Religious claims cannot prevail over public interest

The conflict between religion and public life quite often comes to the fore with judicial institutions, law enforcement agencies and people, claiming to represent religion, take mutually contradictory positions.

Andhra Pradesh was a witness to a controversy over eviction of temples and other unauthorised religious structures for road-widening. In Hyderabad, the ongoing tussle over the height of Ganesh idols refuses to die down with the Ganesh Utsava Committee turning down the advice of officials to limit the height of the idols.

Issue being sensitive that involves the religious sentiments of the people, authorities justifiably are taking a persuasive course. Now, even the High Court advised the organisers to display self-restraint and limit the height of the idols to avoid public inconvenience.

Of course, it’s only a suggestion but not an order. The court has rightly opined that there is no link between the height of an idol and the religious sentiments. No religious scripture prescribes the height of an idol to this extent.

When there is no laid-down principle in the scripture, how can the proposal to limit the height of the idol be hurting the religious sentiments? It may hurt the sentiments of a few organisers. It’s wrong to attribute this to the entire faith.

Religion is a faith, Religion is a belief. Religion is the self-imposed dharma. But, it cannot degenerate into a dogma. Religion is a wonderful institution to purify our minds. It cannot be allowed to pollute the public discourse. Religion cannot be exhibitionism. Competitive populism cannot be allowed to interpret the religious protocols. The mankind needs the message of true religion.

At a time when religion and public life are overlapping, understanding of the true message of religion is of greatest importance. Hinduism as a religion allows for flexibility in approach. Ascribing fixed code to it is unbecoming of the true character of Hindu religion and faith. Limiting the height of the idol cannot therefore be irreligious or against the sentiments of Hindu religion.

The Supreme Court of India in a significant judgement in Adi Saiva Sivachariyargal Nala Sangam & ors. Versus The Government of Tamil Nadu & Anr. summarises the true character of Hinduism. It said, “…Hinduism, as a religion, incorporates all forms of belief without mandating the selection or elimination of any one single belief. It is a religion that has no single founder; no single scripture and no single set of teachings. It is the collective wisdom and inspiration of the centuries that Hinduism seeks to preach and propagate…”

The argument that restrictions on the height of the idols infringe upon religious freedom does not stand scrutiny of the Constitution and the law of the land. Precisely for this reason, the High Court did not agree with the argument that imposing restrictions on the height of the idol would hurt the religious sentiments.

The apex court in the above said judgment itself clarified the position of law on such matters which are applicable to the point in discussion here. The court observed, “…while the right to freedom of religion and to manage the religious affairs of any denomination is undoubtedly a fundamental right, the same is subject to public order, morality and health and further that the inclusion of such rights in the Constitution will not prevent the State from acting in an appropriate manner, in the larger public interest…”

It needs to be emphasised that wide expanse of beliefs, thoughts and forms of worship that Hinduism encompasses without any divergence or friction within itself or amongst its adherents. The often quoted argument is that courts have no role in religious matters as Article 26 of the Indian Constitution provides for religious freedom.

On this ground itself, the Ganesh Utsava Committee rejects the advice given by both government and judiciary to restrict the height of the idols. But, the Ecclesiastical jurisprudence rejects this argument. The Supreme Court repeatedly held the view that a religious institution has freedom to manage its own affairs in matters of religion.

But this right guaranteed under Article 26 of the Constitution of India cannot be either absolute or arbitrary. Such freedom is confined to essential elements of a religious practice as stated by the apex court judgments in cases like Sri Venkataramana Devaru and Others Vs. State of Mysore and Others and Durgah Committee, Ajmer and another Vs. Syed Hussain Ali and others.

Justice Gajendragadkar was of the view, “……. that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 26.

Unless such practices are found to constitute an essential and integral part of a religion, the claim for the protection under Article 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.” The apex court has explicitly reiterated the Court’s power to decide on what constitutes an essential religious practice.

The height of an idol therefore cannot be construed as essential part of the Hindu religion. Based on this understanding itself, the High Court perhaps has given the suggestion but chose not to issue an order keeping in view the sensitive nature of the question.

But, this is not to argue that secular institutions like courts or government can always interfere in religious affairs. The observations made in the minority view in the Supreme Court judgement in Commissioner of Police and Others Vs. Acharya Jagadishwarananda Avadhuta and Another are worth mentioning here.

The para 57 of the said view reads as follows: “The exercise of the freedom to act and practise in pursuance of religious beliefs is as much important as the freedom of believing in a religion…. there are some forms of practicing the religion by outward actions which are as much part of religion as the faith itself.

The freedom to act and practise can be subject to regulations in our Constitution, subject to public order, health and morality and to other provisions in Part III of the Constitution. However, in every case the power of regulation must be so exercised with the consciousness that the subject of regulation is the fundamental right of religion, and as not to unduly infringe the protection given by the Constitution.

Further, in the exercise of the power to regulate, the authorities cannot sit in judgement over the professed views of the adherents of the religion and to determine whether the practice is warranted by the religion or not. That is not their function. “

The High Court in its right wisdom chose not to enforce the restriction on the height of the idols but has expressed its opinion. The religious bodies concerned should give importance to the judicial observations, though not an order.

The freedom of religion under Articles 25 and 26 of the Constitution is not only confined to beliefs but extends to religious practices and hardly requires reiteration. However, Right of belief and practice is guaranteed by Article 25 subject to public order, morality and health and other provisions of Part III of the Constitution.

Public order will be in jeopardy if in a diverse religious society, various religious bodies give unlimited interpretation of the religious freedom enshrined in the Constitution of India. Therefore, the non-essential or secular practices of a religious belief like the size or the height or the nature of making the idols cannot be defended on the ground of constitutionally sanctioned religious freedom.

As Pratap Bhanu Mehta points out in ‘Passion and Constraint: Courts and the Regulation of Religious Meaning’ in Rajeev Bhargava’s (ed) ‘Politics and Ethics of the Indian Constitution (Oxford University Press, 2008) , in most constitutional settings , courts “have to determine whether or not a policy places a substantial burden on the free exercise of religion.

The administration imposing restrictions on the height of the Ganesh idols in no way inflicts ‘substantial burden’ on the free exercise of religion. The wording of Articles 25 and 26 (the provisions related to religious freedom), said Marc Galanter(Law and Society in Modern India, Oxford, 1997), establishes primacy of public interest over religious claims and provides a wide scope for governmentally sponsored reforms.