Religious Freedom, Reform, and Secularism

In this essay, we discuss Article 25 of the Indian Constitution and focus particularly on clause 25(2)(b), which we will call the reform clause, which allows the Indian state to enact social reforms in ways that contradict sincerely held religious beliefs. We also discuss the question of whether the reform clause and the right to religious freedom can coexist.

I must start by noting that we will almost completely refrain from discussing the Court, which has a truly incredible role in this area of the law. The Court deserves a separate essay about different types of religious disputes and how courts deal with them, as well as discuss criticisms of the essential religious practices test.

Disclaimer: I am not an expert in this field. I have written an eight thousand word journal article for the Indian Law Review named 'Inessential Practices: charting a non-normative future for Indian religion jurisprudence' (co-authored with Sheerene Mohammed; If you are unable to find a copy online, please feel free to email me.) I will necessarily simplify and omit important discussions in the course of this essay, for readability and brevity. My more detailed views can be found in the journal article.

Disclaimer the second: This is intended to be a descriptive account, and except where I say otherwise, I don't offer opinions. As always, these views are mine and not those of my employer. For errors, if any, mea culpa, mea culpa, mea maxima culpa.

The right to religious freedom

There is legislation, and then there are super legislations (constitutions) that restrict what legislation can do. In democracies, constitutional rights restrict even a powerful parliamentary majority from running roughshod over certain fundamental rights. In the Constitution of India, Part III contains the 'fundamental rights'.

A common right in liberal democracies is the right to religious freedom. In the Indian constitution, this right is found in Article 25. It says, subject to public order, morality, health, and other fundamental rights, that all persons have the right to believe in and the freedom to profess, practice, and propagate their religion [Article 25(1)]. And that's just the beginning, Article 26 gives religious denominations 'or any section thereof' the right to 'manage their own affairs in matters of religion.'

Let's just look at the exceptions to Article 25 for a moment. According to the constitutional text, the only grounds on which your right to freedom of religion can be limited are public order, morality, health, and other fundamental rights. You can make a speech propagating your religion, and that's fine, but if your speech contains a call to overthrow the state and establish a theocracy, you can bet the state will have a problem with that because it literally destroys public order. You can practise your religion, but if your hypothetical religion involves watching pornography, then the state will waltz in to defend conventional morality. Your religion might prescribe consuming the bark of a tree that happens to be carcinogenic, but that doesn't stop the state from banning the sale of carcinogenic bark on grounds of health. And now, your religion might require that you prevent your children from getting an education at all, but the state will pop back in and be like, hmm, we have this thing called Article 21A, which prescribes universal and compulsory education, and we're going to have to seriously object to your religious practice on the grounds that it violates your kid's fundamental rights. 

The reform clause

There are actually two more exceptions in the text of the Constitution, found in clause (2) of Article 25. First, the right to religious freedom doesn't prohibit the state from 'regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.' Let's say you're conducting a religious ritual, for which you require an open flame. That doesn't mean that the state doesn't have the ability to require you to abide by fire safety regulations or to make you pay taxes for the lamps and the matches. Those are 'secular' and 'financial' activities that just happen to be 'associated' with religious practice. 

Second, the right doesn't prevent the State from '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.' In this essay, we will call this the 'reform' clause and spend the rest of this essay talking about it. We will seriously discuss how a purportedly secular state gets into the business of 'throwing open Hindu religious institutions of a public character to all classes and sections of Hindus.' 

We'll get into the 'Hindu' question in a moment, but let's just start by trying to make sense of what it means to have a document where one sentence talks about protecting religious freedom and the next sentence starts by letting the state change the rules for entry into a religious institution.

The truth is that the Indian state has always been pretty close to religion, which plays a "thick" role in public life. Since the ancient kingships to the present day, states in the Indian subcontinent have played an large role in funding and regulating religious institutions. Hindu rulers built and supervised temples. The Mughal theologian had control over vast patronage in the form of grants, which were often given to temples. And when the East India Company came in, they followed in the footsteps of the princes they had displaced, acting as a direct patron and administrator of religious institutions. Many, many religious institutions in India would not be maintained if the money did not come out of state funds. [Note: these are explanations, not justifications]

And then Independence happened and the brand new Indian state was composed of territories taken from the Nizams of Hyderabad, the Maharaja of Kashmir, the Travancore royal family, and other rulers of princely states, all of which funded and owned large religious institutions, primarily temples. And the new Indian state slid comfortably into their shoes. You see, when you have state machinery, and a new government takes over, you still need the machinery. We took over the civil service and the railways from the British, and we took over the funding of, and the ability to regulate religious institutions too. To offer one of many examples, this is why the Constitution (since the 1956 Amendment) contains Article 290A, which mandates funding to the tune of tens of lakhs from the consolidated funds of Tamil Nadu and Kerala to their temple boards. This is the Indian state honouring the commitments they took over from the Maharajas. 

But when the Constituent Assembly was debating, continuity wasn't the only thing on their mind. Caste is omnipresent in Indian society, and its influence was pervasive, and persons of lower castes were often denied entry into temples. Opening temples up to all sections of Hindu society was a key objective for social reformers.  And the Indian state, as Nehru and many in the founding generation envisioned it, was an egalitarian, reformist state that wished to 'cure social evils.

