The Constitution enters the sanctum

Two recent judgments of the Madras High Court — one concerning the Thiruparankundram Deepathoon and the other relating to the rights of the Thenkalai sect to recite hymns at the Kanchipuram Varadaraja Perumal temple — have brought to the fore the role of the judiciary in adjudicating religious disputes. That these matters have reached the High Court is revealing on multiple levels. First, it tells us that courts have a constitutional role in deciding religious disputes. Second, it demolishes the argument that temples are private spaces where the court or the state cannot intervene. Given the growing number of such cases, the law around religion has taken centre stage like never before.

Shift from civil rights disputes

Over a hundred years ago, it was civil courts that dealt with temple disputes. In a case pertaining to entry into the Kamudhi temple in Ramanathapuram, pitched battles around civil rights to enter temple premises were fought all the way up to the Privy Council in London. In Sankaralinga Nadan and Ors v. Raja Rajeswara Dorai and Ors (1908), the Privy Council was called upon to decide whether the Nadar community had a right to enter the Kamudhi temple. In the pre-constitutional era, such cases around temple entry and right to co-worship were primarily regarded as disputes concerning civil rights.

In 1927, the Madras Presidency government enacted the Madras Hindu Religious Endowments Act to govern temples and their endowments. A slew of legislative activity followed in the next two decades, which enabled setting up of local temple committees and the auditing of temple funds which enshrined the supervisory role of the Presidency government.

All this changed when the Constitution was adopted in 1950, which introduced fundamental rights to practice religion. The freedom of worship rights in Articles 25 and 26 to worship were made applicable to individuals as well as religious denominations. However, this freedom was tempered with the requirement that rights to practice or profess religion would be subject to public order, health, and morality. This allowed the state to further regulate worship when it offended public conscience or morality.

This period ushered in a critical shift in judicial thinking. From the earlier view that these matters were civil rights disputes, the courts began looking at them from the vantage of constitutional directives. By doing so, the judiciary asserted the rights of the individual to equality and religious freedom subject to public interest restrictions. This led to the blossoming of jurisprudence around temple entry, religious freedoms, and equality in the appointment of priests. It is now a matter of debate in constitutional courts as to if and how these rights should be limited.

Nevertheless, the southern States, which belonged to the erstwhile Madras Presidency, must be credited for bringing in this jurisprudence. It started with these States enacting legislation under the Hindu Religious and Charitable Endowments Act for better temple governance. These legislation and regulations, consequently, invited judicial oversight, as writ courts were called to adjudicate upon whether State intervention respected the rights of the religious denominations while safeguarding the constitutional rights of others. This led to the development of temple-related jurisprudence over the last 70 years.

The test used by courts

In developing this jurisprudence, courts have undertaken an inquiry into whether religious practices conflict with constitutional principles. For example, where there is a restriction of the entry of certain people or where a customary practice is in conflict with fundamental rights, such matters can be brought before constitutional courts. The constitutional court then undertakes the task of finding out whether such custom or practice is protected by the essential religious practice test. A creation of the Supreme Court, this test is to determine whether a particular custom or practice is essentially integral to the religion. Those not essentially religious were, interestingly, deemed to be “secular” and open to judicial guidance. Therefore, if a practice fails this test, then the court typically proceeds to issue directions in consonance with settled constitutional principles.

Despite criticism regarding its inconsistent interpretation in subsequent judgments, the courts have continued to use this test to bring a measure of objectivity to decisions by focusing on the core tenets of the religion itself. In Indian Young Lawyers Association and Ors v. State of Kerala (2018) (Sabarimala temple case), this approach underwent a significant consolidation when the Supreme Court held that even those practices considered essential to the religion cannot be shielded from judicial scrutiny if they are inconsistent with constitutional morality. Therefore, the law of the land is that religious freedoms are subject to constitutional morality, which in turn is founded on the principles of justice, liberty, equality and fraternity.

The growing number of religious disputes before constitutional courts reflects not only ideological polarisation within and across faiths, but also the enduring role of the judiciary in ensuring that religious practices do not undermine constitutional principles. Judicial review of religious disputes, therefore, cannot be seen as an aberration but a continuation of a long-standing constitutional engagement — one that seeks to harmonise faith with the foundational principles of the Constitution.

Manuraj Shunmugasundaram, DMK spokesperson and advocate practising before the Madras High Court; Swetha Sethubaskaran, Advocate practising before the Madras High Court