DHARMASHASTRA NATIONAL LAW UNIVERSITY

JABALPUR

CONSTITUTIONAL LAW

Addition of Word “religious practices” After the Word

‘Worship’ In the Preamble

Submitted By: Abhinav Jena

Submitted To: Mr.Ashutosh Singh
Ms.Srishti Chaturvedi
Enrollment No.- BALLB/002/18

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ACKNOWLEDGMENT

The project is a subject of extensive research could not have been completed without a few
things. First, I would like to express my gratitude to our teachers for helping and guiding us
towards the completion of this project. I would also like thank the administration for the
provision of the best facilities without which the completion of this project would have been
impossible. I would also like to acknowledge the constant support of my colleagues. Lastly, I
would like to thank the almighty whose blessings helped me to complete the project.

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INDEX

SL.NO. TOPIC PAGE NO.

1 INTRODUCTION 4-5
2 PROPOSED AMENDMENT 6
3 BACKGROUND 6-10
4 ARGUMENTS 11-13
5 CONCLUSION 13
6 BIBLIOGRAPHY 14

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INTRODUCTION
The Preamble to a Constitution embodies the fundamental values and the philosophy, on
which the Constitution is based, and the aims and objectives, which the founding fathers of
the Constitution enjoined the polity to strive to achieve. The importance and utility of the
Preamble has been pointed out in several decisions of the Supreme Court of India.

However, by itself, it is not enforceable in Court of Law; the Preamble to a written

Constitution states the objects, which the constitution seeks to establish and promote, and
aids the legal interpretation of the Constitution where the language is found to be ambiguous.
The Preamble to our Constitution serves two purposes:
(a)It indicates the source from which the constitution derives its authority:
(b) It also states the objects which the constitution seeks to establish and promote.

The words- We, the people of India adopt, enact and give to ourselves this Constitution, thus,
declare the ultimate sovereignty of the people of India and that the constitution rests on their
authority. Sovereignty means the independent authority of a state. It means that it has the
power to legislate on any subject; and that is not subject to the control of any other state or
external power. The Preamble declares, therefore, in unequivocal terms that the source of all
authority under the Constitution is the people of India and that there is no subordination to
any external authority. It means a government by the people and for the people.

The Indian Constitution posits a separation between a secular domain regulated by the State,
and a religious domain in which it must not interfere. However, courts of law are regularly
called upon to resolve a multiplicity of issues related to religion, and their decisions may have
a far-reaching impact on religious conceptions and practices. The judicial process requires
that standardized, clear-cut definitions of many notions (such as “religion” itself, or
“worshipper,” “custom,” “usage,” “religious service,” “religious office,” “religious honor,”
etc.) be established in order for them to be manageable within a legal context. Moreover,
even though a religious domain may be distinguished from a secular one and protected from
State intervention, there are litigations concerning civil rights that involve religious issues on
which civil courts may therefore have an explicit duty to rule. Interventions such as imposing
legal definitions or deciding on religious matters on which civil rights depend are systemic in
character and intrinsic to “modern” law itself. In this, they do differ from any explicit policy

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of state secularism or the no less explicit reformist will of some judges, which may change
according to the historical period or to their personal dispositions.

During colonial times, the British largely followed a policy of non-regulation of “personal
law", leaving “communities" free to manage their own internal affairs (something akin to the
Ottoman “millet" system). The fundamental normative unit was the group, evidenced through
a number of legal measures such as separate electorates, and penal provisions criminalizing
insulting the religious feelings of any “class".

For this reason, when the legality of Dawoodi Bohra excommunication (of recalcitrant
members to preserve the “identity" or “purity" of the religious denomination) was brought
before the colonial courts (Sardar Syedna Taher Saifuddin v. the State of Bombay, 1962), the
only enquiry made was as to whether, historically, the Dai (head priest of the Dawoodi Bohra
community) had the power that he claimed to exercise.1

In this case, the Court uttered the principle of “Essential Religious Practices” and decided
whether the Excommunication Act contravened the rights guaranteed under Articles 25 and
26 of the Constitution. Religious practices are an essential part of any religion. It is the
product as well as the foundation of any religion.

In India, religion is an essential source of law and there have been some major contributions
by various religions to the formation of the modern law. This is very much evident from the
inclusion of certain provisions in the Indian Constitution that gives a certain form of sanctity
and freedom to all the religions.

The honourable Supreme Court has been called upon repeatedly to decide upon various
matters relating to a particular religion and to test certain religious practices on the pedestal
of the Constitution of India. The Court has recently displayed this is the cases regarding the
practice of Triple Talaq, the entry of women in mosques and the entry of women in the
temple of Sabrimala.

