[Answered] How far is state intervention in the cultural space of citizens justified? Discuss in the light of recent judicial pronouncements.

Recent interventions of Courts in religions and cultures spheres

In the most recent judgement SC uphold the Bombay High Court’s decision on Dahi Handi ritual.

Bombay HC had ruled previously that youth below 18 years of age cannot participate in the Dahi Handi ritual, part of the Janmashtami festival, in Maharashtra and the height of the human pyramid for it cannot exceed 20 feet.

In another judgement Supreme Court declined three petitions filed by private individuals to review its May 7, 2014 judgment banning jallikattu (bull-taming sport) as an inherently cruel act.

Constitutional provisions related to religious matters:-

Article 25(1) guarantees the right to freedom of conscience, and the freedom to profess, practice and propagate religion.

However, Article 25(2)(a) allows the State to make laws “regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.” And Article 25(2)(a) says that State can take measures to throw open Hindu religious institutions of public character to all classes and sections of Hindus

Article 26(b) guarantees the right of religious denominations to manage their own affairs in matters of religion.

And Article 26(d) allows the denomination to administer property in accordance with law (i.e., subordinating the right to manage property to State-made law).

Article 25(2)(a) and Article 26(d) makes these rights subject to state interventions in certain conditions and it becomes very difficult to interpret that what is included in the rights and what is subject to state intervention.

So to solve this issue Courts have developed two broad doctrinal tools:

  1. A distinction between the religious and the secular,

Article 25(2)(a) provides three illustrations of the secular – the economic, the financial, and the political. 26(d) does something similar with the administration of property. But still there is too much scope for conflict as constitution has provided no further guidance, it is where the role of court comes. Ultimately, this is a question that the Courts must decide.

  1. And the “essential religious practices” test

An essential practise for the religion would be any practise without which the substratum of the religion would fail, any other activity will not be essential religious practise.

There are certain exceptions which are given in the Constitution itself like economic, political, and financial.

While holding that the state cannot use the reform clause to “reform a religion out of existence”, it has nonetheless held that aspects beyond essential practices have no protection from state intervention.

Rationale of intervention

  • The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death.
  • During the debates in the Constituent Assembly, some of the members were in the favor of giving wide, interventionist powers to the state on the ground of the deep and pervasive role that religion played in the lives of Indians.
  • Hence there was need  to limit the definition of religion in such a manner that scope of religion shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious.
  • To resolve this issue, SC uphold that the state cannot use the reform clause to “reform a religion out of existence”, it has nonetheless held that aspects beyond essential practices have no protection from state intervention.

Criticisms

  • In determining what constitutes an “essential religious practice”, the Court has failed to lay down a set of consistent principles.
  • The essential religious practices test is an entirely arbitrary doctrine
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