India School Hijab Ban: Majority of Hindu Women Also Cover Their Heads

[Joe Shearer]

Sir, isn't judiciary one of the 3 organs of the State? .. Doesn't the Indian Constitution posit a separation between a secular domain regulated by the State, and a religious domain in which it must not interfere? Aren't Courts supposed to interpret law but not religion?

Yes, Sir, it is indeed one of the constitutional parts of the state.

Yes, again, there is no secular domain regulated by the state, because the entire state is positioned as secular. The State, as you have identified it, is actually two separate entities, the administration, and the legislature. All of these, judiciary, administration and the legislative, are required to work together; their milieu, the milieu common to all of them, is required to be secular.

Regarding the religious domain in which the administration must not interfere, that is defined, clearly and precisely, by the Indian constitution, in Art 25 and Art. 26. If it does interfere, and a citizen is aggrieved, who do you suppose intervenes in the matter, on being invoked? The judiciary does, and that is what happened here. The administration took a decision, and that decision was challenged in court by a citizen.

Regarding your belief that the courts are supposed to interpret law but not religion, no, that is only partly correct. The courts are required to give protection to citizens - not groups, not communities - against breaches of the protection provided in Art 25 and Art 26. How would it do so without checking to see that there was an impediment to the right to practice religion? Who would do the checking other than the court? How would it decide whether first defining what was required of the religion of its followers?

 

[M. Sarmad]

the courts are required to give protection to citizens - not groups, not communities - against breaches of the protection provided in Art 25 and Art 26...

Aren't religious communities recognized as such in Article 26 of the constitution under the label “religious denomination"?

The Supreme Court of India has recognized religion as extending to dress even, when it is regarded as essential part of it. The point is, if the adherents of a particular religion regard a specific dress as an essential part of their belief, how can the secular courts tell them that they are wrong? A religion after all is merely a set of beliefs to which its followers choose to adhere.

 

[Joe Shearer]

Aren't religious communities recognized as such in Article 26 of the constitution under the label “religious denomination"?

No.

It is precisely because the term 'religious denomination' is not defined in the constitution that the courts had to seek a meaning. They touched on it twice:

1. In the case of Commissioner, Hindu Religious endowment Madras v. Shri Laxmindra Thirtha Swamiar of Shri Shirur Mutt, the Supreme Court took the dictionary meaning (from the Oxford Dictionary) as
   
   A collection of individuals classed together under the same name, a religious sect or body having a common faith and organization designated by a distinctive name
   
   
2. In the case of S. P. Mittal vs. Union of India 1983, the Supreme Court laid down three criteria for identifying a 'religious denomination':
   1. t should be a collection of individuals who have a system of beliefs (doctrines) which they regard as conducive to their spiritual well-being;
   2. It should have a common organization; and
   3. It should be designated by a distinctive name.

They are not 'recognised as such', but have to qualify by these criteria. For instance, there was a case where the Bombay State Government had legislated against the practice of excommunication of individuals by a particular denomination, the Dawoodi Bohra community. The matter went up to the Supreme Court, as the case of Saifuddin Saheb vs. State of Bombay, that ruled upholding the rights of that denomination, as qualified by the measures described above.

The Supreme Court of India has recognized religion as extending to dress even, when it is regarded as essential part of it. The point is, if the adherents of a particular religion regard a specific dress as an essential part of their belief, how can the secular courts tell them that they are wrong?

Two things: this right is not an absolute right, but is subject to the criteria of public order, morality and hygiene.

The second thing was not that the specific dress was banned; it was not, for use in all and any circumstances outside, and the judgement was only with respect to circumstances where there were contradictory rules prevailing. The court ruled that it was not an essential part of their belief.

It is not a question of a secular court. There is nothing called a secular court, in the mediaeval sense of a court that is restricted to secular matters and cannot adjudicate religious matters. You must have seen the long list of cases that I have already forwarded and published in one or the other of these threads, where it clearly shows that the courts of law have, in fact, adjudicated on matters related to the practice of religion or the issues arising out of the practice of a religion. Indian courts are competent, under the constitution, to consider matters related to religion, not to change its essential practices, but to judge if anything can be considered an essential practice.

In two prominent cases before this, the Babri Masjid case, and the case of Shayara Bano vs. the Union of India, the courts examined the beliefs inherent to a denomination. In the second cited case, the court decided that the practice of triple talaq was not an essential practice, and banned it.

A religion after all is merely a set of beliefs to which its followers choose to adhere.

Yes, and it depends on the courts to identify which of these are essential to the practice of that religion.