1
Gilles Tarabout, ‘Ruling on Rituals: Courts of Law and Religious Practices in Contemporary
Hinduism’ (2018) SAMAJ< https://journals.openedition.org/samaj/4451> accessed 15th August
2019

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Seeing this constant evolvement of the idea and liberty of religious practices the following
amendment has been proposed to include the word “Religious Practices” after the word
“Worship” in the Preamble of the Constitution of India which if accepted which will be a
humongous step in establishing the liberty of the religion and at the same time curtailing the
liberty and rights of an individual. The Preamble is the face of any Constitution and adding
such a phrase will not only hamper the Constitution but also the socio-economic structure of
the Indian society.

PROPOSED AMENDMENT

THE CONSTITUTION (ONE HUNDDRED AND TWENTY-SIXTH AMENDMENT)

ACT, 2019
[16th August, 2019.]
An Act further to amend the Constitution of India.
BE it enacted by Parliament in the Sixty-Ninth Year of the Republic of India as follows:-
1. Short title and commencement.- (1) This Act may be called the Constitution (One Hundred
And Twenty-Sixth Amendment) Act, 1976.
(2) It shall come into force on such date as the Central Government may, by notification in
the Official Gazette, appoint and different dates may be appointed for different provisions of
this Act.
2. Amendment of the Preamble. - In the Preamble to the Constitution,-
For the words "LIBERTY of thought, expression, belief, faith and worship” the words
“LIBERTY of thought, expression, belief, faith, worship and religious practices" shall be
substituted.

BACKGROUND

Religion has always been an essential part of the Indian society. It is one of the forces that
drives and institutes the Indian society and is entrenched to the very core of its existence.
Religious practices are the outcomes of religion that enforces the ideology and beliefs of that
particular religion. These religious practices enjoy the same sanctity and observance as that of
the religion of itself mainly because of the time of its existence. Certain religious practices
have been a part of a particular religion from time immemorial and some even from its very

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inception. These religious practices have become not just a part of that particular religion but
in certain aspects the face of that religion. There are religions that are recognised by their
very practices themselves.

Religion being an important source of law from the very beginning brings with itself the
religious practices that it propagates. We have moved form a time where the law was
governed by a divine entity and religion was the law but now we have moved to a very
different society were religion is not the law anymore but a certain aspect of it and in some
cases has to stand the validity of certain others documents like in the case of India, the
Constitution of India.

India is one of the societies in the world that was heavily influenced by the idea of religion
and with time was very much able to diminish it effects to a certain extent and balance it with
the concept of rule of law.

The framers of the Constitution of India from the very beginning were sure about the nature
of the Constitution they want to achieve. They were very clear in establishing a Rule of Law
country were the Constitution would be the supreme document and all the other laws and
practices have to gain validity from the Constitution itself. This idea and concept had its own
challenges because for the very first time the Government started challenging the religion and
its practices and laid down the Constitution that has to be the pedestal for giving sanctity to
these practices contrary to the former where the religious practices enjoyed their sanctity
because of their mere existence.

After this, there have been continuous instances where certain religious practices were
brought before the Court to check their validity against the principles and ideas of the
Constitution. There are certain instances where the Court have refused to entertain such pleas
as in cases relating to religion the Court sometimes feels itself as having no jurisdiction. The
function of the judiciary has always been to keep a check on the validity and the
Constitutionality of any legislation and not religious or societal practices. However, with time
the honourable court has come to understand that law does not exist in vacuum but is a part of
the society and both have an effect on each other. Realising this judiciary has eventually
started addressing the cases of religious practices and in certain cases tested them against the
principles and functions of the Constitution of India.
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However, with time the Court came to realise that not every religious practice requires the
same attention or validity as any other. There are some religious practices which are essential
and important to the very existence of the religion and only these practices in certain cases
can stand valid even though they oppose to the principles of the Constitution only if they are
stand the ‘Test of Proportionality’.

Where did the Courts find the concept of essential practice? It appears in a discussion on the
scope of Article 26(b)—management of its own affairs in matters of religion—in the Shirur
Mutt case that pertained, among others, to the property rights and protections offered by
Articles 25 and 26 to the head of a Hindu religious endowment. The question is, where is the
line to be drawn between what are matters of religion and what are not?

