Sardar Vallabhai Patel with K M Munshi seated behind him at the first meeting of the Constituent Assembly of India in 1946
In March 1947, [B R] Ambedkar prepared a draft on fundamental rights that was to be used as a template for drafting the Constitution. Importantly, that draft contained an ‘establishment clause’, akin to the one in the first amendment to the US Constitution. It said that ‘[t]he State shall not recognize any religion as State religion’. A draft prepared by K.T. Shah also said that the state would be ‘entirely a secular institution’, which would ‘maintain no official religion [or] established church’ and would ‘observe absolute neutrality in matters of religious belief, worship, or observance’. If these clauses found their way into the Constitution, the Madras Hindu Religious Endowments Act, 1926, might quite possibly have been found unconstitutional.
That month, when the subcommittee on fundamental rights within the Constituent Assembly met, it decided to adopt a draft drawn up by the constitutional adviser to the assembly, Sir B.N. Rau. Rau’s draft gave ‘[e]very religious denomination’ the right to ‘manage its own affairs in matters of religion’, to ‘acquire and administer property immovable and movable’, and to ‘establish and maintain institutions for religious or charitable purposes’. These rights were to be exercised ‘consistently with the rights guaranteed’ under the Constitution. The subcommittee also agreed to adopt the following establishment clause, which was only a stylistic modification of Ambedkar’s draft: ‘Neither the Union nor any unit thereof shall recognize any religion as the State religion.’ Rau’s notes on the draft said that the former clause was based on Section 44(2)5 of the Irish Constitution, while the latter one was based on the first amendment to the U.S. Constitution, and on Article 137(1) of the Weimar Constitution.
Then, something odd happened. On 14 April 1947, the subcommittee discussed the establishment clause, and both K.M. Munshi and K.M. Panikkar promised that they would redraft it, ‘so as to provide for those cases where religion is already accepted as a State religion.’ Two days later, when the subcommittee presented its report on fundamental rights to the Advisory Committee, the establishment clause had unceremoniously vanished, never to return again. The silent deletion of Ambedkar’s establishment clause from the draft constitution was quite mysterious. However, Ambedkar did not submit any minute of dissent in protest.
About a week later, the Advisory Committee of the Constituent Assembly met to discuss the draft clauses of the fundamental rights.
Alladi Krishnaswami Ayyar, a prominent advocate from Madras, suggested that the right of religious denominations to manage their own affairs be made ‘[s]ubject to any law as to maladministration of funds.’ Perhaps Ayyar had the Madras Hindu Religious Endowments Act, 1926, in mind when he suggested this change.
After the draft Constitution was prepared in February 1948, comments were received from B. Pattabhi Sitaramayya and others who wanted to reintroduce an establishment clause along the following lines: ‘No religion shall be recognized as a State religion nor shall any tax be levied for the promotion or the maintenance of any religion.’
Commenting on this suggestion, constitutional advisor Rau said that ‘[t]he proposed amendment involves a question of policy’. Nothing further happened on this suggestion. The entire debate in the Constituent Assembly on the provision in the draft constitution dealing with the rights of religious denominations to manage their own affairs occupies no more than a few pages. Ambedkar merely concluded the discussion with the words: ‘I have nothing to say’. In the Constituent Assembly, H.V. Kamath tried to move an amendment to introduce an establishment clause into the draft constitution to the following effect: ‘The State shall not establish, endow, or patronize any particular religion.’ In support of this amendment, Kamath said that he did not want to be ‘misunderstood’ as saying that ‘a State should be anti-religious or irreligious’. ‘[T]o my mind’, he said, ‘a secular state is neither a Godless State nor an irreligious nor an anti-religious State.’ Another member said that non-establishment was ‘the essence of a secular state’. During the debate, Ambedkar rose and simply said: ‘Mr. Vice-President, Sir, I have nothing to add to the various speakers who have spoken in support of this article.’ Ambedkar rejected most of the amendments which were proposed, including Kamath’s. Kamath objected to this and said that Ambedkar had to offer reasons why he was not accepting each amendment. However, the vice-president, who was presiding over the debate, said that Ambedkar could not be compelled to speak. Kamath’s amendment was put to vote and rejected.
Consequently, Article 26 of the Constitution gives to every religious denomination or a section of it, subject to ‘public order, morality and health’, the right to ‘establish and maintain institutions for religious and charitable purposes’, to ‘manage its own affairs in matters of religion’, to ‘own and acquire movable and immovable property’, and to ‘administer such property in accordance with law’. Importantly, the Constitution itself said that the state could interfere in the management of religious institutions in the interests of ‘public order, morality and health’. Further, for some unknown reason, the Constitution contained no establishment clause.
