Advocate Arvind Datar, a senior and well respected Lawyer in the Supreme Court of India, recently
wrote an article regarding the origins of Article 26 of the Constitution of India. The article is a well written one, and should ideally be read by every law student ought there. Those who are interested in the Sabarimala Judgement should also read the article.
Now, to quote from his article:
“If the group does not satisfy any limb of the three-fold test, it would not be a religious denomination. Thus, it is indeed rather strange that a Hindu “religious denomination” will be only a group that fits into the Christian mould of a denomination. “
This is the poignant observation here: To evaluate whether or not a Hindu religious grouping falls within the ambit of Article 26, it has to qualify a Christian view of what a ‘denomination’ is. This obviously will not work out in favour of Hindu groups. The qualities of a Hindu “group” would not be similar to what a Christian “group”. Hindus are polytheistic, with no central structural paradigm, and with varied practices and customs in complete contrast to Christians. Of course when I say there is no “central structural paradigm” I do not intend to say there is nothing unifying Hindus – rather, I am looking at it from the point of worship. Take me, for example. I would not describe myself as only a devotee of Ayyappa or only of Devi Saraswathi. My devotion or faith to both of them may be equally strong. In the context, look at the test adopted to identify a religious denomination:
As given under MP Jain’s Indian Constitutional Law: [Also given under Commissioner, HR & CE v LT Swamiar (AIR 1954 SC 282)]
It is a collection of Individuals who have a system of believes which they regard as conducive to their spiritual well-being.
They have a common organisation.
Collection of these Individuals has a distinctive name.
Here, suppose that there are two religious institutions – temples X and B, of Ayyappa and Saraswathi. I may be a devotee of both, but the whole populace is not. There are those who would be devotees of Ayyappa and Lakshmi, Saraswathi and Vishnu, and numerous other iterations like that. Then, we fail to qualify for protection under Article 26 because we do not satisfy 1 and 3. This essentially means that Hindu groups will find it hard to exercise denominational rights. Therefore, the interpretive technique used to review whether Hindu groups fall under “denomination” ought to be changed.
It must be noted that the interpretation of this article is immensely important, because the right granted under Article 26 is a collective right, as opposed to the individual right given under Article 25. The Supreme Court had stated in its opinion in the Sabarimala case that Ayyappa devotees failed the test under Article 26, and it is little wonder that we did. Not only that, the Court concludes that the practice at Sabarimala was not essential o to the Hindu religion, and of course it is not essential for the Hindu faith. It is a unique practice that is essential to the deity at Sabarimala. [I talk more about the problem with the Supreme Court being a theologian in a yet to be published piece for Swarajya.]
To look at our practices from a monotheistic uniform prism would be to invalidate the plurality of religious practices in the country. The court could have look at the plain reading of the text, to adduce a meaning that makes eminent sense. However, such an effort was not made.
Hopefully, the results of the review Judgement would be that the Article 26 applies to all Hindu groups.