Consider the case where the purported leader of an obscure sect demanded the right to perform a particular ritual and it was forbidden by the local police. The court examined the ritual, found that it was in no way essential to the practice of that religion, and upheld the police ban.

I realise the difficulty that members who are not Indian face in accepting that Indian courts have such powers. This is the reality today, and courts can enter into any matter, and the only recourse, in case any party feels aggrieved by a judgement, is to appeal to a higher court.

This matter will be heard soon by a 9 member bench of the Supreme Court on appeal.

 

[M. Sarmad]

This matter will be heard soon by a 9 member bench of the Supreme Court on appeal.

Well, the five-judge bench of the Indian Supreme Court unanimously observed in the controversial 2019 Babri Masjid judgement:

“This court, as a secular institution, set up under a constitutional regime must steer clear from choosing one among many possible interpretations of theological doctrine and must defer to the safer course of accepting the faith and belief of the worshipper,”

And this^^ , sir, is exactly what I am trying to say here.

I, however, do understand that sometimes, for practical purposes, it becomes necessary for the courts to interpret the law in contradiction with the letter and spirit of the constitution. And most of the times Hindus had been on the receiving end of this 'judicial overstepping', (at least before the saffronization of India)

 

[Joe Shearer]

“This court, as a secular institution, set up under a constitutional regime must steer clear from choosing one among many possible interpretations of theological doctrine and must defer to the safer course of accepting the faith and belief of the worshipper,”

I am very glad you quoted this.

The Karnataka High Court used exactly the same book, the translation of the Holy Quran, that the Supreme Court had used on that occasion, and for that very reason. The faith and belief of the worshipper was what had to be defined by reference to the original source, not according to custom. They literally went by the book.

 

[Joe Shearer]

And most of the times Hindus had been on the receiving end of this 'judicial overstepping'

Here is what I had printed here earlier, reproduced for convenience.

