By: Nikhil Reddy Kothakota
We have discussed in the previous post, the effect that the cracker ban has on India and the need for a determinative stance to be taken up by the Supreme Court to reduce the conflicts of human rights that have popped-up under these circumstances, i.e., the implications of the cracker ban.
Therefore, in the current post, we discuss the way forward in terms of the essential religious practices test, its development, possible changes to the same in terms of evolving jurisprudence, to achieve the thin balance between the right to a clean environment and the right to freedom of practice of religion.
THE ESSENTIAL RELIGIOUS PRACTICES TEST
Once it is clear that for an element of sustainability, the question of essentiality cannot be put off any longer, it is material, that we delve into the histories of origins of the tradition of burning firecrackers and the rich judicial history showing the traits and precedents of such a test being applied, the latter of which is addressed below.
It has to be noticed that the arguments that would want to disprove the essentiality of the situation can be constructed very easily, as the ground definition of the essential religious practices test puts its faith in practices which bear a very intense and proximate connection to the basic tenants of religion, or are rather integral to the religion, and any activity would be redundancy, if it does not bear such a close connection with the religion (including practices which may be superstitious) and that may be deemed extraneous. If the Court is to analyse the burning of fire-crackers with regards to ancient texts, then, the essentiality of the practice is already a lost cause, due to the probable non-exigency of crackers or its likes and its effects on the environment at that given point in time. If precedence is taken from the likes of Commissioner of Police & Ors. vs. Acharya Jagadisharananda Avadhuta & Anr, the court without a speculation of a doubt can say, that a ban, be it partial or complete, permanent or temporary, does not alter the basic nature and ideology of the entire religion or the festivals it is celebrated for, as burning of lamps and candles for the festival of Diwali were enough of a practice before the introduction of firecrackers in the Indian sub-continent.
However, it is to be noted that this is the limitation of the essential religious practices test- if the test is applied only on grounds of antiquity of customs, without any regard to social consciousness of the people in the present day society, the courts would alienate themselves and such arguments in favour of upheaval wouldn’t be considerate of the nuance of the conditions and situation of the society and be very far away from the ground reality of the situation that is existent in the present day.
The Hon’ble Court first has to draw segregation between the burning of firecrackers: a secular activity, and burning of firecrackers: a secular activity arising from religious practice and custom. The former talks of miscellaneous practices such as firecrackers burnt during various events such as rallies and assemblies (which have been discussed in detail in Re: Noise Pollution), while the latter forms the burning of crackers in celebration of various festivals (celebration of marriages and the likes included due to their very religious nature).
In the latter practice, the Court’s applicability of the essential religious practices test, as was seen in the initial stages in Durgah Committee, is in need of major changes or amendments in terms of applicability of the doctrine.
If a practice is for a commercial gain or a secular transaction, but still based on religious grounds, it can still be essential, in spite of its economic character that it has always had since times immemorial or has recently assumed, according to the Shirur Matt case, but the question to be analysed is if just because a practice is a relatively modern discovery or not a direct off-shoot of prescribed religious rites in ancient texts and practices (on whatever commercial grounds it may have been implemented), can such a practice be disregarded due to the Court’s definition of perceived antiquity?
AN IDEAL TEST
Essentiality has to be seen not only from the perspective of ancient texts or in a strict sense of fashion, to establish a very proximate connection with the very integrity of the religion. In an increasingly fragmented society, it has to be seen from the world-view of cohesion and the spirit of oneness it brings about, the sense of a community it instils amongst a community and until this very extent, community fire-cracking, as exemplified by the Court’s orders. However, the spirit of oneness should not assume a literal meaning, i.e. burning of firecrackers should occur only in community grounds ( or assigned grounds), for oneness can permeate beyond boundaries and speaks of a sense of belonging to a community, which arises due to the similarity of custom and practice. Community fire cracking must be encouraged, and Supreme Court orders the government to encourage the same, but limiting the practice to only community grounds, as mentioned would have adverse effects.
A way forward, in the evolving context of jurisprudence, would be, to have the essential religious practices test include within it or replace it with a community conscience/sensitivity test, which again would include the core principles of the essential practices test, but without its rigidity and a tiding of community perception, wherein any practice whatever it might be will be looked upon, not only from the perspective of redundancy to the ultimate aim of the religion but also how a certain practice has evolved into forming a reasonably important part of one or more communities’ culture.
This form of sensitisation, along with removing the rigidity of the essential practices test, also enshrines upon the principle of evolution of rights, which in the most flexible terms, is a part of any constitutional order and practice.
The origin of a practice should only be looked into to see if the same was propagated with inherent and prima facie bias, say for exclusive benefit to certain sections and disregard to others, but as mentioned delving into religious history should be limited to this, and an element of foreseeability will allow an ordinary prudent man to ascertain the very harmful nature of the practice. Also, keeping in context with evolution, an important question arises– if a bona fide practice if assumes a farce of misuse, are Courts liable to strip away such practices from the core of the religion? As speculative and circumstantial it might be, the Shirur Matt case offers a well-established solution, at least, in cases of commercialization of religious practices (which shall not be deemed non-essential only on that grounds).
It is also to be noted that the aforementioned change, if applied, would not mean that the Court is giving into the majoritarian argument, i.e. protecting right to burst firecrackers only because it’s a well-established practice. Rather, such a change in the doctrine must be seen through the lens of non-interference with custom and practice, that has been established as an integral part of the society, irrespective of the time frame of its exigency and any economic impetus behind it. Whatever test is applied, must be applied sparingly in adherence to the secularist principle of non-interference, but if any inherent bias in a practice is being claimed as mentioned the social/community conscience test, according to the article is better in terms of application.
Constitutional courts of the country have always been reluctant in determining the constitutionality of religious and associated practices on various lines of public policy, (which they do not seek to disturb) or on grounds of non-interference, except in cases of very evident abuses. But if the recent slew of judgments has shown us anything, it is that the Courts are more open to interpreting such delicate matters. The essential religious practices test has been in much controversy lately, and on examining its course from Durgah Committee, Shirur Matt to Sabarimala, a reform in the methodology of determination seems necessary and an issue such as the ban on firecrackers, if interpreted in terms of the constitutional morality our jurisprudence has to offer, the Supreme Court is sure to lay a groundwork for meaningful discussions and arguments, both inside and outside the courtroom, with much more emphasis on environmental protection and human life in the line of non-regression (revising norms that protect rights in a non-beneficial manner) of fundamental rights.
(Nikhil Reddy Kothakota is currently a student at Symbiosis Law School, Hyderabad. His interests lie in Comparative Public Law and extensive Public Policy, especially in the areas of Education and Government Accountability, and hopes to make a career out of it.)