– Prachi Tiwary335


This paper deals with the conflict that has existed between religion and Constitution or rather religious faith and justice since time immemorial. Right to profess, practice and propagate religion, though guaranteed by the Constitution, is also restricted by notions of public order, morality and health. It is here that the dissension arises. It is true that religion and practices associated with religions existed even before the Constitution came into force, but not every religious practice should find a place in a society where such practice might have an impact on another very basic human right. Hence, the judiciary came up with the Essentiality test whereby only those practices which are essential to a religion be allowed. However, what constitutes an essential practice could not be defined clearly by the able- handed judiciary, given the nature of complexities of a subject as religion, the conflict between the two has always arisen. The paper attempts to cover several instances of religious practices coming in conflict with secular laws of the land. These cases have not only questioned as to what constitutes an essential religious practice but have also focused on how the constitutional provisions must be interpreted. From Sabarimala temple entry row to triple talaq and santhara, this article attempts to cover all the leading judgments on the issue and raises a simple question- Whether the Judiciary has absolute right to meddle in matters of religion and if it does what are the limits of the same?


The Constitution of India recognizes 22 different languages as the official languages of the country336 . As many as 9 religions are practiced by people in India who speak over 1652 different languages. 337 To maintain peace in such a culturally diverse Indian milieu was considered extremely essential by the Constituent Assembly and hence, the freedom to practice and propagate religion was provided for in the Constitution.

As against the rule in the West, there is no separation of religion from the State in India. India is a ‘secular’338 state where all religions are given equal respect and equal treatment. Religion continues to assert its authority over personal law matters. Secularism was implicit in the constitution much before it was added to the Constitution by the 42nd Amendment. In the case of Kesavananda Bharati v. State of Kerala339, it was held that secularism is a basic feature of the Constitution.

Article 25 while reassuring freedom of conscience and the right to freely profess, practice and propagate his religion, does not affect the operation of any existing law or preventing the States from making any law regulating or restricting any social, financial, political or other secular activity which may be associated with the religious practice.340 Article 26 equally guarantees freedom to manage religious affairs, equally subject to public order, morality and health341.

The right to the freedom of religion is made subject to restrictions imposed for the protection of various social interests referred to in article 25. In A.S. Narayana Deeshitalyu v. State of A.P.342 , the court held:

“The right to religion guaranteed under Article 25 or 26 is not an absolute or unfettered right; they are subject to reform on social welfare by appropriate legislation by the State. The Court therefore while interpreting Article 25 and 26 strikes a careful balance between matters which are essential and integral part and those which are not and the need for the State to regulate or control in the interests of the community.”

In this case the petitioner, the Chief priest in an ancient and renowned temple challenged the validity of the Andhra Pradesh Charitable and Hindu Religious and Endowments Act abolishing hereditary rights of the office holders on the ground that it violates the freedom of religion under Article 25 and 26 of the Constitution. It was contended that that abolition of hereditary rights created by the founders interfered with the religious practices and customs which are essential part of religion. The Court held that such hereditary rights cannot be claimed to be an essential matter of religion or religious practices. The act regulates only secular part of religious institutions and does not interfere with the performance of any religion’s worship or ceremony.

A joined elucidation of Article 25 and 26 of the Constitution leads to the conclusion that religion is not just confined to religious relief but include practices which are regarded by the community as a part of their religion 343 . The Supreme Court in Tilkayat Sri Govidlalji v. State of Rajasthan344, observed that the religious practice to which Article 25(1) refers and the ‘affairs in the matters of religion’ to which Article 26(b) refers, incorporate practices which are vital parts of the religion itself and the assurance ensured under Article 25(1) and Article 26(b) of the Constitution stretch out to such practices.

Even before the constitution came into force, there have been interesting cases where religion came in conflict with law and such were decided as Subramania Iyer has observed in the Tirupathi mahant case345, “Fiat justitia ruat caelum” meaning, “Let Justice be done even though the heavens fall.”346

In that case, when the administration of the temple passed on from the East India Company to the mahant of Tirupathi, a flagstaff was erected and devotees donated large sum of money to acquire gold coins. These were to be placed at the base of the flagstaff. But soon, the mahant was charged with misappropriation of the coins and replacing them with copper coins. The question which arose was whether the flagstaff could be dug to find out the truth or such course would harm the religious sentiments and hence be not done. The case went up to the Madras High Court which upheld the Magistrate’s order and asked to dig out the flagstaff and the revelation was what was expected. There were no gold coins. Hence, even when the Constitution was not adopted, the rule was that justice must prevail above all.


