RESEARCH PAPER: Essential Practices Doctrine- When Court became theologians, AUTHOR: -Ivan Thakur,

While separation of Church and State happened organically especially after the Nepolonic War in 19th Century and Constitution of the US that stands firmly on it , the Religion falls on the Personal/Private Sphere. However the Political Conception of State as well nation cannot ignore it, especially nation and it’s interaction with religion which precedes the nation. The Country like India which do not experience this organically and this ‘modern’ legal system interaction with the ‘sentiment’ is what this Research paper aim to discuss.

RESEARCH PAPER

-Ivan Thakur,

11/5/202610 min read

Abstract

Introduction

Genesis of Essential Practice doctrine starts with Madras Religious Endowment Act and it’s involvement in Temple’s practice, certain denominational Temples and Durgah had it’s own history which could deemed discriminatory on constitutional lenses hence unlike American courts Indian courts dived into such matter they look into religious text history popular religion and Higher religion on this matter often Justice Mukherjea and other if the ritual or traditions comprises religion or other hindu similar faiths are different or not, for example Aurobindo’s Followers and others, it examine secular aspect of faith (Jagannadhadas,j) from others whether denomination can decide which ceremony is essential for their Temple; It is often said the State interferences in Religious practices further decays it, As per Head scarf for Muslim women essential practice is often contradicted by Two sate judiciary there is contradiction in interpretation of Religious text; Since some form Religious interpretation we borrowed from colonial history by default Anglizing the interpretation of texts. Countries like France , US strictly follow secularism and legal framework which permit the religious practice as long as it do not violate law of the land , French calls it ‘Lacite’. So this Research paper aims to show this contestation between Religion with the notion of ‘Nation’ and ‘ Right’ as well as contesting religious demand in diverse country like India. What faultline the ‘Indian’ experience faces with Anglican code and colonial history. Many critique Essential Practices Doctrine as an example of Judicial Over-reach Sanskriti Prakash is one of such scholar that Judiciary is creating ‘secularism’ that is not in character of Europe but Indian Judge’s creation( SANTHĀRĀ/SALLEKHANĀ AND THE INDIAN LAW: A 6 CRITIQUE OF THE ESSENTIAL RELIGIOUS PRACTICE TEST).

Review of Literature & Analysis

Bijoye Emmanuel v State of Kerela

The central Legal Issue of this case was whether the expulsion of children from school for refusing to sing the national anthem, while standing respectfully during its recitation violated their fundamental right enshrined in Part 3 of the Constitution ‘right to freedom of religion & conscience which are guaranteed with the limitation - the operation of any existing law or prevent the State from making any law—(a)regulating or restricting any economic, financial, political or other secular activity which maybe associated with religious practice;(b)providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

The court ruled in the favour of the children provided they belonged to the Jehovah Witness which prohibits them enchanting anything other than hymns to the God, the Court relied on Adelaide Company of Jehovah’s Witness v. Commonwealth, (1943) 67 C.L.R 116  noted that the “Jehovah’s Witnesses are an association of persons loosely organized throughout Australia and elsewhere who regard literal interpretation of the Bible as fundamental to proper religious beliefs.” the Court further discussed the applicability of Section 2 of the Prevention of Insults to National Honour Act of 1971, under which: “Whoever, intentionally prevents the singing of the National Anthem or causes disturbance to any assembly engaged in such singing shall be punished with imprisonment for a term which extend to three years or with find, or with both. The Court held that standing up silently “clearly does not either prevent the singing of the National Anthem or cause disturbance to an assembly engaged in such singing.

Article 19(1)(a) which gives Right to Freedom of Speech & Expression and Prevention of Insults to National Honour Act 1971 and Flag code of India Act 2002 in spirit prohibit the disrespect to National Flag even if it put ‘reasonable restriction’ to said Right unlike US Where the landmark judgement Texas v Johnson (1989) where the legal question was whether flag burning constitute ‘symbolic speech’ under the US first Amendment however in Indian context the Fundamental Right bestowed under Article 25 gave Religious group with radical interpretation of Bible – Right not to utter the National Anthem considering they do not outlandishly disrespect the National emblem.

Hanif Quereshi V State of Bihar

Cow Slaughtering often viewed in Communal lines not in economic and occupational lines. Many often suggest it is the question of Religion differences between Hindu and muslim however issue goes back as long before in 18th century where Britisher and Muslim involved in trade and Consumption sometimes for Festivities and trade, Many reformist Hindu organisation like Arya Samaj sought to do something about it with it’s own Tribunals , Since the outcome was read in religious line ‘ essential practice doctrine’ was used but courts do not sought answer in Caste lines often said legislation of banning cow slaughter violates article 14 19 25 31 of the constitution but the directive principle of art 48 and Hindu Sentimentality overpowered the said clauses and court find it reasonable restriction on the occupation of Ajlaf muslims.

