In theory, the Courts can ban lighting agarbattis, performing havan and ringing bells for pujas. How is this possible? This is because the Courts have been delivering judgements, each of which have been ever more restrictive in terms of what is allowed.
We trace the origins in the Shirur Mutt case, through the Venkataramana Devaru case the Ajmer Durgah case to the Sabarimala case. The doctrine of essential practice is analyzed against the concept of religious denominations.
The last lecture and the discussion after the lecture, kind of doubt ails in to my topic. in the last discussion we were discussing about, how wealth of temples can be managed and participation in bounds in the financial schemes, which will monetize, the wealth of the temple which is largely in the form of gold and ornaments and artifacts and such such things. So the big doubt that was raised here was if the temples do not have the independent management, and if they are unable to make, educated inform choice, how was the scheme work? so that is a larger question of general, you know, rights in terms of freedoms offered for managing religious institutions and that doubt age in to the freedom offered for rituals practices and general the practice of religion as such and what we find that there has been the flow of judicial activity over the last fifteen years or so, which, where the judiciary has stepped them and very often made then wide ranging, judgment of wide ranging impact, on conduct of festivals on rituals, observances.
So you can, there is a history to it, right from, starting from bans, there was a legislative action, in the early part of the 21st century to ban, animal sacrifice in temples, on the part of the Tamil Nadu government, which has to be taken back after a lot of public outcry and lot of popular discontent over the proposed act. However there was other thing which are come from the centre, from the supreme court which have been challenged on the ground in terms of popular sentiment, but which have still hells way. So we can take examples of the Sabarimala judgment of last year, where the restriction on who can offer, can or cannot offer the worship of temple at what time and so on. These freedom were of the temple to manage its on respective ritual practice, where set aside by the supreme court.
Similarly the supreme court will also set aside the practice of bull fighting, Jallikattu, which resulted in a popular outcry and popular discontent. There are other even recently the Tripura high court had ban the practice of offering animal scarifies at the Tripureshwari Mandir and there has been other bans, I means the courts have been interfered on. There is a Dahi Handi, where you have a Dahi Handi in Maharashtra where the people form a human pyramid, there the court and intervene and said what should be the height of the Dahi Handi, how many people should participate and so on and so forth, and basically the court have taken wide brief, to mandate and regulate religious observances and it is not, I means, on the last year again we saw the ban on the Diwali firecrackers on the grounds that, they were causing pollution and particulate pollution and so on, which despite a lot of facts and information being provided saying that the main cause of the pollution was not on the firecrackers which was fired during Diwali, but due to crops stubble burning around the national capital, due to the changed agricultural practices. But still that was not admitted by the court.
You had again bans on the cock fights, during religious festivals, you had restriction on Naga Panchami on grounds that, Naga Panchami festivities are harmful to the snakes and there the snakes where worship, but people said that it was actually you are torturing the snakes and you will see, there is a lot of in general, in popular media, especially in media, the most of the bans and these legislations, they usually have media campaign leading up to them, firecrackers there was media campaign leading up to it, Sabarimala judgment there media campaign leading up to it. The Jallikattu judgment, there media campaign leading up to it and so on so forth.
Now there are various aspects to it. One of them is that there is a lot of this interference on the part of the judiciary, is due to suits or law suits in, you know, litigation file, public interests litigation filed in the courts by organizations, which have some, may have some vested interest in the way this litigation are run. That’s an angle from the foreign funding prospective which I probably touch up on, I have touched up on another discussion, but which we won’t touch up too much in details.
What enable this kind of wide ranging of public interest litigation and wide ranging regulation and interference, in specifically Hindu affairs, religious affairs, is the structure of the constitution, and the structure of the constitution, there are certain aspects which give freedoms to practice religion with caveats. So I would like to point your attention to certain articles of the constitutions.
Articles 19 says that, protection of certain rights regarding freedom of speech, to assembles peacefully, to form associations or unions, to move freely throughout the territory of India and to practice any occupation, carry on any occupation, practice in profession etc. So there is a state that says that nothing shall affect the operation of any existing law or prevent the state from making in any law, in so far as, such law imposes a reasonable restriction on the exercise of the rights, in the interest of the sovereignty or integrity of India, the security of the state, the friendly relationship of the foreign state, public order decency or morality or in relation to contempt of court deformation or incitement to an offence.
Now, this is about regarding the freedom of speech, assembly, freedom of association. So you have freedom of association, but it is subject to reasonable restriction with respect to public order, decency, morality. So that is Article 19. Article 25 freedoms of conscience and the right to freely profession, practice, and propagation of religion and that as soon as you say that the Indian state guarantees freedom of conscience and freely profession, practice and propagate religion; it immediately says that it is subject to public order, morality and health. So and there is specific Article 25 (2)(b) which says that, nothing in the Article shall affect the operation of any excising law or prevent the state from making any law, 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.
