular sect relied on the Shrinath Lilamrut to claim before the Bombay High Court that capturing and worshipping a live cobra during the Nagpanchami festival was an essential part of their religion. The court, however, put reliance on Dr P V Kane’s Dharmashastracha Ithihas, which referred to the general Hindu practice, to reject this contention.
* In a case where a Muslim police officer challenged in Kerala High Court a regulation that did not permit him to grow a beard, the court, rather than looking at the question of essentiality of beard in Islam, rejected the petitioner’s plea by simply relying on the fact that certain Muslim dignitaries do not sport beards, and that the petitioner did not have a beard in his previous years of service. The court looked at empirical evidence of the practice, rather than at religious texts. However, despite empirical evidence to the contrary, courts have denied protection to the animal sacrifice among Hindus, terming the practice as barbaric.
* In the First Ananda Margi case, the apex court relied on the doctrine of precedent to hold that tandava dance was not an essential practice of the Ananda Margi faith. It also said that the faith had come into existence in 1955, while the tandava dance was adopted only in 1966 — therefore, as the faith had existed without the practice, the practice could not be accepted as an essential feature of the faith.
In fact, the idea of providing constitutional protection only to those elements of religion which the court considers “essential” is problematic in so far as it assumes that one element or practice of religion is independent of other elements or practices. The essentiality test privileges certain practices over others; however, it is all practices taken together that constitute a religion.
Ismail Faruqui case
In Ismail Faruqui, the apex court, without looking at Islamic sources, decided that unless a mosque has peculiar significance, it is not essential. The main legal issue before the court was whether the state had the power to acquire a mosque. Instead of settling the issue in favour of the state by relying on the principle of eminent domain (under which the government can acquire any land), the court chose to go into the question of whether praying in a mosque is an essential practice of Islam. The court held that while offering of prayers is an essential practice, the offering of such prayers in the mosque is not, unless the place has a particular religious significance in itself. In the case decided Thursday, Dr Rajeev Dhavan, who appeared for the appellants, had sought review of this observation.
Essentiality and individual autonomy
Freedom of religion was meant to guarantee freedom to practice one’s beliefs based on the concept of “inward association” of man with God. The apex court in Ratilal Panachand Gandhi vs The State of Bombay and Ors (March 18, 1954) acknowledged that “every person has a fundamental right to entertain such religious beliefs as may be approved by his judgment or conscience”. The framers of the Constitution wanted to give this autonomy to each individual. The essentiality test impinges on this autonomy. The apex court has itself emphasised autonomy and choice in its Privacy (2017), 377 (2018), and Adultery (Thursday) judgments.
What happens now
The majority verdict has clarified that the observation in Ismail Faruqui that mosque is not an integral part of Islam will have no bearing on the title suit of appeal against the Allahabad High Court judgment. However, by refusing review, the court has refused to examine whether essentiality of any practice of any religion can be decided without examining the religious texts of that religion. It has also refused to consider the question of whether the freedom of religion protects only practices of particular significance, and not all religious practices. The question of comparative significance of religious practices also remains untouched.
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