1,720,954 research outputs found
Judging the Freedom of Religion in India on the Touchtone of Doctrine of Essential Practice Test
Get PDFIndia is a secular nation where innumerable followers of religions, sects live. The Constitution of India gives the protection for freedom of religion. The protection is not available to all types of religious practices. This protection is available to only those practices which are essential to religion. Whether any religious practice is essential or not? To adjudicate this Indian Supreme Court has adopted the ‘Doctrine of Essential Practice Test’. This paper explore the development of this doctrine in India. This paper has been divide in six parts. First part gives a brief overview about people and their faith and their protection under constitution. Second part deals with the concept of secular state. Third part discuss about the meaning and concept of religion. Fourth part deals freedom of religion under Indian Constitution. Fifth part deals with doctrine of essential practice test. Sixth and last gives the conclusion.
Keywords: Secularism, Freedom of Religion, Fundamental Rights, Constitution of India
Introduction
India has a greater diversity of group of life. More than 1.25 billion people having and beliefs of various religions, languages, cultures, social life styles, traditions, practices, attitudes, and beliefs. In India almost all major and minor faiths have their own self-expression. Wsithin the religion innumerable sects, beliefs, practices and philosophies have grown.[1] The diversity of religion and their faith has protection in the Indian sub-continent. This protection comes from the concept of Secular State. A secular state does not recognize any state religion. But all the religions flourish and get equal scope for their development on the basis of non-intervention. The followers of different religions are free to form their own associations for their development, provided they do not come in the way of other associations. Preamble to the Constitution of India guarantees to make secular country and give its people liberty of thought expression faith and worship.
Concept of Secular State
D.E. Smith in his book ‘India as a Secular State’ has extensively written about the concept of Secular State He defines Secular State, as a State which deals with the individual as a citizen irrespective of his religion. It is not constitutionally connected to a particular religion nor does it seek to either promote or interfere with religion. D.E. Smith further states that secular state involves three sets of relations are:
(i) religion and the individual (freedom of religion);
(ii) the state and the individual (citizenship);
(iii) the state and religion (separation of state and religion).[2]
Dr. Sarvpalli Radhakrishnan expressed his view on secularism in India that when India is said to as a secular country, it does not indicate that we deny the presence of an unseen spirit, the significance of religion in daily life, or that we elevate irreligion. It doesn\u27t mean that secularism becomes a positive religion or that the government has divine authority. Despite the fact that faith in the Supreme is a fundamental principle of Indian tradition, the Indian State will not identify with or be governed by any religion. We believe that no single religion should be given preferential treatment or unique distinction, and that no single religion should be granted special privileges in national life or international relations, as this would be a violation of democratic principles and contrary to religion and government\u27s best interests.[3]
Prof. K.T. Shah said that “The State in India if it claims to be secular, it should have an open mind and in my opinion a right not merely to regulate and restrict such practices but absolutely to prohibit them.”[4] Here Prof. Shah had the opinion that State should prohibit such practices which are against the society. He was of the opinion that State should interfere in the practice of religion.
In Sri Adi Visheshwara Of Kashi vs State Of U.P. And Ors [5] K. Ramaswamy, J. said about secularism as “Secularism is the basic feature of the Constitution. The Constitution seeks to establish an egalitarian social order in which any discrimination on grounds of religion, race, caste, sect or set alone is voilation of equality enshrined in Articles 14, 15 and 16 etc. of the Constitution, The tolerance of all religious faiths, respect for each other\u27s religion are our ethos. These pave the way and foundation for integration arid national unity and foster respect for each other\u27s religion; religion faith and belief. Article 15(2), therefore, lays emphasis in that behalf that no citizen shall, on grounds only of religion, race, caste, sect, place of birth or any of them subjected to any disability, liability, restriction or conditions with respect to access to shops, public restaurants, hotels, places of public entertainment or the use of wells, tanks, baths and places of public resorts maintained wholly or partly out of State fund or dedicated to the use of general public” [6] This shows that discrimination on the basis of religion at public palace is not acceptable. The concept of Secular State cannot be discussed without the religion. Therefore, the concept of religion is required to be discussed here.