Independence, they thought, should usher in a world where characteristics like 'caste', 'gender', or 'religion' did not govern the state's relationship with its citizens. It should not matter to the courts or to officials whether your name was Mohammed or Mahesh. Nor should it matter whether you were upper caste or a Dalit. This formal equality, as Mahajan (2008) points out, would have been impressive to start with. But they were still more ambitious and wished to eliminate discriminatory practices that existed in society at large, even if they were not perpetuated by the state.

But religious freedom stands in the way. You cannot both protect the right of persons to practice their religion freely and try to reform their religious practices in the process. But infused with the can-do spirit that only kicking the British out can give you, the Constituent Assembly decided to give it the old college try.

As Vineeth Krishna neatly documents on the CAD blog, from which I will paraphrase heavily now, the reform clause was not actually part of earlier drafts of the Constitution. It was added after concerns were expressed, by Amrit Kaur, a member of the sub-committee for Fundamental Rights (and later, India's first health minister), who felt that

'the clause is defective in as much as it might invalidate legislation against anti-social customs which have the sanction of religion.'

And so she wrote, with Hansa Mehta (another member of the Committee), to B.N. Rau (the constitutional advisor) to say:

"...As we are are all aware there are several customs practised in the name of religion eg., pardha, child marriage, polygamy, unequal laws of inheritance, prevention of inter-caste marriages, dedication of girls to temples. We are naturally anxious that no clause in fundamental rights shall make impossible future legislation for the purpose of wiping out these evils..."

And they won, and so the reform clause became part of the Constitution. 

State control

Within two decades of the Constitution, many progressive parties came to power (especially in South Indian states). These were parties like the Dravida Munnetra Kazhagam (DMK) in Tamil Nadu and the Communist Party in Kerala. They believed in aggressive social reform on issues of caste and religious superstition, and temples were a chief arena in which that reform was to take place. And so, they began to legislate for social equality, and one of the key objects to be reformed and democratised was the Hindu temple.

Hindu institutions experience state control in a deep and pervasive way that is not comparable to other religions. Sure, there is some reform (see Triple Talaq) but as Acevedo puts it, the state  "does not relate to Muslims and Christians in any way that could be considered parallel or analogous to the depth of government involvement with Hindu temples, mutts (i.e., monasteries), and charitable institutions." In Temples, Courts, and Dynamic Equilibrium, Acevedo provides a fantastic account of the state control of temples in South Indian states in particular. I recommend you read the whole thing, but the summary is that public temples in Kerala are governed by three 'distinct yet overlapping systems.'

First, you have five statutory boards overseeing "the daily operations of over 1,700 temples ranging in size from roadside altars to regional pilgrimage centers." The members of these statutory boards are chosen by 'Hindu members of the state legislature and state cabinet.' Second, there is an actual 'Minister for Devaswom Affairs' in the state cabinet which oversees a state-wide Devaswom department. Third, there's the Kerala High Court, which has a 'temple bench', which sits twice a week "to hear matters for all public temples in the state." Acevedo also explains how a powerful judge, K.S. Paripoornan, made reforms which ensured that the High Court today "considers matters that range from the exceedingly minute (approving a replacement chauffeur for the TDB's president) to the administrative (determining whether local police can lease office space within temple grounds) to the quasi-religious (assessing the relative monetary share, from devotee offerings, of a junior priest who also performs the duties of a senior priest) to [...] the validity of religious beliefs."

Secularism

If you haven't noticed yet, there is an amazing bit of "cognitive dissonance" (as Deepa Das Acevedo puts it)  happening here. How can a document which is supposed to protect religious freedom also provide the state with a set of tools for reforming religious practices? Acevedo categorizes the academic answers into broadly two camps. One approach (and Acevedo cites Pratap Bhanu Mehta for this) says "it's acceptable for the Indian Constitution to grant the state singular authority over Hinduism, but less appropriate for the state to exercise such authority over other religions. This is because Hindus dominate India's population and parliament, and so Hindus (who lack an ecclesiastical structure comparable to many Christian communities) are essentially using political institutions to govern and limit themselves." 

Another approach tries to redefine 'secularism' itself. In the United States, 'secularism' implies a wall of separation between church and state. This is a strict separation. Meanwhile, "Indian secularism" describes only a  'principled distance' or a 'celebratory neutrality.'

But as Acevedo would argue, a flexible wall that leaks like a sieve is not really a wall at all. Indeed, she has convincingly argued (in my opinion) that we can't get out of this dissonance by calling it 'Indian secularism'. We may celebrate religious diversity, we might not establish a state religion, and there might be formal equality between religious groups. But if words are to mean anything, we cannot call a system of state-funded religious institutions 'secular.' 

Instead, Acevedo would try to reconcile two things: "that the Indian state protects religious freedom and that it actively seeks to regulate and reform religion." She says we can do this "if we let go of the idea that the purpose of constitutional law is to construct and maintain one particular theory of the state." She goes on to argue that "the Indian Constitution encourages a dynamic equilibrium between these two visions [militant, acquiescent] of state--society relations."

For whatever it's worth, I think Acevedo is correct and that she offers the fullest account of the relationship between religion and the state in India. She sees no contradiction in Article 25's central promise of religious freedom being followed by the reform clause. This is how the framers set it up. The Indian constitution, she has argued, was never intended to be secular in the traditional sense of the word. That's a feature, not a bug.