. . . The learned Attorney-General lays stress upon Clause (2)(a) of the Article [Article 25]
and his contention is that all secular activities, which may be associated with religion but do
not really constitute an essential part of it, are amenable to State regulation. The contention
formulated in such broad terms cannot, we think, be supported. In the first place, what
constitutes the essential part of a religion is primarily to be ascertained with reference to the
doctrines of that religion itself.10 The term “essential” was coined because Indian courts had
to make a distinction between matters of religion and matters of secular activity amenable to
state regulation.

Subsequently, the concept of “essential” surfaced in two other cases on the regulation of
religious charitable trusts. The apex court held that the protection of Article 26 (right of
religious denominations to establish, maintain, and manage its own matters in matters of
religion) only extended to such religious practices that were essential and integral parts of the
religion.11 In another case where Muslim butchers challenged an Act banning cow slaughter
(sacrificing a cow was a religious practice during Bakr Id, they said), the court pointed out
that the “materials before us are extremely meagre” to substantiate the claim that the sacrifice
of a cow was enjoined or sanctioned by Islam.2

2
Shylashri Shankar, ‘A Juridical Voyage of “Essential Practices of Religion” From India to Malaysia and
Pakistan’(2015) SAGE< https://www.uni-bielefeld.de/(en)/ZiF/FG/2014Balancing/Publications/Shankar-
Voyage.pdf> accessed 12th August 2019

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In the Syedna judgment, we begin to get a picture of when the concept of “essential
practices” crops up in the court—on issues where the state has to regulate the secular
functions of a religious group (applies to all religions), or when the state has to undertake
social reform among Hindus, or when a religious practice is at odds with a constitutional
directive to the state.3

Recently in the Sabrimala judgement (Indian Young Lawyers Association vs. State of
Kerala), there were very different opinions that were observed in the judgement regarding
the practice of exclusion of women from the Sabrimala temple. All the judges had very
different methods of coming to a conclusion about whether the practice of exclusion of
women from Sabrimala temple is an Essential Religious Practice or not.

Misra CJI and Khanwilkar J. hold that the devotees of Lord Ayappa at Sabarimala have failed
to establish that they constitute a “separate religious denomination”. Misra CJI and
Khanwilkar J. then hold that the fundamental rights chapter applies to the Temple, as it is
governed by a statutory body (the Devaswom Board). Consequently, women have an
enforceable Article 25(1) right to entry. This right is not undermined by a contrary right of
exclusion because, on facts, excluding women does not constitute an “essential religious
practice” that is protected by Article 25(1). This is because no scriptural or textual evidence
has been shown to back up this practice, and it is not possible to say that the very character of
Hinduism would be changed if women were to be allowed entry into Sabarimala. Moreover,
on facts, this practice appears to have commenced only in 1950, and therefore lacks the
ageless and consistent character that is required of an “essential religious practice”

Nariman J. accepts, for the purposes of argument, that barring women of a certain age from
accessing Sabarimala is  an essential religious practice, and therefore protected by Article
25(1). However, he agrees with Misra CJI and Khanwilkar J that Sabarimala fails the
rigorous test for a “separate denomination.” Article 26, therefore, is not attracted, and the
proviso to S. 3 of the Act is not attracted. Therefore, even if there is an essential religious
practice excluding women, this practice is hit by Section 3 of the Act, which provides for
non-discriminatory access to all “classes” of Hindus.

3
Shylashri Shankar, ‘A Juridical Voyage of “Essential Practices of Religion” From India to Malaysia and
Pakistan’(2015) SAGE< https://www.uni-bielefeld.de/(en)/ZiF/FG/2014Balancing/Publications/Shankar-
Voyage.pdf> accessed 12th August 2019

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Malhotra J. takes strong issue with the Majority for holding that the exclusion of women is
not an essential religious practice (and therefore not protected by Article 25(1)), and argues,
instead, that this determination should be left solely to the religious community itself.
In the present case, Malhotra J. relies upon the statements of the Sabarimala Thanthri and the
Travancore Devaswom Board to the effect that “the limited restriction on access of women
during the notified age of 10 to 50 years, is a religious practise which is central and integral
to the tenets of this shrine, since the deity has manifested himself in the form of a ‘Naishtik
Brahmachari’.” 
On the basis of a Government notification, Malhotra J. asserts that the worshippers of Lord
Ayappa at Sabarimala “follow a common faith, and have common beliefs and practises.”
Malhotra J. recognises, however, that this is a considerably more relaxed threshold than that
articulated by previous judgments, and followed by the Majority. She tries to get around this
by once again implicitly invoking the group autonomy principle, and arguing that a “liberal”
interpretation should be accorded to the question of what constitutes a “religious
denomination.” But this will not do: unlike the question of essential religious practices, which
are required for threshold protection under the Constitution’s religious freedom clause,
religious denominations are entitled to special and differentiated rights under Article 26:
maintenance of institutions, acquisition and administration of property, and (textually) a
greater autonomy in determining internal religious matters.

