Religion: A Fundamental Right or Right Only to The Fundamentals?

The Judiciary in India has yet again engaged in their assumed duty – in the matter of religious freedom – of curtailing practices. The ancient and uninterrupted practice of Pashubali or sacrifice of animals in the temples of Tripura has now been banned. This decision has been based on the principle of ‘Essential Practices Test’ (EPT), according to which interpretation by the Indian Judiciary, the practise of only the core tenets of any religion is guaranteed as a Fundamental Right in our Constitution. Any thing that falls outside of this core is subject to the review and restriction of the State.

Such a principle, of course, affects Hindu dharma more than any other religion in India. Given its natural diversity and variety, there are no fixed set of ‘core practices’ in the Hindu dharma. So by the very definition most of our practices will fail the essential practices test.

In effect, the ‘Fundamental Right to Religious Practice’ has become the ‘Right to Fundamental Religious Practice’ for Hindus.

There have been a number of excellent posts analyzing the religious angle of this issue. These posts have highlighted how such an EPT is harmful for Hinduism. One such recent article can be read here.

In this particular post, I would like to highlight a few other reasons why the EPT is incompatible with our Constitution.

Constraints on the State and Freedom for the people

The very purpose of Fundamental Rights, or Bill of Rights, in any Constitution is to act as a check on the powers of the State from taking away the liberty and freedom of the people. Therefore, while every Constitution does provide some authority to its Government to restrict rights (since no right can be absolute), the primary need for encoding the rights are to ensure that the State gets to exercise its power of restriction very sparsely and under unavoidable circumstances.

In other words, Fundamental Rights are restrictions on the State and not on the people.

The Sapru Committee, appointed by the All-Parties Conference in 1945 prior to the formation of the Constituent Assembly, captured this principle very well in its report. Referring to the purpose of Fundamental Rights, it said that they were necessary not only as:

“…assurances and guarantees to the minorities but also for prescribing a standard of conduct for the legislatures, governments and the courts..”

Therefore, it is not the people who possess the freedom to practice only essential religious practices but the State that has the power to impose only essential restrictions!

Fundamental by definition means Abundant

If a State does not intend to guarantee its citizens a particular right to the fullest possible extent, then it is meaningless to consider it as a Fundamental Right. The purpose of Fundamental Rights is not to provide a notional grant of opportunity to exercise the right. By definition it means that the right can be exercised to the fullest possible extent and only under extenuating circumstances can the State restrict a right.

In his note on the Fundamental Rights submitted to the Constituent Assembly in December 1946, Sri K T Shah delves on this topic very descriptively. Talking about the purpose of Fundamental Rights, he says:

It also means the fullest opportunity to develop one’s personality and potentiality to the highest possible in the existing stage of our civilization”

To illustrate his definition, he expands on two Fundamental Rights that were in the works in the Draft Constitution. Speaking about the Right to Life, he says:

Life, that is to the say, the mere right to exist, will have little value, if it is to be bereft of any opportunity to develop or bring out what is in every man or woman. It follows inevitably that the right to live is the right to live decently as a member of a civilized society and have all the freedom and advantages that would go to make life agreeable, and living assured in a reasonable standard of comfort and decency”

Again, while explaining the Fundamental Right to Equality, he says:

Here also the term by itself is likely to be misconceived or interpreted unduly narrowly, if it is not added that equality is not merely equality of treatment before the established system of Law and Order but also of opportunity for self-expression or self-realization that may be inherent in every human being”

Therefore, just as Right to Life cannot be subjected to an ‘Essential Breathing Test’ or the Right to Freedom of Speech cannot be subjected to an ‘Essential Utterance Test’ so also the Right to Religion cannot be subjected to an ‘Essential Practices Test’.

Violation of the Promise in Article 25 itself

Article 25(1) in our Constitution says the following:

Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion

The solemn promise that the State makes to its citizens is “the right freely to profess, practise and propagate religion

In other words, the promise is to allow the right (a) freely to profess (b) freely to practise and (c) freely to propagate.

The existence of the word ‘freely’ in the Article must not be avoided from being noticed. The meaning of ‘freely’ is not just that the right shall not be controlled but that it shall also be allowed to the maximum extent.

Google defines ‘freely’ as ‘in copious or generous amounts’.

Cambridge dictionary defines ‘freely’ as ‘without being controlled or limited’

Merriam Webster defines ‘freely’ as ‘not strictly following a model, convention, or rule’

Collins dictionary says ‘Freely means many times or in large quantities’

Therefore, the concept of allowing only a small subset of ‘essential’ practices goes fundamentally(!) against the concept of ‘free practise of religion’ that is explicitly promised in our Constitution.

In summary, the concept of an “Essential Practices Test” for the Right to Freedom of Religion is not only a problem from a religious angle, but it is also incompatible with the concept of Fundamental Rights itself, as also violative of the explicit guarantee in our Constitution.

 

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