Concept of Religion
The Indian Constitution does not define religion. J. Patronica de Souza has written about the religion in two folds:
(1) It consists in the individual\u27s right of direct approach to God, and response to God according to conscience, and of adherence to that religious community which in his private judgment shall best minister to his religious and moral welfare.
(2) It consists in the right of a religious community freely to order its own forms of worship and social life for the religious and moral welfare of its members, and to give open witness to the faith which informs its common life.”[7]
.Dr. Sarvepalli Radhakrishnan, said that “religion is a code of ethical rules and that the rituals, observances, ceremonies, and modes of worship are its outer manifestations.”[8] The Supreme Court in Shirur Mutt Case[9] has defined religion in the Indian context. “Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else, but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress.”[10]
Freedom of Religion in Indian Constitution
The Constitution has provision for freedom of religion. Part III from Art. 25 to 28 deals with fundamental right to freedom of religion. Except this, the Preamble of the constitution ensures that the people of India will have freedom of conscience, worship. Art 25 guarantees “to every person not only freedom of religion, belief and conscience but also the right to express his belief in such outward acts as he thought proper and to propagate or disseminate his ideas for the edification of others”.[11] Art. 26 guarantees “to every religious denomination[12] or a section of it, a right to manage its own affairs in matters of religion and the right to establish and maintain institutions for religious purposes”.[13] Art. 27 bans the involuntary imposition of taxes in support of a religion, although there must be a distinction drawn between religion in its doctrinal and ritual features, which is a private purpose, and the administration of public property dedicated to religious reasons, which is a public purpose.[14] Art. 28 (1) forbids religious education in any educational institution supported entirely by public funds. The constraints of Art. 28 (1) would not apply to an educational institution that, while governed by the state, was created under a "endowment" or "trust" demanding that religious instruction be delivered in such an institution, according to Art. 28 (2). Religious education in state-run institutions is prohibited unless voluntary or with the approval of the guardian in the case of minors, according to Art. 28(3).[15]
Dr. B.R. Ambedkar in Constituent Assembly addressing about the relationship between religion and personal laws said that every aspect of life is covered by the religion from grave to cradle. He further stated we are gathered here to limit the definition of religion so that it cannot go beyond such belief and rituals, which are essentially for religion. The religion should not take up the matters related to tenancy, succession. He was against the extensive definition of religion, which cover all aspect of life.[16]
Doctrine of Essential Religious Practice Test
The Supreme Court of India, while giving protection to religious practice adopted the ‘Doctrine of Essential Religious Practice Test’.[17] Doctrine of Essential Religious Practice Test protects only those religious practices, which are sine qua non to the religion in question. In adopting this doctrine, the statement made by first chief justice of the Supreme Court of India [18] can be seen in the judgement of Supreme Court. Kania C.J. had said, jurisprudence and principles laid down by the Supreme Court of USA would be relied in our decision.[19] Mr. Ronjoy Sen believes that ‘essential practice doctrine’ is a derivative discourse of doctrine of ‘justice, equity and good conscience’, which comes from colonial era.[20]
The Shirur Mutt case[21] was the first case on the essential practice doctrine. In this case, the petitioner, “challenged the Madras Hindu Religious and Charitable Endowment (HRCE) Act, 1951, on the principle ground that it infringed the fundamental right given under Art. 26 of the Constitution.” The Supreme Court prior to dealing with the violation of fundamental right discussed in this case to make a distinction between essential matters of religion and not essential matters of religion?’ The Supreme Court has taken the help of Adelaide Company vs. Commonwealth[22] to understand the definition of protection of religion in Indian context and said “the State is competent to impose restrictions under articles 25 and 26 on grounds of public order, morality and health. Clause (2)(a) of Article 25 allows the State to regulate or restrict any economic, financial, political and other secular activities which may be associated with religious practice. Sub-clause (b) of Article make competent the State to legislate for social welfare and reform even though by so doing it might interfere with religious practices”.[23] In this, case the definition of religion given by USA Supreme Court in Davis vs. Beasoan[24] was rejected. To understand in more lucid manner the doctrine of essential practice test the Hon’ble Judge of Supreme Court had given illustration like: “If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or ablations to the sacred fire, all these would be regarded as parts of within the meaning of article 26(b).” Hon’ble judge further states that article 25(2)(a) is not regulation by the State in religious practices as such, but when the freedom of religion guaranteed by the Constitution run against to public order, health and morality then State interferes. Although they are connected with religious traditions, the state governs activities that are economic, commercial, or political in nature”.[25]