So it is on the basis of these clauses, it says that you have the freedom to practice you religion, but there are reasonable safe guards. One of the reasonable safe guards is that, it should not infringe up on public order, morality and health, it should not infringe up on people’s freedom of consigns and their fundamental rights, and it should provide for social welfare and reform only for Hindu religious institutions. Social welfare and reform is restricted to only Hindu religious institutions, mainly because at time that the constitutional assembly was convened, the idea was, there were certain protections that were to be offered to people. There were certain practices such as restriction access of people to the temple, which were of a public character. Again it specifically states, even if the temple is of a public character, I can restrict. Suppose if I have small private Mandir. I have, suppose, I have rich enough, I have big enough house, I have a small private Mandir in my house, I can restrict access to who needs to come in, who doesn’t need to come in. I can say that if you have, for example, I can say that Mutts, for example do not restrict entry of people in shorts, I don’t want to have you in shorts, there is a dress code to my temple, I don’t want you to come to my temple drank. That’s the restriction that I place on my temple, or if I am a particular nasty person I will say that people of this caste should not come into my temple. There is nothing in the law to prevent me from being nasty in my private property. It just make me a back person, it doesn’t make my action illegal.
Then 26 – freedoms to affair, freedom to manage religious affairs again subject to public order, morality and health. Every religious denomination or any section thereof shall have the right to manage its own affairs. I just ignore the other clauses, it says to manage its own affairs in matters of religion. So there are certain things which basically bring, there are certain questions that you have to now ask.
Now that we have this basic information about the constitutional provisions, we have to say what constitute public order, morality and decency, especially what constitutes morality, and what kind of freedoms are covered under this, what is a denomination and what is a practice.
So this brings to certain doctrines, which are embedded in the constitution, the essential practices doctrines. So I will just walk you through the essential practices doctrine, through certain landmark judgment and how does it has evolved constitutionally over the years and also the definition of denomination or the restriction to denominations, certain specific denominations to manage their own religious affairs and the, we will walks through the basic structure, the basic structure doctrines, which are embedded in the constitution.
So let me first walk you through the essential practices doctrine. So anything if you say this is the religious practice and I need the freedom to contact this religious practice to participate, to run this religious practice, it has to pass the essential practices test. What is this essential practices test? This entire test and the doctrine essential practices was evolve through several land mark judgments. The first one is the 1954 ShirurMutt case. Most of this, I will tell you the most of this judgments, most of these doctrines are expounded in cases and in judgments where the original case was not really, not directly related to the doctrines, but it was some other kind of disputes in the ShirurMutt case.
The ShirurMutt is one of the eight mutts in Udupi which manage the temple, in a rotation basis. It’s called the Paryaya system, where the swamy of each mutts, eight of these mutts, the swamy of each mutts manages the temple and offers the primary worship of the temple in a rotation system. They have a period, the Paryaya period. So one of these mutt is the Shirur Mutt and the swamy, who came in to the Madathipathy seat, was the Lakshmindra Theertha Swamiyar, and this Madathipathi, when he was came to the seat, he was junior, he was a minor and the people managing the affairs for him, the mutts affairs for him, and after he became, came in to majority, he started managing affairs by himself. The mutt ran into financial difficulty, and they were forced out of and borrow money and so on and therefore at that point in time the Shirur mutt, in the Udupi region was under the Madras presidency.
The Madras presidency had Hindu religious charitable endowments rules act. Under the Act they appoint somebody to come and managed the affairs of the Mutt and afterwards another person. This person become the proxy for somebody. They wanted to take over the entire mutts affairs, just keep the Swamy as a figure head and manage the affairs and eventually this transformed in to power struggle, where the Swamiyar had to evict the person appointed by the HRC board. And among the point of the contention were the practices, which were carried by the temple in the Shirur mutt swamiyar and the question came up as to whether this is freedom of religion and this is essential practice.
So in this judgment, there is an interesting section of the judgment, where I read it out for you. In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way, at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities, partaking of a commercial or economic character. All of them are religious practices and should be regarded as matters of religion within the meaning of article 26(b) and article 25 (2)(a).
So what it says is, if you go through the essential practices test, 1954 ShirurMutt judgment, what it says was, an essential practices should the essentially religious in practice, is should be essentially religious in nature. If it is essentially religious in nature, the state does not have any authority to comment on it or to regulate it, except where there is, I mean, you can have religious rituals where people, there are religious rituals, where there are aspects of self harm, for example there is the Made Snana, where people eat, and people roll over the leaves after they eaten, they are Hooks Winging practices, where people gets themselves, stung up and hang by a hook, which is put into or punched in to their flesh, there is an aspect to self-harm. But you cannot, as long as it does not exceed certain limits and actually involve human scarifies or there were certain practice that children being buried alive, which I read the news paper, which I cannot trust, but the children supposed to be buried alive for sometimes and then brought out of something like that, which was pretty disturbing, the way its described.
