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Supreme Court as Clergy

By Faizan Mustafa

May 20, 2017

At stake is the ‘essentiality test’ where the court privileges certain religious practices over others. But the SC does not have the expertise. This is best left to the clergy. Nikahnama with condition that Triple Talaq shall not be given is the best solution.

Religion has been at the centre of human societal existence since times immemorial. It is, and has always been, an indispensable and ineffaceable part of our lives. Man is ‘incurably religious’; Indians more so. Religion is still the alpha, and the omega of Indian’s life. The Calvinist Theodore Beza has called religious liberty “a most diabolical dogma because it means that everyone should be left to go to hell in his own way’’.

The arguments before the judges from five different religious groups have ended. The bench has very wisely confined itself to the narrow issue of instant triple divorce being a fundamental feature of Islamic law. If it is so, the judges said on the first day, they will not like to interfere.

The All India Muslim Personal Board through Kapil Sibal has argued that triple divorce has been a fundamental feature of Islam for last 1,400 years and is a matter of faith like the birth of Lord Rama at Ayodhya. Muslim women organisations have opposed this view. The Attorney General has argued that since the Board itself admits that triple divorce is sinful, it cannot be a fundamental feature of Islam. Should courts decide what is fundamental and what is not the fundamental practice of any religion? How have courts been deciding the essentiality issue?

The Australian High Court observed in Jehovah’s Witness v. Commonwealth that “What is religion to one is superstition to another”. Ideally the judiciary should not take over the role of clergy.

In Shirur Mutt (1954) case it was held that the term ‘religion’ in Article 25 will cover all rituals and practices which are ‘integral’ to religion. The Supreme Court tried to determine what is integral and what is not. In doing so it impliedly rejected the ‘assertion test’ of US under which a petitioner could just assert that a particular practice was a religious practice and courts would not probe it any further.

The SC observed that the essentiality question must take into consideration what the religious denomination considered essential or crucial to its understanding. Thus the Hanafi school is within its right to consider triple divorce as sinful in theology but valid in law to dissolve a marriage. There is a difference between the two. Quran in itself is not law on most points. Islamic law evolved over a period of time through juristic opinions with Quran and Sunna of Prophet being the primary sources.

The ‘essentiality test’ was originally crystallised in the temple entry case. The court examined selective Hindu texts to ascertain whether untouchability was an ‘essential part of the Hindu religion’ and concluded that it was not.

In Gram Sabha, Bhatti vs Shirala, a particular sect claimed that the capturing and worshiping of a live cobra during Nag Panchami was an essential part of their religion. They placed reliance on the text of Shrinath Lilamrut which prescribed such a practice. The court relied on the more general Dharmashastra text to rule that since there was no mention of capturing a live cobra, it could not be an essential practice of the petitioners’ religion. The court merely relied on a different authority and did not deal with the question that the specific religious text of the villagers prescribed such a practice. In another case a Muslim police officer challenged a regulation which did not permit him to grow a beard. The Kerala High Court simply relied on the irrelevant fact that certain Muslim dignitaries do not sport a beard. Therefore the court looked at empirical evidence of practice rather than religious texts.

Similarly in the Tandava dance, the apex court relied on the doctrine of precedent to hold that the dance was not an essential practice. Thus the essentiality question was not decided by looking at religious texts. The SC’s approach seems to identify a religious practice as integral if it existed when the religion was founded. This logic would lead to religious practices getting frozen in time and no religious reforms can ever take place.

The ‘essentiality test’ reached absurd levels in the Babri Masjid case. Instead of settling the issue in favor of the state by relying on the principle of eminent domain, the court went into the question of whether praying in the mosque is or is not 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.  Everyone knows congregational prayer is central to Islam and the mosques are essential means to achieve this objective.

Under the essentiality test, the court privileges certain religious practices over others. It does not have the expertise to decide which practice/ritual is essential/non-essential. These are purely religious questions, which is best left to clergy. Triple divorce is certainly not an essential Islamic practice but its effect in dissolving marriage among most Sunni sects may be part of their core or essential beliefs. No judgment can change such beliefs. But if the Muslim clergy itself comes forward as the Board has promised, such beliefs may gradually change and the instant triple divorce may eventually end. Nikahnama with the condition that triple divorce shall not be given is the best solution to deal with triple divorce.

The whole concept of providing constitutional protection only to those elements of religion which the court considers ‘essential’ is problematic. Such an approach assumes that one element or practice is independent of the others and that some practices are central while others are just incidental. This is not the correct understanding of religion as all elements and practices together constitute a religion.


Faizan Mustafa is Vice Chancellor, NALSAR University of Law, Hyderabad