“It is not possible for every Muslim to stop whatever they are doing and pray 5 times a day.”- Naganand Sr.Adv argues on distinction between essential religious practice and culture

SS Naganand, Senior Advocate, appearing for respondents in a case from the PU college today argued that there is a fine line between culture and religion. To support this he said “It is not possible for every Muslim to stop whatever they are doing and pray 5 times? Same thing with brahmins, Sandhay Vandana is to be done 3 times a day, can I excuse myself in the middle of an argument and go to do Sandhya Vandana?”

Naganand argued that not all cultural practices can be construed as essential religious practice. He said “In South India at the time of marriage a certain section of Hindus don’t have the practice of Mangal Sutra. Now in some places it is an essential part of the wedding. This is a cultural practice.” He further argued that Saptapathis is considered an essential religious practice in Hinduism, however there are some communities that do not have this as a practice.

He said “There is a distinction between ERP and a cultural practice that is attached to religion. In Rajasthan women cover themselves with Goonghat, the father in law does not know how the daughter in law looks. This is not the same everywhere.” He argued that an essential religious practice is one where the non-performance of it would lead to consequences as per the religious texts.

R.Venkatramani, Sr.Adv, appearing for some teachers argued that any measure on the part of the State or on the part of the school to bring in a certain discipline and order cannot be condoned by a court of law, as long as there is neutrality. He said “ I appreciate and understand that discipline and order is important both for the teacher and the taught. I am not trying to say Religion A is higher, Religion B is lower. Article 25 recognises all religions are equal.”

He argued that “School stands on a higher footing, it is where people come to learn. I place emphasis order and discipline. the State with bonafide intention, the court will not hold it to subject to strict scrutiny .” He argued that governance is a very heavy subject, only when they commit a breach the court interferes, the court cannot teach the government how to govern.

Venkatramani submitted that to borrow a particular country's jurisprudence (referring to foreign judgments cited by Devadatt Kamat) and apply it to Indian constitution is detrimental. He submitted that none of the judgments placed have the dimension of the public order issue. He argued that the State will not have to be put at a heavy burden to establish what is public order .

He argued that “The proposition that equal right to practice religion does not mean the State will enter into debate on what is religion as long as there is no public order issue. To maintain public order, the state need not consider what is essential religious practice and what is not.” Venkatramani concluded his argument by stating that “ Unless the foreign judgments are in the same constitutional and legal context, the facts are similar to borrow a foreign judgment will be problematic.”

Naganand, Sr.Adv, will continue making his submissions tomorrow (23rd February) at 2.30 PM.

Case title: X Vs State of Karnataka