So may be the things like you would the state would have… Muharram, Muharram is an essential practice, which the essential practice which the state does not interfere. But even if there is self-harm, swinging from hooks is similar to Muharram, where people actually cut them also open with sharp objects. So the state will not interfere, except if you are giving human scarifies or you are going to coming suicide or something like that, which is extreme in nature, in which case the state will deemed it necessary to intervene. So that is in Shirur mutt case.
So basically in 1954, in the Shirur Mutt case, where did not, there were too many precedents from Indian Judiciary proceeds, so lot of the precedents with that, they drew from commonwealth countries which is followed the British systems of the jurist providence. They took example from New Zealand and from England, cases in England and essentially arrived and then came to this definition of an essential practices, which is that should be essentially religious and there for it is covered under the freedom of religion.
The next case was 1958 Venkataramana Devaru verses the state of Mysore. Since 1950’s, once the state of Mysore adopted the same temple entry rules, which had been adopted by the Travancore state before independence and it had, Travancore states temple entry law had been brought with slight change and had been brought in to force and the Madras presidency also, and the state Mysore adopted that. Now there is a temple in Mulkipetta in the west coast of Karnataka and the temple was run by Gaud Saraswat Brahmins, community of Gaud Saraswat Brahmins in the west coast of Karnataka and they said the laws of, the laws of temple entry should not apply to them, since they were the denomination and as a denomination they had the right to reserve entry and since the temple had been set up as part of their, when their community has been actually came and settled in that place, the temple was established for the benefit of their community. Therefore, A) they were a denomination. B) it was not a temple of public character and therefore the rules of temple entry should not apply to them. They wanted exemption from the rules of temple entry and the case was decided against the community, the Gaud Saraswat Brahmins community and the reason was they were not determined, they were determined to be a denomination, they were given the status of a separate denomination.
But even though the practice of exclusion was essentially religious in nature, there was an exclusion and throwing open temples of worship by all parts of Hindu community had become imperative for the constitution, with for the government India, within the Indian constitution. Therefore, they could not restrict entry, the general entry to the temple. But as the denomination, they had certain right to partaken certain rituals of the temple, were they and they alone had the rights and therefore this was seen as an essential practice, and they had their rights, and added a small tweet to the essential practice doctrine.
As said that this is essential and you had your rights and they are general rights, they were specific rights to the community and their general rights, we will not infringe upon the specific rights of the community of the denomination, but we will not extended to all general rights saying that you had complete and free access to the all, managing all the affairs of the temple including getting to decide who enters and who doesn’t enters, because the temple while it had been establish for the Gaud Saraswat Brahmins community, it was also for the benefit of entire community and all the people of all communities around that region and there for it was of a public character. So, there was a tweak to the essential practice doctrine from this case.
The next case restricted the essential practice, the definition itself the restriction of the essential practice and this case in 1961, the Dargah Committee of the Ajmer Vs the Syed Hussain Ali and others. So, there is background to it, the Ajmer Sharif Dargah is the Dargah of Sufi Saint Moinuddin, the Khawaja Moinuddin Chisti and there was a community of Khadims, who belonged, who were associated with the Dargah, who was supported or decedent of companions of the Sufi Khawaja and they were all members of Sufi Chisti order.
And during over time, there was always some form of state interferences during Akbar’s time. I mean, before Akbar’s time, the Dargah was not in a very rich state. It was inevitably, it was a Khacha structure people occasionally travelling there or going there and after Akbar’s time the committee was established and the state actually intervene and made it help people, make it a pakka structure and set up a committee to manage its affairs. Now the Dargah committee and the Khadims, the hereditary khadims, came into a conflict. The primary reason for the conflict was the people used to go to Mazar at Ajmer Sharif and they used to make offering. The good portion of the offering, it was taken by the khadims and there was an agreement reached with representatives, the administrative representatives whereas the Khadims who had a ritual roll to play and the administrative people and the Dargah committee would get a share of the money which was given to the Dargah.
Now, in 1961… So before that, before independence there was a case saying that the khadims had the right to the offering in the Mazars, made by the pilgrims at the tomb and at the Dargah, and they had gone, it had gone back forth and it had gone all the way to the preview council in London, and they said that they had fundamental right to property, as its denomination, they had fundamental right to property and this was the property of the Chisti order of the sufies and when again came in to conflict, with the Dargah committee, the submission made before the court was that the Ajmer Dargah was the property of the chisti sufi order and the Dargah committee verses of general Hanafi Muslims, people, Muslims who followed the Hanafi order, Hanafi school of jurist providence and therefore, this was the infringement of their rights as a denomination.
