AIMPLB cautions courts on judicial scrutiny
The All India Muslim Personal Law Board (AIMPLB) has told the Supreme Court that courts should refrain from determining what constitutes an “essential religious practice”, cautioning that such judicial scrutiny may amount to encroachment upon the religious freedom guaranteed under Articles 25 and 26 of the Constitution.
The submission is before the nine-judge bench, scheduled to hear the women's entry in mosques, certain temples and Parsi temples.
In its written submissions filed in the Sabarimala reference case, the Board argued that identification of the “core” of a religion is inherently subjective and dependent on the beliefs of followers, and therefore unsuitable for judicial determination. The reference arises out of the review petitions filed against the 2018 verdict, which allowed the entry of women of all age groups to the Sabarimala Lord Ayyappa temple. The nine-judge bench will commence the hearing from April 7, on all petitions demanding women's entry in Mosques, Parsi temples and Sabarimala Temple.
Muslim Personal Board submitted that the doctrine of Essential Religious Practices (ERP) places an unfair burden on believers to prove that a particular practice is essential to their faith. Instead, it said, the focus should be on whether State restrictions satisfy the constitutional limitations of public order, morality, and health.
It contended that determining the essentials of a religion involves complex questions of faith, doctrine, and interpretation, which are better left to religious scholars and denominations rather than courts.
The submissions state that judicial determination of essential practices could lead to interference in religious autonomy and dilute the constitutional guarantee of religious freedom. “While dealing with Article 25, to interpret what is religious practice or for that matter, the core of the religion within the meaning of essential religious practices, these matters must be left for those who are scholars in religion or the religious denominations and/or the beliefs of the followers of that particular religion.
Certain practices change with circumstances, like in Hajj manner of Namaz and many other acts commonly done by the followers of Islam get altered completely. The Namaz, which is offered at the time of burial of a follower of Islam, is completely different from what is offered normally.” The AIPMPLB stated that instead of an ERP test, the effort could be to find a method to lay down a principle to understand the meaning and scope of ‘public order’ and ‘secular activity’ when it comes to matters of religion. In this process, the court shall be dealing with the issue which is secular in nature and not ‘matters of religion Morality not to be understood solely as ‘Constitutional morality on the issue of limitations under Article 25, the Board urged the Court to adopt a balanced approach while interpreting “public order” and “morality”.
The submission argued that morality in the context of religious freedom should not be understood solely as constitutional morality but must also take into account the moral principles of the concerned religion, unless those principles are directly opposed to constitutional values. “As far as ‘morality’ is concerned, for the rights under Article 25, this term should be understood by creating a balance between the moral principle of the religion concerned and the pure constitutional values, unless the moral principles of the religion are not 180-degree opposite of the constitutional values, the same should not be touched. The Board also warned that the State should not invoke public order or secular regulation as a pretext to interfere in religious matters without clear legal justification.
“As far as the meaning of morality under Article 25 is concerned, the concept of morality must not be understood as being divorced from religious rights. This Hon’ble Court, on many instances, have interpreted ‘morality’ as ‘constitutional morality’. It is submitted that any interpretation of ‘morality’, whether constitutional morality or some other terminology, must be to uphold rights and not curtail them.” Gender and Religion Cannot Be Treated as Opposing Identities. Addressing gender equality concerns raised in the Sabarimala litigation, the Board submitted that gender and religion are not mutually exclusive identities.
The Board submitted that a woman may simultaneously assert autonomy and choose to express her faith through religious practices, and that constitutional adjudication should recognise this coexistence rather than presume conflict between gender rights and religious freedom. Equality in Religious Freedom Must Account for Diversity. The Board further argued that formally neutral policies may produce unequal outcomes across religions because different faiths have distinct practices.
The submissions stated that in a multi-religious society, equality cannot be understood merely as treating all religions identically.
Instead, the constitutional guarantee requires recognition that different religions have distinct practices and obligations, and therefore, equal protection must be assessed in relation to the specific practices of each faith.
The Board argued that facial neutrality may conceal unequal effects, particularly where policies or judicial doctrines are structured around assumptions derived from the practices of a majority religion. In such cases, minority practices that do not conform to the same patterns may be placed at a structural disadvantage, even though the rule itself is framed in neutral terms. To explain its position, the Board cited the example of the “sunrise to sunset” regulation governing access to protected monuments. The Board submitted that while the rule is neutral in wording, it may restrict religious observances such as Namaz in mosques located within protected sites, whereas similar restrictions may not affect religious practices of other faiths in the same manner.
