By Tahir Mahmood
November 4, 2016
When THE SUPREME Court of India upheld the validity of police bans on the Anand Margi practice of performing Tandava Nritya, community leaders saw in it denial of their constitutionally protected right to religious freedom. The same was the reaction of Jain saints when the Rajasthan High Court last year declared illegal the practice of Santhara. And, now the provision for religious freedom under the Constitution is being invoked by Muslim theologians opposing the petitions of some divorced Muslim girls in the apex court seeking a ban on what is called “triple Talaq”. These and many other similar cases point out to a mistaken belief in the society that the Constitution furnishes a blanket protection to all sorts of archaic social practices bearing a religious tagline.
In Part III of the Constitution, which assures people certain fundamental rights, Article 25 proclaims that “all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion”. What people fail to notice is that this proclamation is prefixed with the words “subject to public order, morality, health and to the other provisions of this Part”, which set conditions precedent for the legal protection of religious practices of any community. The closing words of this prefatory rider in Article 25 virtually constitute a subordination clause placing other fundamental rights mentioned in Part III over and above the right to religious freedom. Among those other fundamental rights is the right to equality before law and equal protection of laws — assured at the outset and elaborated in later articles to mean, inter alia, that the state shall not deny equal protection of laws to any person or group of persons on the basis of religion alone.
“Give what is Caesar’s to Caesar and what is God’s to God” is said to be part of Jesus Christ’s teachings. Realising that in the Indian tradition too much is believed to be God’s than Caesar’s, Constitution-makers found it necessary to clarify the limits of people’s religious freedom. The clarification came in the form of a declaration in Article 25 that “nothing in this article” shall prevent the state from regulating or restricting by law any “economic, financial, political or other secular activity which may be associated with religion”.
What is, then, the yardstick to decide if any particular tradition is a genuine religious practice or a “secular activity associated with religion”? The Supreme Court has generated a litmus test for this purpose — is it an “essential practice integral to” the concerned religion? And, to find out the true position about it, the court has been looking into authentic texts and their interpretations acceptable unanimously to all of its followers or at least to their overwhelming majority.
As regards the Muslims, under Islamic jurisprudence religious precepts are placed in two separate compartments — Ibadat (spiritual matters) and Muaamalat (temporal matters) — and in either of these, there is a further categorisation. Practices specifically enjoined by the Quran (divine book) or Hadith (Prophet’s sayings) are Farz or Wajib — obligatory absolutely in the first and generally in the latter case. All other actions mentioned in religious books are either Mustahab (recommended) or Jaez (permissible). Going by these classifications, religious practices that are Farz or Wajib for the Muslims will be covered in India by the religious freedom clause of the Constitution. Even what is recommended by religious texts can perhaps be claimed to fall under that protective umbrella, but not what is merely permissible — and certainly not any abominable practice that according to Muslim theologians themselves is Bidat (against true religion).
The provision for religious freedom under Article 25 closes with a final clarification that “nothing in this article” shall prevent the state from making laws providing for social welfare and reform. In its deeper meaning this assertive clause — applicable to all communities — engenders a fiduciary obligation for the custodians of state authority to move in this direction as and when necessary.
Tahir Mahmood was chairman, National Minorities Commission and member, Law Commission