The case was dispersed, against the khadims and there is an important, there is an important observation, so to speak, made by the honorable court, in this case. This says, religion is a matter of faith with individuals and community and it is not necessarily theistic and it has its systems of it clears the doctrines, and but it does not correct to say that, after that, it says that religion itself is nothing but doctrines or a belief. Religion may not be only laid upon a code of ethical rule of followers to accept. It may prescribe rituals and observances ceremonies and modes of worship, which was regarded as integral part of religion and these forms and observances, may extent even matters of food and dress.
So it says that similarly even practices, though religious they are sprang from merely superstitious beliefs and may in that sense, we extraneous and accent and unessential accretion to religion itself, unless such practices are found to constitute an essential and integral part of religion, they claim for the protection under Article 26 may have to be carefully scrutinized. In other words, the protection must be confined to such religious practices, as are an essential and integral part of it and no other. This is very, very critical point and this mark as an important turning point, in the essential practice doctrine. Earlier a practice was held to be essential practices, if it is essentially religious in nature. Now the practices is held to be essential practices, only if it is essential part of religion.
Somebody, I think it was Hari Prasad one of the person works this area, who made the observation, that freedom of expression is an absolute and unfettered right, and it is an absolute and unfettered right only with restriction with respect to harm. You cannot harm people, for example, you cannot shout, fire in a crowd at theatre, where there is no fire. If there is no fire and you shout fire in a crowded theatre, that is harm. If there is a fire in a crowded theatre and you shout fire and there is a stabbing, you are acting in good faith, you are trying to save people. So that is the nature of freedom of expression, other than that, I can say whatever comes to my mind.
I cannot say that your rights are limited, rights of expression are limited, only the essential expression. For example, this entire talk that I am giving is not an essential expression, an essential expression would be for me to come and to say, I want tea, or I want to buy a ticket, as said anything beyond that is and it is not really an essential part of expression. So you can say, I do not have a freedom to come and make this talk here, because it is not an essential exercise of a freedom of expression. So a freedom of a religion, you cannot say that you should, your freedom extent only to what is only essential, my freedom might extend beyond religious practice, may extend beyond what is essential, and if you apply this excess essential practices doctrine in Hindu religion, almost everything is found to be unessential. There is nothing which mandates that I have to go to temple at every morning. There is nothing which mandate which I have to ring the bell. There is a puja Padhathi, which says that I have to ring a bell, and it is not for every denomination. For example, some puja Padhathi, may say that, you not need to ring a bell.
You just mentally recites some prayer, and you are ok; you don’t need to ring the bell or show chamber, or you know, light Agarbatti or whatever. But if you are restricted, then what is essential, there is nothing which is essential, then again if you say that it is for freedom of denominations, then what is denomination in Hinduism. The Swamy Narayanan Mandir belongs to Swamy Narayanan denomination, which is very specific, but who should the Tirupati Mandir belongs to. There is no denominational restriction on the Tirupati Mandir. But there are restriction saying that only the priest from the Vaikhanasa school of Agama school, Vaikhanasasa Agama school can be a priest of Tirupati, its Vaikhanasa’s denomination. No, it is an school of Agama, you cannot call it denomination.
So under this practice, you cannot call almost no Hindu, except may be in the Arya Samaj or may be the Isha yoga foundation or may be the Arya Samaj may be called denomination, Swamy Narayan can be called denomination. But the vast majority of Hindu practice does not fall under any specific denomination, therefore no freedom can be guarantee, and if guarantee only essential practice then there is no essential practice right, so essentially if you look at it then lot of question crop up.
Now after this, the other landmark judgment were, there were certain very far reaching observations made, was in the Sabarimala case. Indian young lawyers association and others Vs the state of Kerala and other. Now the Indian young lawyers association, that’s a very interesting case, I will tell you the geneses of the cases itself. There was as major controversy that there was.., I will give you a little of back ground. Sabarimala there is a practice of a Devaprasnam. There all matters, I mean, whether you have to build a roof here, or whether you should build a stair in this way, everything is decided by consulting the deity and the deity is consulted by means of a Devaprasnam. Devaprasnam, where there is a process and the answer, the deity gives you an answer. So during a Devaprasnam, there was a controversy, which erupted saying that, the deity had, there was the deity’s Brahmacarya or his Brahmacarya state was being disturbed due to women, the presence of woman or something that, or because the Tantri, the presiding Tantri or the chief priest was came under fire.
