analysis

Updated: Aug 30, 2016 00:23 IST

There is widespread welcome and justifiable appreciation of the High Court of Bombay’s decision to permit women to enter the inner sanctum of the Haji Ali shrine. The outcome is correct but the reasoning is flawed. The court held that the Quran and the sayings of the Prophet do not prohibit women’s visit to graves.

But then the historic verdict is problematic as yet again the judiciary has taken over the role of the clergy in telling us what is an ‘essential’ and ‘what is not an essential practice’ of religion. Can we permit sati, human sacrifice, triple talaq and polygamy if these practices are deemed to be essential practices?

Read | Bombay HC verdict on women at Haji Ali Dargah reignites Sabarimala debate

The judiciary is wrong in privileging certain religious practices over other and there have been inconsistencies in the use of judicially invented ‘essentiality test’. ‘Essential practices’ of religions in the past had been decided without any reference to the scriptures and dogmas of concerned religions but on the basis of earlier judicial decisions. The high court’s decision has brought this controversy to the centre stage yet again.

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

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The ‘essentiality test’ was originally crystallised in the temple entry case. The court engaged itself with the question of whether untouchability, manifested in restrictions on temple entry was an ‘essential part of the Hindu religion’. The court after examining selective Hindu texts came to the conclusion that untouchability was not an essential Hindu practice. The better course should have been to refer to the Constitution’s abolition of untouchability. Similarly in the Haji Ali case, the court should have confined itself just to right to equality as the freedom of religion is subservient to all other fundamental rights.

Similarly in the tandava dance case, though the Calcutta High Court had originally found that the tandava dance was an essential practice of the Ananda Margi faith, the Supreme Court overturned this decision and relied on the doctrine of precedent to hold that it was not an essential practice. Here, the essentiality question was decided by studying earlier judicial verdicts and not religious texts. Another reason provided was that the Ananda Margi faith had come into existence in 1955 and the tandava dance was adopted only in 1966, therefore as the faith had existed without the practice, it couldn’t be accepted as an essential feature of the faith.

Read | We thank God for fulfilling our wishes: Desai at Haji Ali

The “essentiality test” was invoked in the Ismail Faruqui case where the apex court was dealing with the issue of the State acquiring the land on which the Babri masjid stood. One of the legal issues before the court was whether the State had the power to acquire a mosque. Instead of settling the issue in favour of the State by relying on the principle of eminent domain, the court went into the question of whether praying in the mosque is an essential practice of Islam. The court held that while the offering of prayers is an essential practice, the offering of such prayers in the mosque is not.

The essential practices test has proved to be the biggest deterrent to freedom of religion in India. It does not have any constitutional basis. The Constitution of India provides protection to religion as a whole subject to restrictions and not just to essential elements of a religion.

Faizan Mustafa is vice-chancellor NALSAR University of Law, Hyderabad

The views expressed are personal