About affairs in matters of religion, is a guaranteed fundamental right to religious body it cannot be taken away by any legislation “A religious denomination is entitled to own and acquire property and to administer such property but only in accordance with law. This means that the State can regulate the administration of trust properties by means of laws validly enacted. A law, which takes away the right of administration altogether from the religious denomination and vests it in any other or secular authority, would amount to violation of the right which is guaranteed by article 26 (d) of the Constitution.”[26]
In 1958, the Supreme Court in Mohd. Hanifi Quereshi vs. State of Bihar[27] was called upon to pronounce on the rights of Muslim butchers to slaughter cows; an activity claimed to be part of the Islamic faith. Speaking for a unanimous decision Court S.R. Das CJ rejected the claim and said “that cow slaughter was an ‘essential practice’ of Islam by relying on his own interpretation of the Koran, Hamilton’s translation of the Hedaya explaining the implications of these verses”.[28]
The Supreme Court in Durgah Committee case[29] the Supreme Court has discussed about the protection given under Art. 26. Gajendragadkar J. said “Protection under Art. 26 is confined to religious practices as are essential and integral part of religion. Matters of religion in Art. 26(b) include even practices which are regarded by the community as part of its religion. The practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art. 26. Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Art. 26 may have to be carefully scrutinized; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.”[30]
In Acharya Jagdishwaranand vs Commissioner of Police, Calcutta[31], the Supreme Court was called upon to decide whether performance of Tandava dance by Annand Margis in public procession or at public places is an essential religious practice test. Justice Rangnath Misra said “In the instant case the Tandva dance was not accepted as an essential religious rite of Anand Margis because when in 1955 the Ananda Marga order was established it was not in practice. Later in 1966. Ananda Marga adopted Tandva dance as a part of religious rites. It very much recent. Therefore it is doubtful as to whether in such circumstances Tandva dance can be taken as an essential religious rite of the Ananda Margis”.[32] Here the Supreme Court has taken origin of the religious practice. The Supreme Court while applying the doctrine of essential test had taken time that is origin of practice.
In Gramsabha of village Battis Shirala Vs. Union of India & Ors.[33], in this case sub section 16 of section 2 Wildlife (Protection) Act, 1972 [34] was challenged on the ground that it violates the fundamental right under Art. 25 and 26 of snake charmer to catch snake and show them on Nagpanchmi. The petitioners claimed this is the essential to their religious practice. The Supreme Court has taken the help of a writing by Bharat Ratna Dr. P.V. Kane named as “Dharmashastrcha Ithihas\u27 \u27 which runs in five volume said there was never a practice to catch the live snakes or Indian Cobras and to worship the same as a part of religious practice. Therefore, it is impossible to come to a conclusion that the capturing of live snakes for a temporary period and worshiping live Cobras or snakes on the occasion of Nagpanchmi constitutes essential part of the Hindu Religion. It is impossible to record a finding that the so called practice is an essential practice which is fundamental to follow the religious belief”. Prof. Faizan Mustafa has criticized this judgment and said “the Supreme Court based on the scholar\u27s treatment of the text, the Court held that the act could not have been an essential practice of the petitioners\u27 religion. India is a huge country with huge diversity in the religious and cultural norms of its people. The apex court should have kept this diversity in mind. Neither Hindus nor Muslims nor Christians are homogenous communities. There are Muslim sects, like Khojas and Memons, who follow several Hindu practices. Similarly, the Hindu caste system to some extent is prevalent even among Christians”.[35]
Recently the doctrine of essential practice has been adopted in Triple Talaq case[36]. In this case the Supreme Court held “under ‘Muslim Personal Law, practice of Talaq-e-Biddat or Triple Talaq (that is instant irrevocable, unilateral divorce by husband by formula of pronouncing divorce three times) held as per majority, is not protected by Art. 25 as it is not an essential religious practice. Talaq-e-Biddat or Triple Talaq is against the basic tenets of Quran and thus violates the Shariat”.’[37]
In Sabrimal Temple case[38] the Supreme Court by majority held that "The prohibition on women aged 10 to 50 entering Sabarimala Temple to worship Lord Ayyappa is neither an essential practise or part of religion."
