Insights into Editorial: Supreme Court not to review Sabarimala case, to examine ‘larger issues’
Supreme Court said its objective was not to review the Sabarimala women entry case but examine “larger issues” of law arising from practices such as the prohibition of women from entering mosques and temples, female genital mutilation among Dawoodi Bohras and the ban on Parsi women who married inter-faith from entering the fire temple.
To examine ‘larger issues’:
The opening hearing before a nine-judge Supreme Court Bench, constituted to give an authoritative pronouncement on the nature of religious freedom under the Constitution, has revealed the conceptual confusion over the reference made to it.
The Bench, headed by the Chief Justice of India has asked lawyers to “re-frame” the issues, or add to them, following submissions that the questions framed by a Bench of five judges were too broad.
Further, the CJI has clarified that the Court will not be deciding the petitions seeking a review of the verdict in the Sabarimala temple case.
Instead, it would limit itself to “larger questions” such as the interplay between freedom of religion and other fundamental rights; and the extent to which courts can probe whether a particular practice is essential to that religion or not.
Instead, the Bench would examine the legality and essentiality of religious beliefs.
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.
Faiths vs Rights case:
While the five-judge bench unanimously agreed to refer religious issues to a larger bench, it gave a 3:2 split decision on petitions seeking a review of the apex court’s September 2018 decision allowing women of all ages to enter the Sabarimala shrine in Kerala.
According to court;
- Every citizen has equal rights in religious matter, we can’t discriminate them on the basis of caste, race, gender etc, according to Article 15 of the constitution.
- Assures protection to every religious denomination to manage its own affairs.
- Can’t not stop women due to their biological cycle.
Indian Constitution Articles with respect to above case:
The bench while referring the matter to a larger bench had broadly mentioned seven questions of law to be examined. They are:
- the interplay between Article 25 (Right to profess religion of choice) and 26 (Right to manage religious affairs) of the Constitution;
- the meaning of the expression ‘sections of Hindus’ in the Constitution;
- the need to delineate the expression ‘constitutional morality’ or ‘morality’;
- whether ‘essential religious practices’ of a denomination or section are protected under Article 26;
- the extent to which courts can enquire into religious practices; the meaning of the expression ‘public order, morality and health’; and
- the permissible extent of judicial recognition to public interest litigations in matters calling into question religious practices at the instance of people who do not belong to the particular religious denominations.
Article 26: Freedom to Manage Religious Affairs
Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—
- to establish and maintain institutions for religious and charitable purposes;
- to manage its own affairs in matters of religion;
- to own and acquire movable and immovable property; and
- to administer such property in accordance with
Article 14 : Equality Before Law
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Article 25 : Freedom of Religion
The Article 25 states that every individual is “equally entitled to freedom of conscience” and has the right “to profess, practice and propagate religion” of one’s choice.
Practicing religion or the act of propagating it should not, however, affect the “public order, morality and health.”
The Article doesn’t put any restriction on the government when it comes to making any law to regulate “economic, financial, political or other secular” activities, which may be associated with religious practice.
According to Article 25, the gates of Hindu religious institutions should be opened to every section of Hindus.
Here the term ‘Hindus’ also includes individuals who profess Sikh, Jain or Buddhist religion. The same holds true for the term ‘Hindu religious institutions.
There are issues raises of serious questions about faith and practices of a religious denomination or sect.
Therefore, it is time to evolve a judicial policy to do substantial and complete justice.
Every state and person have right to possess their religion but this possession should be fair, without discrimination and untouchability. There should be measure to protect constitutional provision and also individual freedom be respected.
The core values of our democracy and India civilisation are respect for diversity among the enormous range of communities cohabiting in India with substantial differences (as well as commonalities) in matters of faith, cultural practices, value systems, family structure, dress codes, food habits and ways of relating to the world as well as the divine.
This mutual respect for differences in ways of being, worship, singing, dancing, clothing, cooking, and so on is what enabled the rich diversity of India to survive through millennia.