Haji Ali verdict is correct but the reasons cited for it are flawed, says the noted legal expert, Prof. Faizan Mustafa

By Timesheadline Staff  Writer

‘Essential practices’ of religions in the past have been decided without any reference to the scriptures and dogmas of concerned religions. They are based on earlier judicial decisions. The essential practices test has proved to be the biggest deterrent to freedom of religion in India. It does not have any constitutional basis. The Constitution of India provides protection to religion as a whole subject to restrictions and not just to essential elements of a religion”.

These views were expressed by the noted legal expert, Prof. Faizan Mustafa, Vice Chancellor of Hyderabad-based NALSAR University of Law. He was delivering a lecture on “Freedom of Religion, Secularism and “Haji Ali” Verdict at the Faculty of Law, Jamia Millia Islamia, New Delhi.

Dwelling on the legal terminology ‘essentiality test’, he commented that ‘there has been inconsistency in the use of this ‘judicially invented test’ and that this has proved to be the biggest deterrent to freedom of religion in India. “The judiciary was wrong in privileging certain religious practices over others and there have been inconsistencies in the use of judicially invented ‘essentiality test’, Prof. Mustafa said.

Prof. Faizan Mustafa discussed, at length, as to how the Supreme Court of India has interpreted religion and its essential features over a period of time. Addressing a mixed gathering of scholars, students and faculty members of the Jamia, he stated that the “essential practice test of a religion evolved by the Apex  Court was unconstitutional and does not promote secularism”. He explained that the whole concept of providing constitutional protection only to those elements of a religion that the court considers ‘essential’ is tricky.

Substantiating his viewpoint, he cited the most recent instance of the Bombay High Court verdict permitting women full entry into the sanctum sanctorum of the Haji Ali Dargah. He averred that the SC’s verdict is correct but the reasons cited for it were flawed. “How can the writ petition be filed against a Trust and how the case could be incorrectly argued before the High Court”?, he questioned the Haji Ali verdict.

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