Though the Supreme Court did not define the term ‘religion’ in Ratilal Gandhi v. State of Bombay,347 but the court held that religious practices and performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines.

The protection guaranteed under Article 25 and 26 is not limited to beliefs and doctrines but also extend to acts done in pursuance of religion, like rituals and observances, ceremonies and modes of worship.

To determine which elements are essentially religious, the Courts face challenges like, defining religion and determining the extent of independence of religious denominations. The Supreme Court in the case of Commissioner, Hindu Religious Endowments, and Madras v. Sri Lakshimindra ThirthaSwamiar of Sri Shirur Mutt348 propounded the essentiality test whereby only those rituals and practices which are integral or fundamental to a religion constitute essential religious practices. Such practices must be mandatory and not optional. Only then can it seek protection under Article 25. If such a practice is not mandatory, it might be questioned under Article 14 for being arbitrary.

In Durgah Committee, Ajmer v. Syed Hossain,349 the Court observed that in order that the practice in question should be treated as a part of the religion, they must be regarded by the said religion as its essential and integral part; otherwise, even purely secular practices which an essential or integral part of the religion are not are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 26.

Thus, whether a particular ritual or observance of a ceremony is an essential part of the religion and religious practices is a question which cannot be decided without referring to the doctrine of a particular religion including the practices which have been regarded by the community as a part of its religion.

Rationality of a particular religious practice or its reasonableness is doubtful tests to lay down a formula as to whether a particular religious practice or ritual is an essential part of religion or not.

In the case of Bijoe Emmanuel v. State of Kerala,350 while interpreting Article 25, the court held that notwithstanding the fact that a particular religious belief or practice does not appeal to our sentiment or reason, it would attract the provisions of Article 25 if the belief is genuinely and conscientiously held as a part of the profession or practice of religion.

Justice B. K. Mukherjee on the Hindu Law of Religious and Charitable Trusts advised that if the court began enquiring and choosing the discernment of a specific religious practice at that point there may be disarray and the religious practice would progress toward becoming what the courts wish the practice to be.351 The endeavor of the Courts to decide judicially what are or are not the fundamental parts of a religion may bring up troublesome issues whose justifiability is farfetched.

It is all the more suspicious when legal dicta attempt to set out the recipe that whether a specific religious practice is a essential part of the religion or not is a target question to be controlled by the Court by looking to the fundamentals of the religion itself. The typical characterization of objective and subjective tests is plagued with numerous challenges here.

In Saifuddin Saheb v. State of Bombay352 the majority of the Apex Court, Chief Justice Sinha dissenting, held that the power of the head of the Dawoodi Bohra community to ex-communicate a person for the purpose of enforcing religious discipline in the fold was a matter of religion, even though the act of ex-communication resulted in the forfeiture of valuable civil rights of the person ex-communicated.

The Supreme Court in Hanif Qureshi vs State of Bihar353, held that the sacrifice of a cow on the occasion of Eid was not an essential religious practice for Muslims and stated that there is no material on record to say, in the face of the foregoing facts, that the sacrifice of a cow on that day is an obligatory overt act for a Muslim to exhibit his religious belief and idea. The court observed that Mughal emperor Babur saw the wisdom in prohibiting cow slaughter and asked Humayun to follow this. It was further followed by Akbar and Ahmed Shah and hence, nowhere in the history does Islam mandate or compel cow slaughter.

In Acharya Jagdishwaranand vs Commissioner of Police, Calcutta354, (popularly known as the Ananda Marga Case) the question before the Court was whether the Ananda Margis had a fundamental right within the meaning of Art. 25 or Art. 26 to perform Tandava dance and carry lethal weapons and human skulls on public streets and public places.