Justice D.Y.Chandrachud’s judgement had a separate part on this issue. He opined that we
have moved from the idea of “essentially religious” to “essential religious” practices. At the
threshold, Chandrachud J. finds that the Respondents have failed to establish that the
exclusion of women from Sabarimala either is an obligatory part of religion, or has been
consistently practiced over the years. The evidence, at best, demonstrates the celibate nature
of Lord Ayappa, but this in itself does not establish that exclusion of women is part of
Essential Religious Practice.

These instances show how the Essential Religious Practice Test has its own fallacies. The
issue of determining whether a religious practice is essential or not in itself not clear,
ambiguous, and open to interpretation. This in some ways affects and compromises the whole
test.

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ARGUMENTS:

In the present time, the Judiciary is becoming more and more accessible and at the same time
people are becoming more aware about their rights. They understand their privileges and
liabilities and what restrictions should be considered reasonable. This in itself has increased
the number of instances where repeatedly the Judiciary has been called upon to decide upon
the constitutionality and essentiality of a religious practice.

In the above amendment, the term “religious practices” should be substituted with “essential
religious practices” because every right and liberty is not absolute and has its own reasonable
restrictions.

Here the idea and the test of essentiality is in itself a reasonable restriction. It is time to
realise the importance of religious practices in the contemporary society and accept its
existence but at the very same time safeguard the rights of all the individuals.
There are numerous instances where certain religious practices have hampered the societal
morality, constitutional morality and even infringed rights of individuals.

Some of the recent examples being the case of Shayara Bano vs. Union of India and Ors.,
where the Court established that the practice of Triple Talaq is not essential to the existence
or tenets of Islam and its practice is cruel in nature not just to a women but to the society at
large. In this case, the practice of Triple Talaq was not an essential practice but a practice or
part of Islam. If we give liberty to these practices then we are breaking down the very
foundation on which our Constituition is based upon. Such horrible practices are shameful for
the whole humankind in itself and such practices should be condemned.

Similarly in 2016, in the case of Dr. Noorjehan Safia Niaz And Anr vs State Of
Maharashtra And Ors. the Court, observe that the test for an “essential practice” was that it
must   “constitute the very essence of that religion, and should be such, that if permitted, it
will change its fundamental character”.  This being the case, the Court found that the Trust
had failed to demonstrate that Islam did not permit the entry of women into
Dargahs/Mosques, a claim that was further weakened, given that women had been allowed
entry up until 2011 – 2012. Of course, the Trust argued that it was only after 2011 that its

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attention had been drawn to what the Sharia actually required; to this, the Court’s swift
response was that the Trust had placed nothing on record to show what specific aspects of
the Sharia had been drawn to the Trust’s attention that changed the position so drastically.4

The essential religious practices test was invented out of whole cloth. The Court have used
the test of Essential Religious Practice repeatedly like Narasu Appa Mali, Ram Prasad Seth,
and Qureshi.

Giving liberty to every religious practice is also detrimental as there are certain practices that
are born out of superstition and cannot be considered religious. Such practice have no validity
and existence on the religious texts or preaching but have evolved from mere belief. Giving
validity and liberty to such practices from the preamble can be detrimental to the society and
the moral fabric of the society.
In the case of Nikhil Soni vs. Union of India, the Court held:

“We do not find that in any of the scriptures, preachings, articles or the practices followed by
the Jain ascetics, the Santhara or Sallekhana has been treated as an essential religious
practice, nor is necessarily required for the pursuit of immortality or moksha.”5

Here again the practice of Santhara was nowhere considered an essential religious practice
hence a practice of such horrific nature where a person starves to death should be banished.

