Fundamental Right to Religion in the Indian Context: Not So Fundamental?

On May 15, 2020, while disposing off a Public Interest Litigation (PIL) Allahabad High Court held that reciting azan through sound-amplifying devices is not integral to Islam and hence, not protected in terms of Art 25 of Constitution of India.[i] The petition was filed challenging the series of orders by the State Government restricting the recital of azan during COVID-19 lockdown, as arbitrary and unconstitutional. Article 25 in its first part guarantees freedom of conscience and right freely to profess, practice and propagate religion and the second part gives power to the state to make laws regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice. Further, Article 26 on the other hand provides for freedom to manage religious affairs. However, as it is known that no right is absolute in character, it is pertinent to note here that these guaranteed rights under Articles 25 and 26 are subjected to restrictions on the ground of public order, morality and health. The Apex Court in catena of cases has faced this dichotomy to balance the conflict in the position with respect to an individual’s right to religion on one hand and religious institution’s right to manage its own affairs on the other. The Courts, therefore, to resolve this issue came up with the Essential Religious Practice Test (ERP), in Shri Lakshmindra Thirtha Swamiar Case,[ii] the Court stated that only practices which are essential to a religion can get a constitutional protection, and what is “essential” will be decided on the tenets of the religion itself. From thereupon, the Court have further developed and applied the test in various cases which came to be decided within the pretext of Articles 25 and 26. The Court, hence, took it upon itself to decide what is essential and what is not, basically depending upon the facts and circumstances of the case in question, and there has been no looking back for the courts from thereon. The onus is on the institution/person claiming such right to prove that it is essential and integral to their religion.

In Church of God in India v. K.K.R Majestic,[iii] the Apex Court held that no religion or religious sect can claim that use of loudspeakers or similar instruments for prayer is an essential part of religion which is protected in terms of first part of Article 25. Heavily relying on these cases in form of precedents, the Allahabad High Court declared that though recital of azan is an essential and integral part of Islam but offering it through loudspeakers was not proven by the petitioners to be an essential and integral part and hence, constitutional protection cannot be extended.

The question which is to be pondered upon here is that ERP test being a judicially created tool is it necessary to apply that in all the cases which comes up under Articles 25 and 26. In the instant case, the restrictions were placed due to COVID-19 pandemic which necessitated the closure of all religious institutions and religious congregations. Isn’t it clear by plain reading of the text of the Constitution that restrictions can be put forth on right to religion on the grounds of public order, morality and health and the current situation well requires the administration to take all steps for ensuring that the virus doesn’t spread, hence, the restrictions very well fall under the grounds provided under Article 25 itself. It is to be duly noted that there have been various instances where the Courts did unnecessarily apply the ERP test when the matters could have been very well decided based on the Constitutional provision itself. This approach of the Courts also becomes problematic in the light of the fact that unnecessary intrusion into freedom of conscience and right to religion will virtually make this constitutionally protected right redundant. This poses a much greater and a debatable question to what extent the courts can and the judges enter into the sacred domain of religion. If not wary of the situation that might arise due to unnecessarily applying such tests the Courts may become a tool of oppression and arbitrariness.