The court examined the question whether the Tandava dance was a religious rite or practice essential to the tenets of the Ananda Marga and found that it was not and hence the order under Section 144, Cr.P.C. prohibiting such procession in the interest of public order and morality was not violative of rights of petitioners under Article 25 and 26 of the Constitution. On that finding the court concluded that the Ananda Marga had no fundamental right to perform Tandava dance in public streets and public places.

In Mohammed Zubair Corporal vs Union of India355, Zubair, who was a member of the Indian Air Force, sported a beard, which was not allowed as per the Air Force Regulation. An exception to this was Regulation 425(b), which applied to “personnel whose religion prohibits the cutting off the hair or shaving off the face of its members”. Zubair made a claim under the said regulation stating that Islam did not allow shaving of facial hair and it was an essential religious practice.

The Supreme Court held that maintaining a beard was not mandated by the religion practiced356 by Zubair and was not integral to his religion. Whether a particular religious conviction or practice appeals to our reason or not is irrelevant. What matters is that it must be truly and faithfully held to be essential with regards to that particular religion. Individual perspectives and responses are irrelevant. If the conviction is truly and faithfully held it attracts the assurance of Art. 25 however subject, of course, to the restraints contained in that.


The essentiality doctrine of religious freedom357 comes with its own absurdities; this doctrine does not find a place in Article 25. Article 25 in it being so wide, sets no such standards for religious practices to qualify as essential. What might be an essential practice for a minority of a religion might not be an essential practice for the vast majority of followers. There have been several instances of absurdities committed by the Supreme Court in determining cases involving religious practices.

The most significant being the case of Ismail Faruqui v. Union of India358 where the Supreme Court went to the extent of determining whether going to the mosques for prayers constitute an essential practice in Islam. The Court held that though offering prayers constituted an essential Islamic practice yet offering such prayers at the mosque only is not essential. “A mosque is not an essential part of the practice of the religion of Islam”, the Court stated.

In Nikhil Soni v. Union of India359, the age old practice of Santhara was held to be an essential religious practice of the Jains and thus, constitutional. The Court held it to be a conscious process of spiritual purification, different from suicide.

Earlier, the Rajasthan High Court had objected to the shibboleth holding it as unconstitutional. It had stated that “We do not find in any of the scriptures, preachings, articles or practices followed by the Jain ascetics, the Santhara…has been treated as an essential religious practice, nor is necessarily required for the pursuit of immortality or moksha.

The Supreme Court in Madhu Kishwar & Ors v. State Of Bihar & Ors360 when confronted with the issue of whether tribal customs could be challenged on the ground that they violated fundamental rights dodged the issue by stating that: “For in whatever measure be the concern of the court, it compulsively needs to apply, somewhere and at sometime, brakes to its self-motion, described in judicial parlance as self-restraint…under the circumstances it is not desirable to declare the customs of tribal inhabitants as offending Articles 14, 15 and 21 of the Constitution…”

In a case before the Bombay High Court361, it was held that exclusion of women from the inner sanctum of the Haji Ali Dargah by the Dargah Trust violated not only their fundamental right to religious freedom under article 25 but also their right to equality and non-discrimination under article 14 of the Indian Constitution and stated that the entry of women into the Dargah was not a religious matter. The respondent’s claim that a woman going near the grave of a male Muslim saint was against the tenets of Shariyat law and also a sin did not come from the basic scriptures of Islam and hence cannot be considered essential to the religion.

In another significant case362, the Court declared Tamil Nadu Regulation of Jallikattu Act, 2009 as constitutionally void, being violative of Article 254(1) of the Constitution. However, the tumult created afterwards left the decision unenforceable. Due to these protests, on 21 January 2017, the Governor of Tamil Nadu issued a new ordinance that authorized the continuation of Jallikattu events. On 23 January 2017 the Tamil Nadu legislature passed a bi-partisan bill, with the accession of the Prime Minister, exempting Jallikattu from the Prevention of Cruelty to Animals Act (1960).