There were wide allegation of corruption on the part of the Tantri and so on and at that time a Kannada Actress came up and made a statement and saying that, it could be because of me, and the reason she give was, she was there in the temple, she was there, had gone for darsan and there was crowd, and she was pushed and she went and fell on the idol. So I have been to Sabarimala, it seems very far fits to me, because there is distance, about at least 5-6 meters and it’s on a rise platform with four steps, 3-4 steps and then there is the idol, beyond 4-5 meter, there rise platform. However much, there is a crowd, if you fall, you will fall on the stairs, you never get inside, you never be thrown inside and actually go and touch the deity.
But anyway, after this there was a kind Sudhikaranam or something like that done, because a women had visited. This appeared in NDTV, I believe, as a news item. And the people in the young lawyers association, they saw this and was a infringement of a fundamental right of a women. These are people who are nothing to do in the temple, who are even if it is thrown open to everybody in the world, they are not going to visit temple because they are not interest to temple and these people filed suit. So it was taken up.
Then there was another lady, who asked to be included, primary respondent was the Indian young lawyers association, who eventually withdraw. But the secondary impleaded which was.., the person was the leader of the Indian young lawyers association. But the secondary, the person impleaded, who was the college student from Panjab university. Second year college student, BA student from Panjab university, who impleaded herself. Nobody knows what she looks like, whether she really exist. This is between the year 2006 to 2018.
When this all happen and the Panjab university student was… sometime in 2012 or 2013, the person is Nikitha; name is not sure, whether it is Nikitha Anand. In some places it appears Nikitha Anand and in some places it appears like Nikitha Azad. I am not sure who’s this person is, I don’t know what she look like and she ran campaign, I believe called “Happy to Bleed” or something like that, and supreme court lawyer represented her. She impleaded herself in the case, and eventually the case, towards the end of the trail, the Indian young lawyers association actually withdrew from the case. The case is run on behalf of this person who are impleaded, who we don’t know whether she was really exist or not. But any way, the court did take it up. And the critical things the part of the judgment, there were certain observation that the bench made. The court should uphold a differential attitudes with such cases touching on religious matters, and redeem the matters practices under the scanner as essential. But never there was in investigate whether such customs, believes or usages violates the fundamental rights of the individual. It is a very interesting observation.
They say that, they may not have a complete and stood determine, whether the practices essential to the religion or not. We do not have, we may not have a that competence, we should adopt a differential attitude to whatever the respective experts are saying. But we always have a freedom to examine whether it violates fundamental rights of the individual and each case this, they held that, this violates fundamental rights of the dignity of the individual and the morality as defined, because they bound the morality, subjected to morality. The morality is constitutional morality not public morality, constitutional morality. And this morality of constitution is not what is determined by society and by public and that pointing in time. It is something held to be pristineand inviolate the constitution and this must adapt and overcome challenges thrown to it by society. This is outside judgment. It’s the observation made outside judgment.
So which means that, it must adapted to overcome the challenges even if you don’t like it, what’s there in the constitution, which will hold, even if every single Indian is not happy about it, the citizen is not happy about it. What is constitution, what is morality as defined in the constitution and as interpreted by the bench will hold. It’s not a matter of public opinion and it should adopt a transform challenges. It is a transformative document, whole point, it says it is a transformative document, the document is not for reflecting what the pause point of a society is, it is for transforming the society in to a certain vision or to a certain mold, which the constitution holds. The basic question is whether the recognition of right in hearing the religious denomination can impact upon the fundamental values of dignity, Liberty and equality which animate the sole of the constitution.
The right of the denomination must be balanced to the individual rights of each of its members. It would be impossible to conceive of a preservation of liberal constitutional values, while at the same time allowing the group rights define those values, they practicing exclusions and through customs which are derogatory to dignity. So, it says, the individual rights as held in the constitution holds. Groups rights are subservient to the individual rights. Essential practice is not sufficient to determined that you have a freedom to practice it. It’s not necessary, it doesn’t even have to be essential. Even if it is essential practices, if it violate a certain structure of the basic structure, basic feature of the constitution, we can strike it down and we can intervene.
Essential practice… now it brings out the essential practice of doctrine. We now go into the second doctrine, which we want to examine which is the Basic Structure Doctrine. So for this we need to go back to the 1973, to the Kesavananda Bharati case, 1973. The properties of the Edneer Mutt were taken over by the government of Kerala, one of the Devasom board, government of kerala, towards one of land redistribution problem, and the Mathadhipati of the Edneer Mutt at that time was the Sankaracharya, the Kesavananda Bharati swamigal, and filed suit saying that his rights, as a head of the institution and the rights of the denomination were being infringed upon because the denomination had the right to acquire properties and administer the properties freely, and in this case, on the landmark judgment, there is certain, rise certain very fundamental questions and the landmark it was, probably the biggest bench of the supreme court which ever was convened was the Kesavananda Bharati case, in which there were eleven judges.