Mohd. Hanif Quareshi & Others vs The State Of Bihar can be viewed as a churning point in discourse of slaughtering of cattle goes however it should be least understood that it is cluster of individual cases mostly from Quareshi’s or their closer relative Kasab(in some state) which could be viewed as contested question of caste but court took the view in lens of religion while the petitioners sought the court claiming more than religion it is economic issue. The court followed their essential practice doctrine to investigate whether Bakr Id slaughtering of cow is an ‘essential practice’ in lens of faith. Since the issue in-hand deals with many different themes we will start by briefly addressing them whether it is a question of caste faith pre-constitutional history of slaughtering of cow and it’s relation with constitution how it is address by Judges

Brief Colonial History & Context

Britishers were themselves were ardent eaters of beef,one of the main reason for communal strife even then was the festival of Bakr-Id where Arabic Bakr stood for cow symbolising Abraham willingness to sacrifice his son for God since cow were relatively cheaper as compared to other meats even britisher were buyer in huge number of the same hence occupation for many in muslim community.( In 1893 alone, a hundred people were killed in communal violence over cow slaughter in towns as far apart as Junagadh, Oudh, and Rangoon) Indian ruler who allied with British during this period often urge them not to slaughter cow in their territory but Britisher called it “impossible requirement. ” Educated Hindus who wanted to reform the faith from it’s dogma and ‘backwardness’ as compared to European counterparts often themselves engaged in consumption of beef publicly. In 1881 Arya Samaj ‘A Hindu Reform Movement’ created ‘Gorakshni Sabha’ a cow protection society it’s founder Swami Dayanand Saraswati authored a pamphlet ‘Gaukarunanidi’ presented the action plan for prevention of cow slaughtering through local societies, those who broke the conduct would be sanctioned by the tribunal which made anything related to sacrifice or trade of beef cognizable offence over period of time it start imitating state court trial for criminal offence where instead of crime against the queen it wore the clothing of Gau- Maharani few notable cases where penalize by fine social ostracization for period of time alienation from community ceremonies. After the mutiny the interception of colonial authority over religious matter and their reformation of faith were diminished since there were many villages where the population of Hindus were dominant as compared to Muslim, so for the matter of Cow slaughtering many litigants from Muslim sides wage their community rights for being colonial subjects. The colonial Government sought to establish claims by virtue of community practices during early days of litigation it was not as homogenize as some villager had right to slaughter while neighbouring and other don’t have similar customary right(it was based on demographics) but the court held while recognizing general right to slaughter not for riotous intent or that which creates animosity. Even in individual cases courts have bypasses community practices with legal rights of property questions the limiting of right if they offended the sensibilities concluding they have right as far as they do not create nuisance ( a legal category of Private Right) courts do not view it in lens of religious sentiment of Hindus.

‘We do not mean that all the people of India should live under the same law: far from it. Our

principle is simply this—uniformity where you can have it—diversity where you must have

it—but in all cases certainty’

-debates in 1833 in the House of Commons over the renewal of the East India Company’s

Charter

Colonial judges already foreshadowed during colonial time ‘Essential Practice Doctrine’ by virtue of preferences of codified Brahamanical law over popular and customary law.

Founder of Asiatic Society and Orientalist mainly of British origin like William Jones (1746–94) are amongst one of the many names according to them India had fixed law codes that are given by law giver however it was corrupted by interpretation and commentaries . Macaulay’s 1835 ‘Minute on Education’ was inspired by utilitarian outlook rather than orientalist he preferred English rather than Sanskrit or Persian as they were pre-occupied with Generality uniformity and certainity preponderance of brahmanical or ‘high-culture classic texts over parochial customar village laws often these codified law were in disharmony over Jurisprudential technique of local legal experts.Over the time Case law in colonial courts which resulted in English Common law infiltration in this domain hence forming precedence, the English judges used to apply the principles of ‘justice, equity, and good conscience. The dominance of precedents and high-culture texts meant that local customs and popular religion were continually undermined. After the Mutiny of 1857 before that British continually rationalize and reforming Hindu practice. Since the British’s principle of ‘justice, equity, and good conscience’ was not satisfying the Hindu especially where slaughtering of cow is concerned the political movement towards representative from the subject often in political agitation it was difficult to distinguish between those who are against the cow slaughtering and other need even if the Congress direct demand never included Ban on cow slaughter for an instance several Congressmen were member of Cow Protection Society and meeting held for the Gorakshni Sabha doubled as a forum for National Congress propaganda and vice versa. National congress petition on pretext of banning cow slaughter in 1882 there were attempt within national congress for monster petition for the same it attracted 100000’s of signature especially in Rajasthan.