The question as to what extent can practices infringing basic rights can be allowed without the intervention of the able-handed Judiciary and to what extent can the judiciary interfere into people’s faith deciding what is constitutional and what is not remains unanswered363. Should some religious practices be allowed without any questioning as to what should be or what should be not in the name of according constitutional freedom of religion or should the secular state be given absolute power to eradicate baseless practices which infringe other fundamental rights?

Amidst all the controversy related to the practice of triple talaq or ‘talaq-e-biddat’, the Supreme Court in a 3:2 ratio declared it unconstitutional in the case of Shayara Bano v. Union of India364. The Constitutional Bench also stated that such practice could not be regarded as a part of any “essential religious practice” of the followers of Islam, and hence, could not be entitled to the protection of Article 25.

The court reasoned that the fact that Muslim countries have undergone extensive reforms also establishes that the practice in question is not an essential religious practice365. The court also directed the Legislature to come up with legislation on marriages and divorces among the Muslim community. After several attempts of the government to make a law on the subject, the Muslim Women (Protection of Rights on Marriage) Bill, 2018 was tabled in the Lok Sabha and it is yet to be deliberated upon in the Rajya Sabha.


The road leading to Sabarimala hasn’t been easy for women even after the historic verdict of the Supreme Court on the issue. Sabarimala has been the place of Lord Ayappa who as per beliefs is known to practice Naishtik Brahmacharya and hence women have not been allowed into the shrine since ages366.

The non-entry of women in the temple was challenged for the very first time in the case of S Mahendran v. The Secretary, Travancore Devaswom Board 367 . The Kerala High Court, elaborating on the concept of Secularism stated-

“There is no mysticism in the secular character of the State. Secularism is neither anti-God, nor pro-God; it treats alike the devout, the agnostic and the atheist. It eliminates God from the matters of the State and ensures that no one shall be discriminated against on the ground of religion.”

Stating that the court cannot delve into matter of religion, the court upheld the practice of banning entry of women belonging to the age group of 10 to 50 years in the Sabarimala temple during any time of the year.

However the issue came up again before the Supreme Court in the case of Indian Young Lawyers Association and Anr. v. The State of Kerala and Ors368. The Constitutional bench observed that everyone can enter the temple regardless of their sex. The bench stated that “a woman’s right to pray was not dependent on any law but is a Constitutional right” and that “what applies to a man applies to a woman as well.” Chief Justice Dipak Misra, while hearing the matter observed, “On what basis you (temple authorities) deny the entry. It is against the Constitutional mandate. Once you open it for public, anybody can go.” The Court further stated that neither was this an essential religious practice nor were the devotees of Ayappa a separate religious denomination.

The decision which was given in favour of women thwarted the age old belief and at the same time pandemonium broke loose in the country among the devotees of Lord Ayappa against such ruling. Patriarchy has set its root deep enough not to let women inside the shrine even after the Supreme Court verdict. However, the social stigma around not letting a woman of menstruating age go to the shrine appears to have no cogent reasoning.


Article 13(1) of the Constitution provides that all laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of Part III, shall, to the extent of such inconsistency, be void.

Whether personal laws come within the meaning of law in Article 13 is a question which has been posed before courts numerous times.

Article 13(3) (b) defines laws in force and that definition is:

“‘Laws in Force’ includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not he then is operation either at all or in particular areas.”

It is clear that the definition of “laws in force” as per Article 13(3) (b) is an inclusive and not an exhaustive one369. Therefore, it may appear that “all laws in force,” giving that expression its natural meaning would include personal taws because they were laws which were in force in the territory of India. There was no reason why the Constituent Assembly would have intended to make any distinction between statutory law and personal law as far as fundamental rights were concerned or grant immunity to personal laws against the provisions of the Constitution370.

The viability of fundamental rights should be no less when considered in the context of personal laws than it is when considered in the contest of statutory laws.

This question came up before the Division Bench of Bombay High Court in State of Bombay v. Narasu Appa Mali371. “Whether the personal laws applicable to the Hindus and the Muslim are laws in force within the meaning of Art. 13(1) of the Constitution”, and must, in order to survive Art. 372(1) and Art. 13(1), satisfy the requirements of Arts. 14, 15 and other Articles of Part III. Both Chief Justice Chagla and Justice Gajendragadkar had, in their separate though concurring judgments, answered the question in the negative. Personal laws cannot be said to be passed by the Legislature and do not fall within the purview of the expression ‘laws in force’.

