“religious believes, customs and practices based upon religious faith and scriptures cannot be treated to be void”.
A bench comprised of Justice Fakkir Mohamed Ibrahim Kalifulla and Justice Shiva Kirti Singh observed that
“Article 13(1) applies only to such pre-constitution laws including customs which are inconsistent with the provisions of Part III of the Constitution and not to such religious customs and personal laws which are protected by the fundamental rights such as Articles 25 and 26”.
“Religious freedoms protected by Articles 25 and 26 can be curtailed only by law, made by a competent legislature to the permissible extent. The Court can surely examine and strike down a State action or law on the grounds of Articles 14 and 15. But in a pluralist society as existing in India, the task of carrying out reforms affecting religious believes has to be left in the hands of the State. This line of thinking is supported by Article 25(2) which is clearly reformist in nature. It also provides scope for the State to study and understand all the relevant issues before undertaking the required changes and reforms in an area relating to religion which shall always be sensitive. While performing judicial functions stricto-sensu, the Judiciary cannot and should not be equated with other organs of state – the executive and the legislature. This also fits in harmony with the concept of separation of powers and spares the judiciary or the courts to dispassionately examine the constitutionality of State action allegedly curbing or curtailing the fundamental rights including those under Articles 25 and 26”,
the judgment said.
Article 25(2)(a) and Article 26(b) guaranteeing the right to every religious denomination to manage its own affairs in matters of religion are subject to and can be controlled by a law contemplated under Article 25(2)(b) as both the articles are required to be read harmoniously. It is also well established that social reforms or the need for regulations contemplated by Article 25(2) cannot obliterate essential religious practices or their performances and what would constitute the essential part of a religion can be ascertained with reference to the doctrine of that religion itself, the bench added.
While granting right to profess, practice and propagate religion under Article 25(1), by sub-clause (ii) of the same Article the Constitution has saved the operation of any existing law and also vested power in the State to make laws for
“(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; and
(b) 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 contrast Article 26 does not envisage any restriction through a statute made by the State so far as freedom to manage religious affairs is concerned. But the right under Article 26 has also been made subservient to public order, morality and health, the same three factors that also control the right under Article 25(1) which has been made subject to the other provisions of Part III also.