[13:43, 3/16/2022] Joe: I am reproducing here several instances of court rulings on Essential Practices in Religions, as that subject is in our minds at the moment.
[13:45, 3/16/2022] Joe: No interpretation is attempted. It is possible to reproduce the entire judgement in full, however, although I believe it is better done for individual members who want to enquire further.
[13:45, 3/16/2022] Joe: In 1954, a 7 Judge Bench of the Supreme Court held that “[w]hat article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality, but regulation of activities which are economic, commercial or political in their character though they are associated with religious practices.” The Court rejected a suggestion by the Advocate General of Madras which proposed that only “essential” practices of a religion be given constitutional protection, pointing out that “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.”
[13:46, 3/16/2022] Joe: 1959
Sardar Sarup Singh v State of Punjab
The Supreme Court heard a challenge against section 148-B of the Sikh Gurudwaras Act, 1925, which provided for the setting up of a Gurudwara Board and introduced new members. The petitioners argued that s. 148-B infringes Article 26(b) of the Constitution, which grants every religious denomination the right to manage its own affairs in matters of religion, for it does not allow for direct elections of members of the Board by the Sikh Community. The argument advanced by the State of Punjab was that matters of religion in the sense of essential beliefs and practices of the Sikh faith are left untouched by section 148-B, and even other relevant sections of the principal Act do not interfere with Sikh religion. Applying…
[13:47, 3/16/2022] Joe: 1961
Durgah Committee, Ajmer v Syed Hussain Ali
The Supreme Court decided on a challenge to the Dargah Khwaja Saheb Act, 1955 which claimed that it violated the fundamental rights of Muslims belonging to the Soofi Chistia Order. They members of the order claimed it was they who were the sole custodians of the shrine at Ajmer. The Act, however, permitted all Hanafi Muslims to partake in the maintenance and affairs of the Dargah. The Court rejected the challenge to the Dargah Act observing that the tomb had never been confined to members of the Soofi Chistia Order. The Court further held that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise e…
[13:48, 3/16/2022] Joe: 1962
Sardar Syedna Taher Saiffuddin Saheb v State of Bombay
The Supreme Court applied the ERP test to determine whether the Bombay Prevention of Excommunication Act, 1949 violated the fundamental rights under Articles 25 and 26 of the Dawoodi Bohra Community. The Head Priest of this community was vested with certain powers, one of which included the power of excommunication, which was to be exercised in accordance with the tenets of the community. Such power, it was argued, was integral to the religious faith and beliefs of the Dawoodi Bohra Community which was a religious denomination under Article 26 of the Constitution. With a 4:1 majority, the 5 Judge Bench of the Supreme Court upheld the right and power of excommunication bestowed upon the Head Priest o…
[13:49, 3/16/2022] Joe: 1963
Tilkayat Shri Govindlaji Maharj v State of Rajasthan
In a challenge to the Nathdwara Temple Act, 1959 enacted by the State of Rajasthan by the Tilkayat, the question before the Court was whether the tenets of the Vallabh denomination and its religious practices restricted worship to private temples managed by the Tilkayat alone. If so, would an Act enacted for the management of the Temple would be ultra vires the Constitution in view of Article 25. It was held that a practice is considered essential to a religion if it is essential to the community following the religion. Furthermore, Article 25(1) and 26(b) offers protection to religious practices. Affairs which are purely secular may be regulated by statute without infringing the aforesaid articles. I…
[13:50, 3/16/2022] Joe: 1972
Seshammal & Ors v State of Tamil Nadu
Questioning the validity of the Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act, 1970, the petitioners claimed a violation of Articles 25 and 26 of the Constitution. The Court disagreed. It was held that the purpose of the Act was to regulate secular functions like management and administration, which included the appointment of the Archaka. It did not however aim to regulate or change the rituals and ceremonies followed in the temples. The Court however clarified that while the appointment of Archakas was a secular function, the sect or denomination from which they were to be appointed was to be in accordance with the Agamas as that was essential to and firmly embedded in the religion.
[13:51, 3/16/2022] Joe: 1997
Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi & Ors. v State of UP & Ors
Upholding the validity of the U.P. Sri Kashi Vishwanath Temple Act, 1983, the court drew a distinction between the religious and secular functions of the Temple. The impugned Act, it was held, only pertained to the latter, i.e. the secular functions of administration and management of the Temple. These were not essential or intrinsic elements to the practice of the religion and the Legislature was thus competent to enact a law that did not entrust the Government with the power to interfere with the day-to-day religious practices.
[13:51, 3/16/2022] Joe: 2004
Commissioner of Police v Acharya Jagadisharananda Avadhuta
The Court applied the test of essential religious practices in deciding whether the Tandava Dance was an essential rite of the Ananda Marga Faith as held by the High Court. Though the Ananda Marga faith was founded in 1955, the Tandava dance was introduced to its followers in 1966 and was prescribed as an essential religious practice in the Carya Carya in 1986. Despite this scriptural injunction, the Court in its majority opinion held that the Tandava Dance was not an essential practice of the Ananda Marga faith. The Court observed that in order to determine whether or not a particular practice is an essential part of religion, the test must be whether the absence of the practice itself fundamentally alters the religion.
[13:52, 3/16/2022] Joe: 2016
Adi Saiva Sivachariyargal Nala Sangam v Government of Tamil Nadu
An amendment to the Tamil Nadu Hindu Religious and Charitable Endowments in 1970 abolished the practice of appointing religious office holders on a hereditary basis. The Court upheld the amendment’s constitutionality in 1972 in the Seshammal Case. However, in 2006, a government order was issued directing that Archakas of the temples were to be appointed without any discrimination stemming from customs on the basis of caste or creed. This Government order was for interfering in essential matters of the denomination of Archakas. Relying on the decision in Seshammal, the Court reiterated that though appointment was a secular function, the denomination of the Archakas must be in accordance with the Agamas. The Agamas restricted the appointment of Archakas to particular religious denominations. However, the Court did go on to hold that religious treatises like the Agamas must conform to the constitutional mandate and not practice exclusion on the basis of constitutionally prohibited criterion like Caste.
[13:53, 3/16/2022] Joe: 2017
Shayara Bano v Union of India
Rejecting the argument that the practice of Triple Talaq was an essential practice under Islam, the Supreme Court held that it was not an essential practice and could not be offered constitutional protection under Article 25. The Court held that it was against the basic tenets of the Quran and thus violative of the Shariat. A practice that is merely permitted or not prohibited by a religion cannot be considered an essential or positive tenet sanctioned by that particular religion. Triple Talaq is only a form of talaq which is permissible in law, but at the same time, stated to be sinful by the very Hanafi School which tolerates it. Therefore, this would not form part of any essential religious practice as the fundamental nature of the Islamic religion, as seen through an Indian Sunni Muslim’s eyes, will not change without this practice.

 

[Joe Shearer]

most of the times Hindus had been on the receiving end of this 'judicial overstepping',

Nothing wrong with that. I was personally dreading the Sabarimala judgement, fearing that the huge mass of public opinion would weigh heavily on the judges. Fortunately, they did it by the book, and the judgement was all that the heart could desire.