The bench composed of eleven judges and eventually they held that there are certain parts in the constitution that is essential and the fundamental nature of the constitution, which they are called the Basic Structure of the constitution. The government, even though there is Article 368 gives the government of the day, the right to modify or to alter the constitution amend, alter and amend the constitution, the fundamental character cannot be changed. So that is the basic structure doctrine.
So if you, judged up both of this, what eventually come up with, is that the essential practice doctrine from being, any practice which is essentially religious in nature, which is wide ranging freedom from that, it has been vital down to essential practice in the Ajmer sharif case and then in the Sabarimala case, it has been thrown out of the window. We don’t even care whether they are denomination, or we are, what your duties are and what it says, if we find that it is in conflict with constitutional morality, we reserve the right to throw it out, we reserve the right to judges, or the bench the supreme court reserves the right to intervene. And even if the government, of the day, legislate to protect these freedoms, this legislation can be thrown out, because if this legislation is found to violate the basic structure of the constitution. So this is the back ground.
And so, this is where we are in terms of what freedoms we have. So essentially the freedom which are given to religious denomination to Hindus, are basically there are pretty limited freedoms, its Act, the description of court and Act, the description of the government of the day. So tomorrow if I have a government, which is particularly ill dispose towards Hindus and the government of the day, decides that lighting Agarbathi is a polluting activity, because it produces smoke, they can ban Agarbathi in your house, if you can produce some texts, which I say that it is essential that I should do my Puja every day by lighting Agarbathi, the courts, and the government of the day and the pollution control board can intervene and stop you from lighting Agarbathi.
If you ring your Ghanti, every day at home it is sound pollution, your neighbor is disturbed. Therefore we can ban you from Ghanti Bhajana. It sounds funny. There are, I have seen Articles where there writing about the kind of pollution that Agarbathi is causing. One of the usual suspects, in news papers, there is an op-ed which said thatlighting Agarbathi is a polluting activity. They said that. There was another Article which said that the flowers which is offered in temples, it is height determined to the environment, it produces a lot of waste which should manage properly, the temple don’t manages it, they just throw it, it causes pollution, it causes ABCD. So you can be stop by this principle, if you take this, if you take in totality, you can stop from offering flowers at temple, you can stop from lighting Agarbathi, you can stop from Bajake Ghanti, you can stop from basically anything, horn is a polluting activity, everything is a polluting activity, I will say if you are Hindu, you are essentially, you are either, you know casteist, patriarchalorpolluting, any Hindu, ifyou are Hindu, practice will be casteist, patriarchal or polluting, you arecoming under one of these categories.
I mean while this sound is very funny. But it’s give far ranging rights to the state to intervene and interfere any aspect of activity. Now how is it that, before the Sabarimala case the essential practice doctrine was essentially thrown out of the window, before that right, non Hindu communities, whether there is any Christian community or any Muslim community, they belong to certain denomination, they have certain rules, they are certain essential practices, you have to go to church, you have go to the mosque every Friday, you have to prayers in the particular way and there is nobody from prevent from doing that because you are a denomination, with a laid down set of rules with a leader, who can decide on the rules are for you, you have a religious leader. If the Sikh you have religious leader in a Gurudwara, he will tell you what you need to do, there is a book, there is certain practice, there are thing that you supposed to do, there are thing which are not supposed to do, and all of that essential practice, and you have a freedom as a denomination to practice. This is available to all denominations and basically it restrict freedom of religion only for minority, and the state can arbitrarily intervene, in the practices of Hindus and Hindus allow, so that is the constitutional structure.
Now this is a part where I could get from jailed, but I want to go ahead and say that anyway. So I did kind of comparative analysis between Sharia law and Indian constitution. So I did, just did a basic study of thick which is Islamic juristprovidence. So there are four authorities, by which you can determined and every aspects of your life can be determined: what time you should pray, what dress you should wear, how your property should be inherited, how you should deal to a civil disputes, how criminal justice is to dispensed… All of this, there are very specific and very clear roots – who can give evidence, what can be admitted as evidence, and what is the basis for determine.
Fiqh, it says the ‘fiqh’ is the human understanding of the Sharia. So the sharia is laid down by the Quran, and the Sunnah and the full understanding is there only with god, with god, the Allah, and his prophets. Final prophet should be the prophet Muhamed. So the Fiqh is the humans interpreting, the will of god and the messages which were reveal to the prophets and the source of authority. The primary source of authority is the Quran, the second source of authority, next in importance is the Hadiths, which are events in the life of the prophets and his companion. Then the comes to Ijma, which is process call Ijthihad, where is collectively reason and concerns, concerns is among scholars, of Islamic jurist providence of a particular generation and the interpretation by the Islamic scholars.