In Re. Amina372, the same court expressed doubt on this decision of the Division Bench and it was observed that personal laws are law and laws in force under Article 13 of the Constitution of India and are enforceable in the courts subject to provisions of the Constitution. If customs and usages are against or inconsistent with the Fundamental Rights or any provision of the Constitution, they must be declared void. Creating immunity in favor of personal laws does not seem to be the intention of the founding fathers of the Constitution.

Even the Constituent Assembly considered this contention; some prominent Muslim leaders like Mohammed Ismail373 sought to immunize the Muslim personal law from state regulation. He gave the example of a few European nations like Yugoslavia which protected the personal laws of Muslims. However, Ambedkar noted that in a secular state religion should not be allowed to govern all human activities and that personal law should be divorced from religion.

The major contention of the Muslim leaders was against inclusion of Article 44, which talks about the Uniform Civil Code to which the drafting committee claimed that the state can enact a common civil code without invoking Article 44. Eventually, the arguments of Ismail were rejected. The debates, thus clarify that religious freedom does not provide any immunity to the personal law from state regulation.

Talking about the personal law, we need to examine whether reforms in the personal laws are in violation of the Article 25 of the Constitution. The Hindu personal law has been reformed through much progressive legislation such as the Hindu Marriage Act & Hindu Succession Act374. These legislations have not only established a more gender-neutral system but also reflect the welfare of the entire society. On similar lines, the Allahabad High Court375 upheld the constitutionality of abolition of polygamy under the Hindu Marriage Act 1955.

The court said that polygamy is not an essential religious function of Hinduism and even if it is the prohibition of polygamy was a measure of social welfare and reform376. Now, if the courts can abolish the polygamy among Hindus basing their arguments primarily on social welfare and reform, the same can be and should be done in case of other religions377. The most basic notion of a secular state is to treat all the religions equally and the directive principle of common civil code is essential for the welfare and making of a civilized society378.

The Supreme Court, lately, has been proactive in this regard. The judgement of Shayara Bano379 is a glaring example where the apex court held Triple Talaq as unconstitutional and oppressive. The court noted that Triple Talaq is not a part of the essential religious practices protected by the Article 25 of the Constitution and is instant and irrevocable, making it against the basic notions of civilized society380. The court is also considering the constitutionality of Nikah Halala381 and also a petition on polygamy in Muslims.

Therefore, it is evident from the above discussion that the Constituent assembly refused to make the Muslim Law immutable of state reforms and legislations. The Supreme Court has also given a very progressive interpretation of these laws as a measure of social welfare and reform. Any reform in the Muslim Law is, therefore, not unconstitutional so far as it is in conformity with the basic notions of morality and justice.


By far from our discussion, we have come to the conclusion that India is a land of various faiths, cultures and religions. The constitution has established the country as a secular republic by making freedom of religion and conscience a fundamental right. It is, however, also evident that the framers of the constitution did not aim to immunize the religious practice from state regulation. This is evident from the constituent assembly debate as discussed above.

The apex court time and again has gone an extra step to decide whether a practice constitutes the essential religious practice and if it does; it is beyond the ambit of state regulation and control. It is also to be noted that the courts of record i.e. Hon’ble Supreme Court and various High Courts are the caretaker of the constitutional principles including the fundamental rights by the virtue of Article 32 and Article 226 respectively. The courts have not only prevented and acted upon the violation of freedom of religion and conscience but by the doctrine of essential religious practices put a reasonable limit to it.

The doctrine helps, by court intervention, insure that superstitions and dogmas which are against the spirit of the constitution and the welfare of society are not carried on in the name of freedom of religion. We also discussed an angle of modification of personal laws of different communities and it can be substantiated by the constituent assembly debates that the personal laws do not enjoy immunity from state regulation. Therefore, where it is imperative to grant the freedom of religion to its entire citizen, it is equally important for the state to keep a check upon the misuse of the right in promotion of superstitions and beliefs which are opposed to the basic notions of justice and morality.