SUPREME COURT TO EXAMINE ‘LARGER ISSUES’ IN RELIGIOUS PRACTICES
Context: A nine-judge bench of the Supreme Court on 13th January has said it will examine the larger issue of faith-based customs violating fundamental rights of women.
It will also lay down guidelines for judicial scrutiny of petitions raising issues relating to clash of faith with fundamental rights.
- The Bench would examine the legality and essentiality of religious beliefs which prohibit women from entering into mosques and temples; which allow genital mutilation by Dawoodi Bohras and which ban Parsi women who married inter-faith to enter the fire temple.
- The Bench, however, clarified that it would not go into the legality of issues such as the practice of polygamy and ‘nikah-halala’ in Islam.
- On November 14, the five-judge Bench led by then Chief Justice Ranjan Gogoi, instead of deciding the Sabarimala review entrusted to it, sought an “authoritative pronouncement” on the Court’s power to decide the essentiality of religious practices.
- Framing seven questions, the Bench referred them to a seven-judge Bench. These referral questions included whether “essential religious practices” be afforded constitutional protection under Article 26 (freedom to manage religious affairs).
- Chief Justice Bobde, who succeeded Justice Gogoi, formed a Bench of nine rather than seven judges to examine these referred questions which concern multiple faiths.
- But senior lawyers have said the Supreme Court cannot decide on the essentiality of religious practices.
- It was outside its jurisdiction. This Court cannot tell how religion is to be practiced.
- They drew the Bench’s attention to the Shrirur Mutt judgment
THE SHIRUR MUTT JUDGEMENT
- According to the Shrirur Mutt judgment of the Supreme Court of 1954 the essentiality of religious practices should be decided in accordance with the religious doctrines of each faith.
- The Supreme Court has limited power of judicial review.
- The 1954 judgment held that any regulation could only extend to religious practices and activities which were economic, commercial or political in their character.
LAW AND RELIGION IN INDIA
- During colonial times, the British largely followed a policy of non-regulation of personal law, leaving communities free to manage their own internal affairs
- 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.
- The absence of legal regulation, however, did not impede strong social movements within religious and other communities.
- These movements focused upon two principles: individual freedom and choice within community spaces, and the right to social and political inclusion and participation.
INDIVIDUAL RIGHTS V/S COMMUNITY RIGHTS
- There were repeated attempts in the Constituent Assembly to insulate personal laws from State interference by making them a part of the right to freedom of religion.
- But regarding this Ambedkar specifically argued that it wasn’t merely the State, but the social system, i.e., the community, whose actions conflicted with individual rights and would accordingly have to be “reformed”
- Unlike the freedom of religion, a quintessentially individual right, this move would have established group supremacy over the individual in certain crucial matters, such as marriage, divorce, inheritance, and even property transfers.
- The Constituent Assembly’s decisive rejection of these proposals indicates clearly that the attempt to establish groups as constitutive normative units in the Constitution failed.
- Laws need to be reformed to match the comprehensive transformative character of the Indian society.
- We need a transformative interpretation of Articles 25 and 26 of the Indian constitution.
- Essential practices test which ascertains what constitutes the essential part of a religion according to the tenets and doctrines of that religion itself need to be examined.
- Even Justice Chandrachud in the Sabarimala case had agreed that the ERP, in its present form, was unsustainable
- Group rights and group integrity should be guaranteed to the extent only that religious groups do not block individuals’ access to the basic public goods required to sustain a dignified life.
Do you think the doctrine of essential religious practices is unsatisfactory in its present form. Why? (15 marks)
When there is a direct conflict between the individual and the community rights which one should be given primacy? Why? How does the Indian constitution address this issue? (20 marks)