So if you see, why they spend so much time in the Madrassas as learning the Quran and memorizing the Quran, memorizing the Hadiths it’s because it’s essential. If you have to conduct you life, if the society in the Islam, if Islamic society has to be conduct, you need a large body of people, well versed in this knowledge, to be able to specify what to do what not to do, how to run things and Ijma is the collective reasoning. Then if collective reasoning is not available, there is analogy, Khalkias, which is, at this point in time there is no collective reasoning. So I take anything which is limited in Ijma and go back to the Quran and Hadiths and then do an interpretation of what is in the Quran and Hadiths, to make a determination as to any, if it is a property dispute or matter of worship, whatever it is, I can make a decision or a Scholar can make a decision.
Now the Quran and Hadiths are basically the, Quran is the original, the preamble of the constitution, and the constitution itself and that would probably be the various judgment which are offered which are formed the Hadiths in the Ijma, and if I am sitting as a judge, as a bench, the bench is the Khalkias, there is a Quran, in the Hadiths, there can be no, absolutely no, question of any change there, because it’s a revealed word of Allah, the god himself. There is no way that you can go and correct, or improved up on the word of god upon himself. So there has been some constitutional morality, which was given to us in the constitution, and that cannot be changed for all eternity. It is fixed for all eternity and you can may be take interpretations, so you would need large body of lawyers and judge who were well versed and studied and memorized the constitution to interpreted for you, to interpret the will the constitution and constitutional morality for you.
So there is fatwa. Fatwa is a non-binding opening which you can take from the Islamic scholar, as a late person you can go and take fatwah from a scholar. Fatwah can be for anything, it can be for matter of foreign policy, it can be for matter how you what to educate your children. It can be even, Fatwa says that how many times you can wash my hands before I start my prayer, you can ask a fatwa, non-binding opinion. Same way our court setup amicus curiae who give non-binding opinions, who will investigate the matter and based on the principle of the constitution, they will give you nonbinding opinions and similar to the Sharia, they also have Jasia imposed up on infidels in India. We also have specific restriction on what infidels can do or cannot do, which is the freedoms of religion, which is, comes with the caveats, which was basically infringes among the morality of the constitution.
So, it works in the same way as the Sharia. In a Sharia country, in a country governed by sharia, if the infidels has the right to practice religion, but if the infidels comes out of the street and does it’s Arthi or does it’s the Ghanti, it basically violates the sense of propriety of the Ummah of the mumin, and there for the infidels does not have a right to violate the sense of propriety of the mumin. Same way the Kufror the infidels in India, the infidels has his right to go to the temple and do whatever he does, as long as he does not infringe up on the morality on their lordship of their of bench, as long as he does not infringe up on the sensibility of lordship the bench, you can Bhajan, Ghanti, and if lordship her ladyship can decide that your Ghanti is immoral, they can put restriction on it.
Thankfully we don’t stone people to death. But our neighbor has got there. We had blast from the past. Article 295 says that you cannot hurt sentiments and it is in effect, if you blast me law. It says that if you blast me against the prophet or you blast me against particular Christian religion, blast me against Jesus or Mary, you are liable to punished and that cannot apply, blasting cannot be applied to Hindus because either is no blasting. I can say whatever I want, I can get up here and I can say whatever I want, and I can somebody will find some scepters, somewhere with great bhakth, says the same thing of his god. So there is no blasting me here. Therefore anybody can get on stage and say anything about Hindu religious figure or religious text or religious practice, but the same thing cannot be done for an Abrahamic religion for people of the book.
Our neighbor has gone ahead and our neighbor, Article 295 I mean somebody was pointing it out, Article 295 A only restrict, only defines blasting and defines the punishing blasting, Article 295C is there in our neighbor, Pakistan, where you can be put to death for insulting the prophet, death. So we are not there yet, we are getting then. And unofficially, we still there are people would dwell out of the death penalty. Since we are not there yet, there are who are. I heard of the crowed, who are dwelling out of the death penalty, when the prophet is insulted.
So, that is the state of affairs, and we at why I had, people are thinking about, why is said that, you are ringing a bell, you are lighting an Agarbathi or you are doing something, you are restricting someone for your temple, is such a big problem for him or her. I don’t have a problem, with what you do, what some other denomination, or whatever set by side and how they lead their life. Why somebody has a problem with me. That’s the question that we all ask and this has been something, which has been pedant, are always confronted with it and pedant simply can’t get their head around this. Wherever the Abrahamic religion has set full, has conquering religion and they start imposing restrictions, the pedant initially says that this people, ‘Ya, they doing something different’.The protrude said ‘ok, no big deal, ok, you don’t eat a particular kind of meat, I don’t eat this kind, this particular kind of meat, which is ok. You just do different thing differently, probably we do the same thing”.
