No other culture on the planet has the variety of weaves that India has and ensuring that this variety coexists and makes a beautifully harmonious pattern is certainly not easy. The Indian Constitution has time and again taken up the daunting task of demarcating the secular domain from the religious one but most often than not, the Indian courts have been called upon to resolve various issues that arise due to the clash between religious rituals and human rights.
Even though the courts have tried to formulate standardized and clear-cut definitions of many notions such as ‘religion’, ‘custom’, ‘usage’, ‘ritual’ etc. in order to make them manageable within a legal context, yet litigation and discontent on these issues is unavoidable looking at the cultural diversity in India.
Time and again, the Indian courts have been called upon to ascertain what is ‘essential and integral’ in a religion and what is conversely ‘non essential’. The court’s decisions have been wide ranging and although different judgements may hold different opinions, most tend to view religion from an idealist perspective. A practice that finds no mention or text in the religious tenets is usually termed as ‘non-essential’ and even superstitious and therefore amenable to court’s reformist action.
As far as religion is concerned, the Preamble to the Indian Constitution ensures all citizens the liberty of “thought, expression, belief, faith and worship”; and Article 25 (1) stipulates that: 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, practice and propagate religion.
This individual character of religious freedom has also been developed over a period of time in the Indian courts of law. The Apex court has held in the Shirur-mutt case that “A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress.”
Thus it can be said that religious freedom extends far beyond the individual’s conscience and concerns public space however limited it may be by considerations of “public order, morality, and health”. Over a period of time, the courts have had to undertake the daunting task of defining the legal boundary between the religious and the secular through successive rulings in various cases, a boundary that has become both clear-cut and yet elusive with each successive ruling.
The constitution has placed upon the State - the duty of providing for social welfare or reform and as a consequence, religious freedom is subject to the other fundamental rights of an individual. As P.N. Bhagwati, Chief Justice of India from 1985 to 1986, stressed, “it was necessary to bring about social reforms with a view to lifting India out of medievalism, obscurantism, blind superstition and anti-social practices”.
For this, “the secular State had to perform this historic function of confining religion to its essential sphere,” and “the Indian Constitution had, therefore, to accord to the state power to interfere with freedom of religion”.
The courts have over a period of time protected an individual’s right to worship as a civil right however, such worship should not affect the right of other persons and has to be bona fide. There are various rituals that have been followed for centuries but have been banned by the courts being in contravention of the right of other persons.
The Punjab and Haryana High Court in Rattan Singh and ors. (1951) had to deal with a conflict between bareheaded devotees and covered-headed ones in a mandir which Lahore High Court had previously (1936) declared not to be a Sikh Gurdwara. Bareheaded devotees complained they were prevented by the covered-headed ones from entering the mandir and worshipping there. The High Court, quoting precedents, underlined the general principle according to which the right to worship a deity according to one’s own belief is of a civil nature. The judge decided in favor of the plaintiffs because, according to him, coming bareheaded could not be seen as affecting others’ right to worship.
The Allahabad High Court too in Syed Farzand Ali (1980) ruled that Muslims of the Ahl-i-Hadith tradition had the right to speak the word “Amen” aloud in response to the prayer leader in mosques of the Mathura district without being hindered by Muslims of the Hanafi tradition who tried to oppose this practice.
These decisions prove that the margin between legitimately deciding on religious issues vis-à-vis unduly interfering in religious matters is extremely narrow and requires careful consideration.
In a recent case, the police registered a complaint against Sree Devi Vilasam Hindu Matha Convention for allegedly conducting a ritual called ‘Chooral Muriyal’ involving children in connection with the Kumbha Bharani festival at the Chettikulangara Devi temple near Mavelikara. In this ritual, young boys are adopted and either sides of their midriffs are pierced and gold strings passed through their piercings. One end of the thread is tied around the neck. Later, children with painted faces are taken in a procession to the temple and are made to dance. In the end, gold threads are pulled out and offered to the deity along with drops of blood on it, in a symbolic sacrifice.This practice was banned by the Kerala State Commission for Protection of Child Rights in 2016 and the Kerala High Court observed that children should not be subjected to any form of torture in the name of such ceremonies. When the ceremony was held despite the ban being in place, the police were forced to interfere and register a case.
The most discussed of all was probably the “Sabrimala Temple” case wherein the Sabrimala Temple in Kerala barred women of "menstruating age" - defined as between the ages of 10 and 50 - from entering the temple.
Menstruating women were neither allowed to participate in religious rituals nor enter temples, as they were considered to be "unclean". The Supreme Court in its ruling said that women can no longer be barred from entering the Sabarimala temple which is considered to be one of the holiest temples for Hindus. The ruling came after a petition argued the custom to be violative of gender equality. While most Hindu temples allow women to enter as long as they are not menstruating, the Sabarimala temple was unusual in that it was one of a few temples that did not allow women in the broad age group of 10-50 years of age to enter at all. In the judgment, the then Chief Justice Dipak Misra went on to say that "religion is for one dignity and identity", he also added that "the right to practise religion is available to both men and women".
Strangely enough, Indu Malhotra, the only woman judge on the bench hearing the case, dissented with the majority verdict saying that "Issues of deep religious sentiments should not be ordinarily interfered by the court... Notions of rationality cannot be invoked in matters of religion,"
This judgement did not come as a surprise as in the previous two years, courts had also unlocked the gates of Shani Shingnapur temple and Haji Ali mosque for women. The then Chief Justice Dipak Misrahad also previously questioned the validity of the practice, saying that since God does not discriminate between genders, who are we to do that? This judgement was a sharp rebuke to the Sabarimala temple chief who had said that he would allow women to enter the shrine only after a scanner was invented to detect if they were "pure"- meaning they weren't menstruating.
The latest in this line of controversies is the ban order imposed by the administration against a mutt ritual in Mayiladuthurai near Trichywhich has triggered a controversy, with rationalists and Hindutva groups taking positions on either side. The ‘ Pattina Pravesam’ is a ritual that is held by the Dharmapuram mutt wherein the devotees carry the dharmapuram adheenam or the chief of the mutt, on a silver palanquin. This ritual was protested against by K Veeramani, president of the Dravidar Kazhagam (DK) party and the police was asked to stop the ritual that was scheduled to be held on May 22.
The ritual has been called – “a violation of human rights” and questions have been raised on why somebody had to be carried on a palanquin. Activists and rationalists have sought for the practice to be abolished like in the case of hand-pulled rickshaws. The. Controversy seems to be gaining new force with the chief of another mutt, the Madurai Adheenam, Shri La Shri Harihara Shri Ghanasammantha DesikaParamacharya Swamigal, reportedly urging Chief Minister M K Stalin to lift the ban and allow the centuries-old tradition to be continued else he shall shoulder the palanquin himself at Dharmapuram.
India is known to be the cradle of the human race, the birth place of human speech, the mother of history, the grandmother of legend, and the great-grandmother of tradition. It has its own rich traditions and rituals which in turn were fantastic devices created with wisdom. Over time, they may have become tools for exploitation for some people. But we must learn to see what is the corruption in this, eliminate that and use the technique in order to get the best of both worlds.
All said and done, it is undeniable that India with its diverse culture and a multitude of religions can only flourish if Indians learn to be tolerant. Tolerance is not only a religious but also a civic value but Indians in a peculiar show of dichotomy, not only express religious tolerance, they also show a consistent preference for keeping their religious communities in segregated spheres, in other words, ‘ THEY LIVE TOGETHER SEPARATELY!’