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EDITORIAL ANALYSIS : The spirit of the law lies in this dissenting judgment

 

Source: The Hindu, Indian Express

 

  • Prelims: Dawoodi Bohra community, Article 17, Article 26, Chief Justice of India etc
  • Mains GS Paper II: Government policies and interventions for development of various sectors, weaker sections of society and interventions for their development etc

 

ARTICLE HIGHLIGHTS

  • In 1962, the Supreme Court of India, through a 4:1 ruling, firmly placed group rights over individual freedom.

 

INSIGHTS ON THE ISSUE

Context

Dawoodi Bohras:

  • They are Shia Muslims whose leader is known as the Al-Dai-Al-Mutlaq.
  • According to members of the community: There are around 1 million Dawoodi Bohras spread around the world.
  • The leader of the community is recognised by the members as having the right to excommunicate its members.
  • Excommunication means not being allowed to access a mosque belonging to the community or a burial dedicated to the community.

 

Sardar Syedna Taher Saifuddin vs The State Of Bombay:

  • A challenge was mounted by the leader of the Dawoodi Bohra community, the Dai-ul-Mutlaq, to the Bombay Prevention of Excommunication Act, 1949.
  • The law prohibited religious communities from expelling individuals from a group’s membership.
  • The petitioner claimed: this belief was integral to the Dawoodi Bohras’ collective right to religious freedom.
  • The Court declared the law unconstitutional: It held that the Dai’s power to excommunicate was so essential to the group’s faith that a legislation, in the name of social welfare, cannot be allowed to reform a religion out of its existence.

Former Chief Justice of India dissenting in 4:1 verdict:

  • He held that it was immaterial whether the practice of excommunication was essential to religion.
  • CJI wrote: merely carried out the “strict injunction of Article 17” — through which untouchability in any form stood abolished.

 

What did the judgment recognise?

  • A person who had been excommunicated would be disentitled from using the communal mosque and burial ground, and would practically be regarded as an outcast.
  • No other person from the community could have any contact, social or religious, with the excommunicated member.

 

Justice A.S. Oka’s judgment (Central Board of Dawoodi Bohra Community vs The State Of Maharashtra):

Court agreed for merited reconsideration, for reasons:

  • The original ruling had failed to examine whether the rights of religious denominations ought to be balanced with other fundamental rights.
    • Particularly the rights of its individual members to be treated with equal care and dignity.
  • In the years since Sardar Syedna: Indian jurisprudence has evolved.
    • Any act of excommunication ought to be tested on a touchstone of constitutional morality.
  • The Court believed that the issue ought to be resolved by a larger Bench(nine-judge Bench)

 

Judgements and arguments on religious freedom:

  • Former Chief Justice of Canada Beverly McLachlin: No “magic barometer” to measure limits on religious freedom.
    • Inextricable link between religion and social life: denominational rights invariably come into conflict both with laws of general application and with the individual rights of a group’s adherents.
  • Court in Shirur Mutt (1954): It held that only those aspects of religion which are “essential” to faith that deserve constitutional protection.
    • What is essential? It would depend on what devotees to the faith deem as integral to that religion.
  • Court in Tandava dance: Practiced by Anandi Margis.
    • It was inessential to religion even though the sect’s founder expressly mandated the performance of the dance.

 

Rationale behind the guarantee of religious freedom:

  • Members of religious groups must enjoy an ethical autonomy to determine for themselves how best to lead their lives.
  • The Sardar Syedna case: The essential practices doctrine also meant that the Court was sometimes unwilling to strike down a practice that impinged on individual rights merely because the practice in question was essential to faith.

 

The subject of ‘constitutional morality:

  • Article 26: It recognises the rights of religious denominations, “subject to public order, morality and health”.
  • Referring Sardar Syedna to a larger Bench: Justice Oka said that morality today must be understood to mean “constitutional morality”.
  • It must subsume within it the fundamental values supporting the Constitution:
    • The ideas of liberty, equality, and fraternity.
  • Assuming that the excommunication of members of the Dawoodi Bohra community: It is always made on religious grounds
  • The effect and consequences thereof, on the person excommunicated needs to be considered in the context of justiciable constitutional rights.”

 

Freedom of religion in India:

It  is a fundamental right guaranteed by Article 25-28 of the Constitution of India.

  • Article 25: Freedom of conscience and free profession, practice and propagation of religion.
  • Article 26: Freedom to manage religious affairs.
  • Article 27: Freedom as to payment of taxes for promotion of any religion.
  • Article 28: Freedom as to attendance at religious instruction or religious worship in certain educational institutions.
  • Article 29 and 30: deal with the protection of interests of minorities.

 

Way Forward

  • Howsoever essential a practice might be to faith, it cannot be allowed to undermine the dignity of the individual.
  • Discrimination within religious boundaries often breaches those frontiers and tends to impinge on a person’s relationship with the wider world.
  • Autonomy vested in groups over matters of religion is allowed to trump the rights guaranteed to individual members (to be treated with dignity and equal care and concern) the central tenets underlying the Constitution will cave in.
  • The anti-exclusion principle rests on a further axiom: Power equations within religious denominations mean that rules are often enforced by dominant community leaders.
    • It leaves little scope for “cultural dissent”(professor of law, Madhavi Sunder): A law that favors autonomy of the group over the autonomy of the individual will have “the harmful effect over the views proffered by less powerful members of the group.

 

QUESTION FOR PRACTICE

Q. Besides the welfare schemes, India needs deft management of inflation and unemployment to serve the poor and the underprivileged sections of the society. Discuss.(UPSC 2022) (200 WORDS, 10 MARKS)