The Indian Constitution protects religion, but not every practice done in the name of religion. Discuss.

We ought to strive to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious. This thought found its constitutional expression through a carefully calibrated framework — one that grants religious freedom generously while embedding within it the conditions for its own limitation.

Constitution protects religion (the scope of religious freedom)

• Art. 25(1): individual right (non citizens also): Covers: beliefs, doctrines, rituals, ceremonies, forms of worship, modes of religious expression
• Subjects: public order, morality, health, and other Fundamental Rights — these are the constitutional conditions on protection Art. 26: collective/denominational right: Every religious denomination has the right to:
  • Establish and maintain religious and charitable institutions — Art. 26(a)
  • Manage its own affairs in matters of religion — Art. 26(b) Arts. 27 and 28: (protects religions from state monopoly over taxation and education)
  • Art. 27: no compulsory state funding of any particular religion — state
  • Art. 28: no religious instruction in wholly state-funded educational neutrality in financial support institutions — secularism in public education

Arts. 30 — minority rights:

• Art. 30: minority communities' right to establish and administer educational institutions — protected from discriminatory state treatment in granting aid But, Constitution does not protects every practice done in the name of religion
• Art. 25(2)(a) — secular activities regulation:
  • State may regulate or restrict any economic, financial, political, or other
    • Example: secular activity associated with religious practice temple entry fees, management of temple funds, administration of temple property — secular in character even if associated with religion; state can regulate
• Art. 25(2)(b): social welfare and reform enabled through constitution:
  • State may provide for social welfare and reform or throw open Hindu
  • abolishing temple entry restrictions, throwing open public temples to religious institutions of public character to all classes of Hindus Dalits, outlawing sati, prohibiting dowry — all done through legislation backed by Art. 25(2)(b)
• Art. 26(b) : anage its own affairs in matters of religion — Art. 26(b)
  • "Matters of religion" in Art. 26(b) = includes not only beliefs but all practices and rites regarded as essential and integral to the religion (Shirur Mutt, 1954) Judicial role in refusing to protect every practice in the name of religion: (Essential Religious Practices Doctrine)
• Only practices that are essential and integral to a religion are protected under Arts. 25-26 — non-essential practices can be regulated or reformed by the state (Shirur math case)
• How ERP is determined:
• The court examines: religious texts, historical practice, theological scholarship, community consensus

Important reforms because of Judicial interventions:

• Entry of women — Haji Ali Dargah (2016)
• Entry of women — Shani Shingnapur (2016)
• Sabarimala — Indian Young Lawyers Association v. State of Kerala (2018)
• Triple talaq — Shayara Bano v. Union of India (2017) The Supreme Court's formulation in Navtej Singh Johar "constitutional morality must prevail over social morality" is the governing principle that ties together the entire edifice of Arts. 25-26 jurisprudence. Applied to religion, it means that the spiritual core of faith is protected while the social practices that have gathered around it over centuries are subject to constitutional scrutiny.