CONSTITUENT ASSEMBLY AND THEREAFTER

During colonial period slaughtering of cows was allowed on the grounds such as demography or community practice later it was considered the legal right whenever the opposing community bring upon something against slaughtering cows First, they could make a claim of religious freedom, which was protected under Queen Victoria’s proclamation of 1858. Second, they could argue the common- law right to property, which guaranteed that a man could enjoy his property provided the action caused no nuisance to his neighbour. Finally, they could argue that cow killing was a customary practice protected by the promises of the British Crown. To meet these ends, they could rely on the newly enacted Civil Procedure Code and get the court to declare his particular right and thus protect it from encroachment. So there was more or less safeguard that protect slaughtering of cows. Cow protection found little traction during independent period thinker Gandhi revered cows but against enforcing it to Muslims instead he believed in harmony and good will between the community the way it was observed in Ghazipur in 1908, representatives of the local Hindus and Muslims signed a pact in which the Hindus agreed to stop playing musical instruments during festivals to avoid offending Muslims, and the Muslims agreed that there would be no dispute about the slaughter of cows. Several Muslims were persuaded to put their thumbprints on a document that stated they would not create any quarrel, disturbance, or litigation in connection with the sacrifice of cows and during non- cooperation movement Hindus were encouraged to support Muslims on the caliphate question while Muslims were asked to refrain from cow slaughter. Law couldn’t be mobilize to do that as it would result in more disharmony same way as Muslim personal law couldn’t be imposed on Hindu; Unlike colonial courts Gandhi do viewed it as religious issue not a ‘Nuisance’. Gorakshni Sabha Lobby during constituent assembly debate insisted on including it as a amendment in part 3 however it was included in part 4 one of the contending issue whether Part 3 includes Animal? Since the aim was to established secular constitution so it wore the clothes of overall nutrition of population standard of living, the improvement of agriculture along scientific and modern lines, the improvement of cattle breeds, and the ban on cow slaughter, even for near future of post-colonial India were it aimed to become self- reliant economic argument by Thakur Das Bhargava, it was not a new strategy even during colonial ecotimes Gau Rakshak used to distribute the pamphlet stating the same. After the official commencement of Constitution Nehru reluctance to pursue Gau Raksha at the Centre citing it was a provincial domain hence the local population representative has a say ,since the religious argument couldn’t withstand as the contrary religious claims balance it out National culture argument which distinguished it from colonial past was pursued. Nehru reluctance to pursue it in centre citing animal husbandry falls under State list in art 246 and national banned would be counter productive as aging and economically unprofitable cattle would be expensive to maintain would reduce the quality of breed and damage agriculture land. Nehru viewed it in eye of economic value of cattle, looking at art 48 where the economic agricultural land value and quality of breed was mentioned not religious viewpoint or Cow as a symbol of National Culture.

Faultline between Right to Die with Dignity and Santhara

In Nikhil Soni case which challenges the ritual of Santhara following the vow of Sallekhana ( a Jain Practice) is violation section 309 of IPC ( a section which criminalised the suicide which was decriminalise following BNS in 2023) and abetment to suicide under section 306 of IPC, here the Court approach with the similar concept like ‘Euthanasia’ but with the spiritual route shows faultline with the Anglo Saxon law which was transplanted from the Anglican tradition and Indian tradition where fast unto death was not crime against the God. It put moral dilemma for Courts should they be wearing black robe or the janu(a religious thread).

Conclusion

It is pertinent from the following cases that the ‘Law’ we acquired from colonizers and even the Constitution were inspired by the European struggle fell short when it applies to India especially of religious character, being the young country the conflict between ‘Nation’ and ‘Religion’ as seen in Bijoy Emmanuel case or the right to trade and butchering of ‘holy cow’ for mean time Court has strike the right chord balancing the religious sentiments and law of land, however Nikhil Soni case which is still pending in Supreme Court made this ‘harmony’ a conflict.

REFERENCES

Kalpana Kannabiran. (2013). Tools of Justice. Routledge.

Rohit De. (2020). PEOPLE’S CONSTITUTION : the everyday life of law in the indian

republic. Princeton University Press.

Ronojoy Sen, The Doctrine of Essential Practices: The Judges Shape a Rational Hinduism in

Articles of Faith: Religion, Secularism, and the Indian Supreme Court,

Statutes, Constitutions & Treaties Constitution of India, art. 21. Constitution of India, art. 25.

Sanskriti Prakash.SANTHĀRĀ/SALLEKHANĀ AND THE INDIAN LAW: A CRITIQUE OF THE ESSENTIAL RELIGIOUS PRACTICE TEST , 2022.

Dr. Kumari Bharti. Right to religious Die in India’s Jain concept Sallekhana.

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