The Irish Origins of "religious denomination" in Article 26 - Legal Notes by Arvind Datar

Bar & Bench November 21 2018
Legal Notes By Arvind Datar, GST

Arvind P Datar

The expression “religious denomination” in Article 26 has been the subject matter of several Supreme Court decisions including the latest judgment of the Constitution Bench on the Sabrimala controversy. The present article gives an interesting legislative history and does not deal with the merits of Sabarimala judgment as it is now pending before the Supreme Court for review. 

It is interesting to note that Article 26 is derived from Article 44 of the Irish Constitution, 1937.  This Article 44, in turn, was based on Article 114 of the Constitution of Poland, 1921. From 1937 to 1972, the term “religious denomination” in Article 44.1.3 specifically enumerated denominations like the Methodist Church of Ireland, Presbyterian Church in Ireland, and Jewish Congregations and so on.  The original article read as follows:-

ARTICLE 44 

I

  1. The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion. 
  2. The State recognises the special position of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith professed by the great majority of the citizens.
  3. The State also recognises the Church of Ireland, the Presbyterian Church in Ireland, the Methodist Church in Ireland, the Religious Society of Friends in Ireland, as well as the Jewish Congregations and the other religious denominations existing in Ireland at the date of the coming into operation of this Constitution.

II

  1.  Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.
  2. The State guarantees not to endow any religion.
  3. The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.
  4. Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.
  5. Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes. 
  6. The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation. 

There was a referendum in Ireland in 1972  and the Fifth Amendment to the Irish Constitution (containing this change) amended  Article 44.  The referendum was approved by 721,003 votes to 133,430 votes.  Article 44 was thus amended and the reference to individual denominations in Articles 44.1.2 and 44.1.3 were deleted.  

Therefore, the Article which was before the Constituent Assembly of India was the 1937 version.  In the Constituent Assembly, KM Munshi requested that the phrase which was being adopted from Irish Constitution should include “any sections thereof”.   Thus, the rights under Article 26 were made available to any “religious denomination or any section thereof” .

The expression “religious denomination” is thus of Judeo-Christian origin and was used in the sense of clearly defined denominations that prevail in Christianity.  In the context of Hinduism, there has been any notion or concept of clearly defined religious denominations.  Indeed, it has been repeatedly stated that Hinduism is not a religion but a way of life. There are no sub-divisions of this religion into different and distinct components. In Commissioner, HR & CE v LT Swamiar, the Supreme Court adopted the meaning of the word “denomination” as given in the Oxford Dictionary (as existed at that time) and propounded a three-fold test viz.

  1. It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, that is, a common faith; 
  2. Common organization; and 
  3. Designation by a distinct name.

In fact, the current definition of the word “denomination” in the Oxford Dictionary is different from what is quoted in the Swamiar decision. In para 15 of Swamiar, it is observed as follows:

The word denomination has been defined in the Oxford dictionary to mean a collection of individuals classed together under the same name; a religious sect or body having a common faith and organization and designated by a distinctive name.

On the other hand, the present definition of “denomination” in the Oxford Dictionary is quite different: “a recognized autonomous branch of the Christian Church; a group or branch of any religion”.

After this judgment, various courts have been called upon to decide whether a particular group was a denomination on the basis of the three-fold test.  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.   It is submitted that this method of applying the above test and classifying a group as a denomination only if it satisfies all the three tests is an unsatisfactory way to recognize religious groups amongst Hindus.

In Yagnapurushdasji v Muldas, Chief Justice Gajendragadkar referred to the Encyclopaedia of Religion and Ethics, Vol. VI, which has described “Hinduism”as: “the title applied to that form of religion which prevails among the vast majority of the present population of the Indian Empire”. 

The learned Judge then went on to observe: 

When we think of the Hindu religion, we find it difficult, if not impossible, to define Hindu religion or even adequately describe it.  Unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not worship any on God; it does not subscribe to any one dogma; it does not believe in any of the philosophic concept; it does not follow any one set of religious rites or performances; in fact, it does not appear to satisfy the narrow traditional features of any religion or creed.  It may broadly be described as a way of life and nothing more.”

Thus, if the Hindu religion is merely a way of life, it is then difficult to require followers of this religion to be classified as denominations only if they have a common faith or common organization or a distinct designation.   The complex nature of the Hindu religion and the philosophic concepts involved therein, the relationship of the Upanishads, Brahmasutras and the Bhagavad Gita have all been discussed in detail by Chief Justice Gajendragadkar.   Finally, he observed that the working formula given by Lokamanya Tilak may be regarded as fairly adequate and satisfactory:

“Acceptance of the Vedas with reverence; recognition of the fact that the means or ways to salvation are diverse; and realization of the truth that the number of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religion (11-A).”   

It will thus be seen that while the Christian religion is broadly divided into distinct denominations or groups, as had been enumerated in the Irish Constitution,  the Hindu religion did not have such denominations or groups except a broad classification like followers of Shiva or followers of Vishnu and so on.

It is also interesting that while the founding fathers adopted the Irish concept of “religion denomination”, they did not use that expression either in Article 25 or in Schedule VII of the Constitution of India.   In Article 25(2)(b), the Constitution enables laws to be made to throw open Hindu “religious institutions” of a public character to all classes and sections of Hindus.   It is also significant that while Entry 34 of the Provincial Legislative List of the Government of India Act, 1935 did not have the expression “religious institutions”, its replacement as Entry 28 in the Concurrent List of the Indian Constitution did.   Entry 34 of the Government of India Act, 1935 and Entry 28 in List III of Schedule VII of the Constitution of India read as follows:-

Entry 34: Charities and charitable institutions, charitable and religious endowments.

Entry 28: Charities and charitable institutions, charitable and religious endowments and religious institutions.

While Article 26, on a literal interpretation, confines itself to religious denomination, it is submitted that the rights prescribed therein must extend to religious institutions and any sections thereof.  It cannot be denied that religious institutions can own and acquire immovable property and be entitled for other rights mentioned therein. Perhaps, it is time to have a relook at the scope of the words “religious denomination” in Article 26.   Hopefully, this may be done at the time of the review petition in the Sabarimala case.   

 

The author is a Senior Advocate and practices before the Supreme Court.

 

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