Allowing Hindu women to join a temple as devotees and followers of Hindu religion and present their paryers as to the god is, on the contrary, an essential aspect of Hindu religion."
However, according to devotees of Lord Ayyappa, excluding menstruation women from entering Sabarimala Temple is an important aspect of Sabarimala followers\u27 religion. Dipak According to Misra C.J. and Khanwilkar J., superstitions, dogmas, and exclusionary behaviours must be differentiated from religion\u27s essence.[39]
The Sabarimal verdict has generated lot of controversy on the doctrine of essential practice. A review petition has been filed before the nine judge bench of the Supreme Court, which is still pending. The Supreme Court decides the issue of essentiality can be summarized like firstly, Secular practice of religion should be different from religion; secondly the religious community must consider such practice in question as integral part of religion; thirdly, any practice which comes from superstations belief will not part of the religion.[40].
Conclusion
Prof. Faizan Mustafa has criticized the role of the Supreme Court in applying the Doctrine of Essentiality Test. He said that the working style of Supreme Court on this essentiality test is not as per the spirit of the framers of the Constitution. He said that “The framers of the Indian Constitution, was meant to guarantee freedom to practice one\u27s own beliefs based on the concept of inward association of man with God”. s The Supreme Court has itself acknowledged as much by noting that "every person has a fundamental right . . . to entertain such religious belief as may be approved of by his judgment or conscience . . . .” He said that the constitution maker wanted to give this freedom into the hands of individuals. This essentiality test applied by the judiciary is against this autonomy as “the judiciary assumes the power to decide what the essential or nonessential parts of religious practices are.” Prof. Mustafa made his submission that this action of the judiciary is against its own word where the supreme court while discussing the secular feature of the constitution stated that the State cannot say what is essential or integral part of religion. Moreover, the Supreme Court has itself acknowledged, “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.” The opinion of the Prof. Mustafa is not very convincing to me. As per debate took in Constituent Assembly the constitution makers want to give protection to only those, which are essential to religion, and not comes from superstitious. The interference was inevitable in freedom of religion. It may be in some case the Supreme Court has taken more active participation, which may be not desirable. There is no doubt the reform in religion after independence has been brought by the doctrine of essential practice test. It is necessary that this test should be applied for the identification of essential religious practices.
Bibliography
Smith, D. E. (1967). India As A Secular State, 4th Princeton: Princeton University Press.
Chishti S.M.A.W., (20s04). Secularism in India: An Overview. Indian Journal of Political Sciences, 65 (2), 183-98.
Radhakrishnan S., (1955). Recovery of Faith. New York: Harper Publication.
Rizvi M. M. A., (2005). Secularism in India: Retrospect and Prospects. The Indian Journal of Political Science, 66, 901-914.
Singh R. and Singh K., (2008). Secularism in India: Challenges and its Future. Indian Journal of Political Science, 69, 597-607.
De Souza, J. P., (1952). The Freedom of Religion Under the Indian Constitution. Indian Journal of Political Science. 13, 58-79.
The Joint Committee on Religious Liberty, (1929-1961), Great Britain. <https://archiveshub.jisc.ac.uk/data/gb102-jcrl> [Last Accessed: December 18, 2020].
Radhakrishnan S., (1993). East and West in Religion. London: George Allen and Unwin Limited London.
Jain, M.P., (2016). Indian Constitutional Law, 7th Nagpur: Lexis Nexis.
Seervai H.M., (2013). Constitutional Law of India: A Critical Commentary, Volume 2, 4th New Delhi: Universal Book Trade.