Then the pedant things, that this is just another form what he is doing, he or she is doing. But the Abrahamic is not the same thing, the Abrahamic do the abrahamic way, Everybody has to have a certain way of working, were is the certain way of worship, whatever else. This is a certain revelation, whatever is not a part of revelation is false and it is a duty, in there is depending up on the denomination, certain denomination. It is a duty, for example, the older denomination of the orthodox church of the Jews, say “That ok. Its not false, but it’s doesn’t belongs to me, somebody is doing it. I don’t have a particular meat to go and correct him”. But the late rant, later version, alteration of Abrahamic religions mean, they see a completion to go and correct. If you take care the protestant religions, they are compelled to come and correct him, it’s part of spreading the good words, spreading the good news, its part of their responsibility, save you with.
Later Islam Dawah was a responsibility, spreading the good words. There is something so wonderful here, which you are missing out on and spreading the good words is a responsibility and therefore anything that you are do, a severe strange, if it is not mandated as per our book or as per the revaluation given by the god, who is the single source of truth and therefore you have to be corrected. That is the thing which you animates, that is the same kind thing, that you animates the present arbitraries of your faith or on bench. They says the exactly the same constitutional morality which they are talking about, they say that the popular sentiments may not reflect what is the morality is. But it has to adopt the challenges thrown by the society, and it has to transform the society, the principle of the constitution is to chase the society. It is not to help the society run itself, according to what it ceases right. But it has to change the society Into a certain direction and in a certain image, what to remake the country in certain image. So there were some of the observation I had and this is not with a precedent.
So, this was some of the observations I had and this was not with our precedent. The edict of Thessalonica, I mean one of the Roman emperors, basically banned all taken practices offering worship at shrines, animal sacrifices. People says that, the Olympics were stopped at certain point of time in 400 AD or something. Nobody says, why they are stopped. The Olympics as with other pedant practices. Olympics, the games at Olympics, all these were related to some form of worship of gods. They were something to do with Jews, Jupiter or Hera. Therefore, some form of worship, with any kind of activity, with horse races, games and so on, and this was the means for, the floor for, the pedant to stay away from the church. So, therefore, the emperor banned it because he said this is repugnant to us.
Let me take that, let us come back 1600 year to 2006, in the Madurai bench of the Madras High court. In the Madurai bench of the Madras High court a case came up. I think it was the Muniyasami Thevar was the respondent. There was a dispute in the temple, the temple used to have annual fair, some kind of Mela, and part of the mela they used to have a Rekla race. Rekla race is where a single ox tied up to a cart and they have race, and it is linked up to the temple festival and they believed that, it is the belief that, if you have the Rekla race this year, you will have good race, it will satisfy the god in the temple, the Ayyanar, the Ayyanar god in the temple. And there had been a dispute between the different castes and different factions in the village and therefore the religious festivity had been stopped and the Muniyasami Thevar approached Madurai bench of the Madras High court with a submission, asking that the Rekla race been continued.
Justice Banumathi was on the Madurai bench of the Madras High court at that time she is now on the supreme court, and she said that this cannot be allowed, the Rekla race cannot be allowed, since it constitute the cruelty to the ox and unilaterally she included cock fighting and Jallikattu practices. You know, it was never under discussion, but she included the practices and she said that these were also repugnant since they involve cruelty to animals and she said we could not allow permission. And then you have the active eco-systems which picked up on the judgment, and try to pass it and took it all the way up to supreme court and lot of case happen.
If you look at it, before this judgment, or before this, nobody knew what it look like, nobody had even seen it. The biggest festival was something which was attend by a few thousand people in village called Alanganallur, somewhere on the border between Kerala and Tamil Nadu. Nobody even cared about, it was happens in one day in a year and few bulls were just run, some guys were hang on to the bull for 30 seconds and then, you can’t even hang on a racing bull for more that 30 seconds, such a powerful creature, and you will fall off right, have it for one day in a year, somewhere in the remote corner somewhere. In this court and why the supreme court get animated over it. It’s because of it’s a observance. Its pedant and essentiality repugnant, all this story animal rights, women’s right and environment and all that is just, the language which is employed, at core, it is this repugnant, toward the exhibition of the pagan, of the heathen, exhibiting their religious practice or their behavior, which is repugnant to an Abrahamic morality at core.
That is my submission and we can questioned and we can debate it, that is my submission and that’s basically, that’s the trucks of this talk I had to deliver.