By Satya Prakash
Justice delivery often goes much beyond the set boundaries of law as the issues involved might require delving into abstract ideas of faith, belief, religion, spirituality, sexuality and morality.
Given the limited tools that the Constitution provides, judges in India are increasingly finding it difficult to deal with issues related to religion and gender which have reached the Supreme Court in recent years.
Be it Ayodhya, Sabarimala age bar on women’s entry, adultery, homosexuality, transgender issue or right to privacy — the top court appeared to be at its wit’s end.
The 3:2 split verdict of a five-Judge Constitution Bench on petitions seeking review of its September 2018 verdict allowing women of all age groups to enter Lord Ayyappa Temple at Sabarimala in Kerala exposes the chasm in judicial thinking at the top.
At the core of the debate is the relationship between religion and the State in a secular democracy premised on certain fundamental principles enunciated under the Constitution. More than the degree and extent of legislative, executive or judicial intervention, the question being asked is if at all the State should interfere with essential practices of any religion.
It’s in this context that the majority’s decision to enlarge the scope of Sabarimala review petitions and refer seven issues to a seven-Judge Bench assumes significance, for it’s no more limited to Hinduism.
Discriminatory practices in other religions — entry of Muslim women in a durgahmosque, of Parsi women married to a non-Parsi into the holy fireplace of Agyari and female genital mutilation in Dawoodi Bohra community — too have come under judicial scrutiny.
“It is time that this court should evolve a judicial policy befitting to its plenary powers to do substantial and complete justice and for an authoritative enunciation of the constitutional principles by a larger Bnch of not less than seven Judges. The decision of a larger Bench would put at rest recurring issues touching upon the rights flowing from Articles 25 and 26 of the Constitution,” the majority verdict penned by the CJI noted.
Religion has existed since time immemorial and pre-dates the modern Indian State – a constitutional entity which is less than seven-decade-old. Much before India became a constitutional democracy, it had been a land of spiritual democracy which nurtured diverse religious practices and sheltered religious minorities persecuted in their home countries.
Article 25, which guarantees fundamental right to religion, authorises the State to make laws to regulate or restrict economic, financial, political or other secular activity associated with religious practices as also for social welfare and reform or throwing open Hindu religious institutions of public character to all classes and sections of Hindus.
Article 26, which confers on every religious denomination or any section thereof a fundamental right to its religious affairs, is aimed at ensuring religious diversity and pluralism that has been a part of its spiritual tradition.Together, these provisions represent a social contract between religion and the State and draw a ‘Lakshman rekha’ for the State by restricting it to financial and secular affairs of a religion. The only caveat is that a religious practice should not violate fundamental rights of citizens.
Now, a seven-Judge Bench would examine the ambit of interplay between freedom of religion under Articles 25 and 26 and other fundamental rights and determine the extent of “public order, morality and health” under Article 25(1). It would also attempt to define “morality” and indicate if it is over-arching morality in reference to the Preamble or is limited to religious belief.
But the most important question to be determined by the larger Bench is the extent of courts’ enquiry into a particular practice being an integral part of a religion or religious denomination and whether it should be left to be determined by the religious group’s head.
Whether “essential religious practices” of a religious denomination or a section thereof are protected under Article 26 and can courts entertain PILs against religious practices filed by persons not belonging to such religious denomination too would be examined. This is important in view of the fact that the PIL that led to the September 2018 verdict in Sabarimala case was filed by a Muslim lawyer.
Justice Indu Malhotra, the lone woman Judge on the Constitution Bench, had in her 2018 dissenting verdict said, “Judicial review of religious practices ought not to be undertaken, as the court cannot impose its morality or rationality with respect to the form of worship of a deity.”
On the other hand, Justice Chandrachud had taken an extreme position in 2018 and equated the Sabarimala practice with untouchability while the other three judges on the majority side had described it as form of discrimination.
More than the constitutionality of religious practices in question, it’s the Supreme Court’s ability to devise a universally acceptable yardstick to judge such issues which has been put to test.
from The Tribune https://ift.tt/2QsQiId
via Today’s News Headlines
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