This article focuses on the aspect and the method that is being adopted in Indian jurisprudence in relation of adjudication of the religious matters. The fact that all religions and their beliefs are deeply embedded in the societal aspects of our country in quite a factor that makes it most vast subject to adjudicate by the jurists themselves. If we talk about the jurisprudence other than India.

Usually, courts in USA have tried to avoid sitting in judgment on 'religious error' or religious truth. The Indian Supreme Court has taken a different direction, trying to purify Hinduism from what it reads as superstition and to give it a modernist and rationalistic definition of religious error and religious reality[i].

This approach is not only unhealthy to the jurisprudence of our great country but also to the religious beliefs through which our vast system of religion persists and which is quite evident from the recent events in quite of part of an individual. Unlike the United States, the Indian Constitution blends religious freedom provisions with the state's requirement to participate in religious affairs. The Court's use of the doctrine of essential practices has served as a vehicle for legitimizing a modernized form of high-Hinduism and delegitimizing the use of popular Hinduism as a superstition. This culminated in legislation for a specific regulatory framework for Hindu religious organizations and severe limitations on the freedom of religious sects.

The point that the adjudication is done by legal jurists those who have the most basic knowledge of the religions and majority of knowledge of legal aspects pertaining to it. This usually results in deductions of the ratio by which some practise or some aspects pertains in the religion and vedic history behind it and this can be resolved with help of dharma gurus or high priests who have an extensive knowledge and have done an indepth study on different aspects of religion.

The embargo on judicial intervention in religious matters is similar to a political question's doctrine, in which it can be recognized that just as political branches are anticipated to be more apt to decide the political issue, religious bodies are more apt to decide religious questions. Just as in the case of Marbury v. Madison[ii] it was observed that there are certain questions which by their nature are political and therefore not suitable for any judicial adjudication, similarly, there are queries which by their very nature are religious and equally off-limited to the court system. The courts would have no business in deciding these cases, because religious concerns have always been defined as non-justiciable.

It has been noted that where the court considers any other issue where religious questions have been raised to be answered, they will usually refrain from determining the case rather than providing the explanation itself, since philosophical and ecclesiastical questions are not justifiable. It is not right for the judiciary to order people what they want or cannot believe in in these matters. The courts should stop, out of respect for the distinct legal jurisdiction of religious institutions, grappling with such religious issues.

J.D.M. Derrett wrote about the paradox of the Court playing the role of a religious interpreter: 'The courts may dismiss as non-essential anything that has not been proven to their satisfaction – and they are not religious leaders or qualified in any relevant way in such matters – as essential, with the result that they would not have any constitutional protection[iii].

With a power greater than that of a high priest, maulvi or dharmashastri, judges have virtually assumed the religious authority to determine which doctrines of a faith are 'essential' to any faith and have categorically underlined their constitutional power to strike down those essential doctrines of a faith which conflict with the dispensation of the Constitution. Few religious Pontiffs have this type of authority and power.

This is a statement by Rajeev Dhavan and Fali Nariman. The interpretation of the court, which differs significantly from that of the Shirur Mutt judgment, shows the contradictions between the commitment of the court to the 'modernisation' of religion and the need to appeal to the traditional authorities to sanction its decisions. It also shows the Court's willingness to put 'public policy' before the religious practice of an individual or a community[iv].

Therefore the observation by the apex court in the Sabrimala judgement[v] while discusing the essential religious practices of the religion is quite a live example of the focus of this study. Even while discussing the essential religious practises the judges although citing historical context adjudicated it on the basis of constitutional morality. As Justice Gajendragadkar wrote in 1963 about Hinduism:

It is true that the decision on whether or not a certain practice is a religious practice, as well as the issue of whether or not an affair in issue is an affair in matters of religion, may raise difficulties because, at times, religious and secular traditions are inextricably mixed together.

This is more particularly so with regard to Hindu religion because, as is well known, all individual beings from birth to death under the provisions of ancient Smritis and most of the actions of indvisuals from day to day are regarded as religious in nature. ... While it might not be easy to disengage the layman from the sacred, it must nevertheless be attempted[vi]

The supreme court although is conscious of this fact as reflected when referring the Ayodhya[vii] case to mediation and consisting mediators involving of both religions. But the approach is not able to be forgotten which is quite evident by the issues decided by the nine-judge bench in Sabrimala[viii] review petition which includ:

• Ambit and scope of religious freedom?
• Meaning of expression section of Hindus under Article 25(2)(b)?

Therefore, the question which arises now is quite clear that whether the jurists who no doubt has vast knowledge of the law can interpret the topics as vast as scope of religious freedom? The answer to this is in negative as keeping the fact aside that every religion has different interpretation to concepts like this, many religious leaders are not able to answer these questions easily. Moreover this case is not limited to only Hinduism but is more or less applicable to all the

Therefore in conclusion the approach of the court while discussing the religious aspects need to bring a reformative and most wide discussing approach with including the religious high priests and Dharma Gurus and should separate the ‘the church from the constitution’.

This will really help in bringing about the change that we need to promote the status of our courts as the interpreter of the religion and the courts need to recognize that India, unlike any other country, is a diverse society where people from diverse backgrounds, beliefs and traditions are present. In such a situation, it can cause serious damage to the constitutional fabric of India if the Courts take action to adjudicate on such questions.

End-Notes:

1. Ronojoy Sen (2009) The Indian Supreme Court And The Quest For A ‘Rational’ Hinduism, South Asian History And Culture, 1:1, 86-104, Doi: 10.1080/19472490903387258
2. Marbury v. Madison, Oyez, https://www.oyez.org/cases/1789-1850/5us137 (last visited May 22, 2020).
3. Derrett, Religion, Law And The State In India, 447.
4. Commissioner, Hindu Religious Endowments, Madras V. Sri Lakshimindra Thirtha Swamiar Of Sri Shirur Mutt, (1954) Supreme Court Appeals (SCA), 415
5. Indian Young Lawyers Association & Ors. V. The State Of Kerala & Ors. Writ petition (Civil) no. 373 of 2006
6. Tilkayat Shri Govindlalji 1963:622
7. M Siddiq (D) V Mahant Suresh Das & Ors, 2019 (1) SCALE 347
8. Kantaru Rajeevaru V. Indian Young Lawyers Association Thr. Its General Secretary Ms. Bhakti Pasrija And Ors., Review Petition (Civil) No. 3358 Of 2018