Alexandrowicz, C.H, (1960). The Secular State in India and in the
Going Beyond Counting First Authors in Author Co-citation Analysis
Get PDFThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
Variations on the Author
Get PDF“Variations on the Author” discusses two of Eduardo Coutinho’s recent films (Um Dia na Vida, from 2010, and Últimas Conversas, posthumously released in 2015) and their contribution to the general question of documentary authorship. The director’s filmography is characterized by a consistent yet self-effacing form of authorial self-inscription: Coutinho often features as an interviewer that rather than express opinions propels discourses; an interviewer that is good at listening. This mode of self-inscription characterizes him as an author who is not expressive but who is nonetheless markedly present on the screen. In Um Dia na Vida, however, Coutinho is completely absent form the image, while Últimas Conversas, on the contrary, includes a confessional prologue that moves the director from the margins to the center of his films. This article examines the ways in which these works stand out in the filmography of a director who offers new insights into the notion of cinematic authorship
Appropriate Similarity Measures for Author Cocitation Analysis
Get PDFWe provide a number of new insights into the methodological discussion about author cocitation analysis. We first argue that the use of the Pearson correlation for measuring the similarity between authors’ cocitation profiles is not very satisfactory. We then discuss what kind of similarity measures may be used as an alternative to the Pearson correlation. We consider three similarity measures in particular. One is the well-known cosine. The other two similarity measures have not been used before in the bibliometric literature. Finally, we show by means of an example that our findings have a high practical relevance.information science;Pearson correlation;cosine;similarity measure;author cocitation analysis
Dispelling the Myths Behind First-author Citation Counts
Get PDFWe conducted a full-scale evaluative citation analysis study of scholars in the XML research field to explore just how different from each other author rankings resulting from different citation counting methods actually are, and to demonstrate the capability of emerging data and tools on the Web in supporting more realistic citation counting methods. Our results contest some common arguments for the continued
use of first-author citation counts in the evaluation of scholars, such as high correlations between author rankings by first-author citation counts and other citation
counting methods, and high costs of using more realistic citation counting methods that are not well-supported by the ISI databases. It is argued that increasingly available digital full text research papers make it possible for citation analysis studies to go beyond what the ISI databases have directly supported and to employ more
sophisticated methods
koamabayili/VECTRON-author-checklist: VECTRON author checklist
No full textWe have done our best to complete the author checklist relating to the use of animals in the hut study. Note that the objective for the hut study was to evaluate the IRS treatment applications for residual efficacy against Anopheles mosquitoes, including the local An. coluzzii mosquito population. Cows were only used to attract mosquitoes into the huts and no tests were carried out directly on the cows. The author checklist is intended for use with studies where experiments are carried out on animals, which is why we have had such difficulty in completing this for the hut study, as many of the questions do not relate to how the cows were used
Constitutionality of Disaster Management Act, 2005 on the Touchstone of Federalism During Covid-19 in India
Get PDFAs per 7th Schedule of Constitution of India, 1950 there is sub-division of three lists namely Union list, State list and Concurrent list, which gives a detailed insight of powers of law making with both Centre and State in our country. Due to this both Centre and State have their exclusive domain wherein they can exercise their law-making power. During this exercise of power, which has been so specifically demarcated, can there be dispute of any kind? Answer is yes, Centre has often encroached upon exclusive domain of State subject matters by passing laws on such subject(s). The prominent example of it is the exercise of power under the Disaster Management Act, 2005 which came to be invoked by Centre for issuing guidelines binding on States in light of prevention of global pandemic being COVID-19. Public health and sanitation are a specific field of legislation under Entry 6 of List II, implying that States have exclusive power to legislate upon matters wherein public health is an issue, however despite of that Central Government laid down an array of guidelines during the COVID-19 pandemic directing States to enforce those guidelines. In this article, the main focus will be regarding constitutionality of those guidelines issued by Centre and the interpretation laid down by the Judiciary in regards to similar incidents. Furthermore, the history of enactment of Disaster Management Act, 2005 and how the powers exercised under the guise of it, will be analyzed in order to arrive at a reasonable conclusion in relation to the present issue. Moreover, upon this premise of issuance of guidelines by Centre under the DMA Act, 2005, the Indian Federalism would be discussed upon the touchstone of judgements delivered by Hon’ble Supreme Court in said regard and by briefly comparing same with other federal jurisdictions such as United States. The entire Paper will be a blend of descriptive, historical, comparative and analytical approach
Author-wise bibliometric analysis based on entropy.
No full textAuthor-wise bibliometric analysis based on entropy.</p
- …