On the 2nd of December, 1948, Ambedkar delivered a speech in the Constituent Assembly

where, among other things, he observed:
“The religious conceptions in this country are so vast that they cover every aspect of life,
from birth to death. There is nothing, which is not religion, and if personal law is to be
saved, I am sure about it that in social matters we will come to a standstill. I do not think it is
possible to accept a position of that sort. There is nothing extraordinary in saying that we
ought to strive hereafter to limit the definition of religion in such a manner that we shall not
extend beyond beliefs and such rituals as may be connected with ceremonials which

4
Dr. Noorjehan Safia Niaz and Anr. Vs. State Of Maharashtra and Ors. (2016) SC
5
Nikhil Soni vs. Union of India & Ors. (2015) RJ HC

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are  essentially religious. It is not necessary that the sort of laws, for instance, laws relating
to tenancy or laws relating to succession should be governed by religion.”
Ambedkar’s use of the term “essentially religious”, therefore, was in response to a very
specific concern. He was worried that unlike in the West, with its seemingly clear
demarcation between the City of God and the City of Man, there was no aspect of Indian life
which was untouched by religion. Consequently, insofar as the Constitution protected
religion and personal laws, there was a very real risk that it would entirely hamstring the
State’s power to pass social legislation. He was, therefore, adamant that there must be a
separation between religious activities, and secular activities tinged with religion. The latter
could have no constitutional immunity from legislation. In Ambedkar’s formulation, it is
clear the word “essentially” qualified “religious”, and was designed to separate the religious
from the secular.

These very examples and instances show that religious practices in itself can never be
separated from an individual but there has to be some restriction on such practices and the
test of essentiality is one such reasonable restriction.

CONCLUSION:

In the recent times, the evolution of religious jurisprudence shows that there is a need to
address the issue of religious practices as religion and man in India can never be separated.
The issue of liberty of certain practices should be upheld but they should pass the test of
essentiality. The above amendment is partially valid in nature and should be substituted for
“essentially religious practices” which will have the impact of reasonable restrictions on such
liberty. Awarding the liberty of religious practices is very much valid and is a need of the
hour but as always such liberties should be reasonably restricted and in this case pass the test
of ‘Essentiality’.

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BIBLIOGRAPHY

Statutes:

 The Constitution of India, 1950

Cases:

 Indian Young Lawyers Association vs. The State Of Kerala (2018) SC

 Shayara Bano vs. Union of India & Ors. (2017) SC
 Dr. Noorjehan Safia Niaz and Anr. Vs. State Of Maharashtra and Ors. (2016) SC
 Nikhil Soni vs. Union of India & Ors. (2015) RJ HC

 Sardar Syedna Taher Saifuddin Saheb vs. State of Bombay 1962 AIR 853, 1962 SCR
Supl. (2) 496
 The State Of Bombay vs Narasu Appa Mali, AIR 1952 Bom 84
 Mohd. Hanif Quareshi & Others vs The State Of Bihar, 1958 AIR 731
 Ram Prasad Seth vs State Of U.P. And Ors., AIR 1957 All 411

Websites and Blogs:

 Dr.Tarunabh Khaitan, ‘The Essential Practices Test and Freedom of Religion – Notes
on Sabarimala’ (IndConLawPhil, 29 July 2018)
<https://indconlawphil.wordpress.com/2018/07/29/guest-post-the-essential-practices-
test-and-freedom-of-religion-notes-on-sabarimala/> accessed 13th August 2019

 Gautam Bhatia, ‘The Sabarimala Judgment – I: An Overview’ ( IndConLawPhil, 28

September 2018)< https://indconlawphil.wordpress.com/2018/09/28/the-sabarimala-
judgment-i-an-overview/> accessed 13th August 2019

 Gautam Bhatia, ‘How courts decide on matters of religion’ ( LiveMint, 5th march
2019)< https://www.livemint.com/news/india/how-courts-decide-on-matters-of-
religion-1551715822881.html> accessed 13th August 2019

 Gautam Bhatia, ‘Individual, Community, and State: Mapping the terrain of religious
freedom under the Indian Constitution’ (IndConlawPhil, 7th February 2016)<
https://indconlawphil.wordpress.com/2016/02/07/individual-community-and-state-

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 mapping-the-terrain-of-religious-freedom-under-the-indian-constitution/ >accessed
13th August 2019

 RN Bhaskar, ‘The Supreme Court and religion in India: A blinkered perspective?’

(FirstPost, 12th October 2018)< https://www.firstpost.com/india/the-supreme-court-
and-religion-in-india-a-blinkered-perspective-2731538.html> accessed 12th August
2019

Online Journals

 Shylashri Shankar, ‘A Juridical Voyage of “Essential Practices of Religion” From

India to Malaysia and Pakistan’(2015) SAGE<
https://www.uni-bielefeld.de/(en)/ZiF/FG/2014Balancing/Publications/Shankar-
Voyage.pdf> accessed 12th August 2019

 Gilles Tarabout, ‘Ruling on Rituals: Courts of Law and Religious Practices in

Contemporary Hinduism’ (2018) SAMAJ
<https://journals.openedition.org/samaj/4451> accessed 15th August 2019

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