Religious and secular practice
It was Munshi’s draft which was used as the template for what eventually became Article 25 of the Constitution. In his March 1947 draft, he gave all citizens the ‘freedom of conscience’ and the ‘right freely to profess and practise religion’ though ‘in a manner compatible with public order, morality or health’. This language was derived from the Irish Constitution. Munshi later explained why his draft included a right to ‘practice’ religion, instead of a mere right to worship, by saying that many things ought to be covered by the freedom of religion which do not amount to worship but are nonetheless religious practice. For instance, he invoked the example of the ‘immersion procession of Ganapathi’. ‘It is not worship,’ he said, ‘but practice of religion.’ However, Munshi’s draft also contained an exception that ‘economic, financial or political activities associated with religious worship’ would not be included in the freedom to religion. It was this draft which was adopted by the subcommittee on fundamental rights on 26 March 1947. Thus, Munshi’s draft drew a line between protected religious ‘practice’ on the one hand, and secular ‘economic, financial or political activities’ which, though ‘associated with religious worship’, were not to be protected.
Rajkumari Amrit Kaur objected to Munshi’s draft and said that it might invalidate legislation which sought to terminate antisocial customs. The following month, Sir Alladi Krishnaswami Ayyar too suggested that provision be made for ensuring that the government could enact laws for ‘the social betterment of the people’. He believed that it would be impossible to ‘separate social life from religious life’, that Hinduism involved an ‘intermixture between religion and the social fabric of society’. Consequently, an explanation was added to the draft that the freedom of religion would not ‘debar the State from enacting laws for the purpose of social welfare and reform’. At Munshi’s suggestion, an explanation was also added that the government could enact laws to ‘[throw] open Hindu religious institutions of a public character to any class or section of Hindus’ (which was later broadened to Sikhs, Jains and Buddhists). Soft secularism in independent India therefore contemplated state interference in and reform of religion.
The thin line drawn in Munshi’s draft between protected religious practice and unprotected secular activity would be one which the Supreme Court would explore in the years to come. The question that lay at the forefront of all these cases was: does the right of trustees to manage and administer Hindu temples amount to a practice integral to the religion, or to a secular activity incidental to it?
The Supreme Court permits entanglement
The ‘essential-to-the-religion’ test
Both central and state legislative bodies in India are permitted, under the Constitution, to enact laws relating to ‘religious endowments and religious institutions’. After the constitution came into force, several states enacted laws which allowed the government to heavily regulate religious institutions (usually Hindu temples). Some such statutes covered all the temples in the state, while others were concerned only with a specific temple. By 1960, there were only four states in India where a law governing Hindu temples did not exist. Through these statutes, the state government often interfered and got inextricably entangled with the administration of Hindu temples, and provisions which allowed them to do so were mostly upheld by the Supreme Court on the theory that the management of a religious institution is a secular function which is not essential to religion. In short, the colonial secularism of the Court of Directors of the East India Company, born out of a sense of revulsion towards ‘false’ Indian religions, has been repeatedly rejected by law-makers and courts in independent India.
Both Articles 25 and 26 of the Constitution use the term ‘religion’.
Under Article 25, everyone (and not merely Indian citizens) has ‘the right freely to profess, practise and propagate religion’. Under Article 26(b), every religious denomination has the right ‘to manage its own affairs in matters of religion’. Each of these provisions is subject to public order, morality and health. The Supreme Court has held that the word ‘religion’ essentially means two things. Firstly, it means liberty of religious opinion and belief. In other words, everyone has the freedom to decide which God to worship, or not to worship any God at all. So if the government tells a temple devoted to Vishnu to start praying to Brahma, this would clearly fall foul of the right to freedom of religion understood as liberty of opinion and belief. The fact that Article 25 speaks not merely of a right to ‘religion’, but also to ‘freedom of conscience’ suggests that even atheists and agnostics have the right to believe what they do. ‘Religion’, the Supreme Court has said, is not necessarily theistic, since there are religions in India like Buddhism and Jainism which do not believe in the existence of God.
REPUBLIC OF RELIGION: THE RISE AND FALL OF COLONIAL SECULARISM IN INDIA; Author: Abhinav Chandrachud; Publisher: Penguin Viking; Price: Rs 599; Pages: 320
Secondly, religion includes acts done in pursuance of religious belief. However, these are protected so long as they are integral or essential to the religion. In the early years, the court would ask itself whether the practice in question was religious in nature, i.e. whether it was ‘essentially religious’ as opposed to secular. Now, the court asks itself whether the practice, even if religious in nature, is ‘essential to the religion’. In deciding whether something is essential to a religion, the court takes into account the views of the denomination in question, but those views are not determinative. Only the ‘core beliefs’ of a religion are essential to it. A practice is considered to be essential if the religion itself would fundamentally be altered in its absence. A practice is essential if it has not been changed in any way. Similarly, a practice is essential if it is obligatory. For instance, the Supreme Court has held 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 [the] open’.
Though the Ayodhya case was a title dispute that did not directly involve the fundamental right to religious freedom, the court’s judgment in the case might eventually undo the essential-to-the religion test. Under that test, when a person claims that her freedom of religion has been violated by government action, the court first examines her religion’s doctrines in order to determine whether the right claimed by her is essential to her religion. After the Ayodhya judgment, the court may have to accept the devotee’s claim that a certain course of conduct is essential to the religion and instead investigate only whether the government infringement of that right falls within the permissible restrictions.
The power of courts to investigate whether a practice is essential to religion has recently been referred to a larger bench of seven judges of the Supreme Court.
Excerpted with permission