13th January 2019 : The Hindu Editorials Notes : Mains Sure Shot for UPSC IAS Exam

Note – Today’s article is very important.

It deals with religious liberty guaranteed by the constitution and how at times it conflicts with the individual’s right to dignity and equality.

Question – when the court begins hearing the petitions on the Sabarimala case judgement, does it involve larger questions of dignity, individual rights and community rights? If so, should the courts interfere in religious matters? What is the constitutional stand on this?

Context – The nine-judge bench to review petitions.

Why does this question arise?

The question arises in the context of the Sabarimala temple entry issue.
In this case we can see on the one hand women trying to assert their individual right to freedom, on the other hand the temple group as a community are seeking to continue the ban on women’s entry asserting their collective right to religious freedom.
As said, in the constitution there are two impulses that often conflict with each other.

How?

The first one is that the constitution recognises that India is a land of many diversities where many religions and communities stay together and play an important role in the society. So it guarantees freedom of religion i.e. since there are so many religions and communities, no one can forcefully say anyone which religion to follow. It should be a free choice.
But the constitution gives freedom of religion in two forms – one is right to freedom of religion to individual i.e. as an individual right or right of the individual (Article 25).
And second, it also gives the right to freedom of religion to all communities and religions (Article 26) i.e. a collective right of a community. By collective right it is meant that the community has the freedom to manage its own affairs without any arbitrary interference of any other community.
So in the constitution the right to freedom of religion is given both as an individual right and also as a collective right.
These often come into conflict with one another.

Why?

Because article 26 gives freedom to communities to manage their religious affairs in their own way. (Keep in mind the Sabarimala temple example). At the same time it gives freedom to individuals to practice their religion in their own way.
This is conflicting at times (sabarimala temple entry example) – Sabarimala Temple row is all about the conflict between tradition (collective right) and women’s rights (individual rights).

What is the significance of Article 25 and 26 or why did the constitution drafters put freedom of religion as both an individual right and a collective right?

It is because the Constitution, is practically oriented. It acknowledges that there is a possibility that there may be times when members of religious and cultural communities may need to be protected from authoritarian and oppressive social practices in religion as preached by the religious heads of the community.
Thus, both Articles 25 and 26 are subject to public order, morality, and health. Which means that interpreting article 25 and 26 is pre decided but it depends on the public order, morality and health of the time.
Also, Article 25 is also subject to other fundamental rights guaranteed by the Constitution, (i.e. it sort of gives effects to other fundamental rights guaranteed by the constitution, in case the community becomes authoritative and oppressive against some of its members) and to the state’s power to bring in social reform laws.

How to strike a balance?

How then do we strike a balance between respecting the autonomy of cultural and religious communities and also ensuring that individual rights are not entirely sacrificed at the altar of the community?
Over the years, the Supreme Court has attempted to do so by carving out a jurisprudence that virtually allows it to sit in theological judgment over different practices. It has done this by recognising that it is only those practices that are “essential” to religion that enjoy constitutional protection.
Any other ritual is seen as secular. Which means that the state can interfere i.e. it is amenable to the state’s interference.
In deciding what counts as ‘essential’ to a religion, the Court plays the role of a moral arbiter. It invoked it, for example, to rule, in 2004, that the performance of the Tandava dance was not an essential tenet of the religious faith of the Ananda Margis, even though the followers of the religion conscientiously believed it to be so. Similarly, the Court, especially during the tenure of Chief Justice of India P.B. Gajendragadkar, struck down a number of rituals across religions on the grounds that those practices were embodiments of superstition as opposed to faith.

But was the court competent to make this distinction between ‘essential’ and ‘superstitious’?

Many scholars have argued that it was not because the idea of a secular Court i.e. the courts are secular institutions doesn’t apply if the courts investigate into the nature of religious practice.
But in response, the Court has often stated that the “essential religious practices” test is indeed the only way it can reconcile the two impulses of respecting religious autonomy and enforcing individual rights.

Now if the court has to intervene and decide what is essential and what not, how should it do so? What should be the basis?

One way, for example, would be to ask whether the effect of the disputed religious practice is to cause harm to individual rights. Madesnana, (a 500-year-old ritual performed at the Kukke Subramanya Temple in Karnataka. The practice involves persons, in particular those from Scheduled Castes and Scheduled Tribes, rolling over plantain leaves left behind with food half eaten by Brahmins, in the belief that doing so would cleanse their skin of impurities) for example, is a clear violation of human dignity.

A few years ago, the Bombay High Court found (similarly) that the exclusion of women from the inner sanctum of the Haji Ali Dargah was an indefensible violation of equality.
The enquiry, thus, is not whether the practice is truly religious, but whether its effect is to subordinate, exclude, or otherwise send a signal that one set of members is entitled to lesser respect and concern than others.

An articulation of the anti-exclusion principle would also take into account an important truth. In many religious communities, norms and practices are shaped and imposed from above, by community leaders, and then enforced with the force of social sanction. Dissenters are then faced with an impossible choice: either comply with discriminatory practices, or make a painful (and often unsustainable) exit from the community.

It is here that the Constitution can help by ensuring that the oppressed and excluded among communities can call upon the Court for aid, and by ensuring that powerful communities are not exempt from guaranteeing the basic norms of fairness, equality, and freedom to all their members.

Keeping these points in mind, what is the importance of the Sabarimala temple entry issue today:

When the hearings begin today, therefore, the nine-judge Bench will face a difficult and delicate task of constitutional interpretation. Much will ride upon its decision: the rights of women in particular (a group that has long been at the receiving end of discriminatory practices) and of many other vulnerable groups in general but also, the constitutional vision of ensuring a life of dignity and equality to all, both in the public sphere and in the sphere of community.

Conclusion:

As Alladi Krishnaswami Iyer, one of the foremost drafters of the Constitution says: that in our country, religion and social life are inextricably linked. As the Madesnana example shows us, religious proscriptions often spill over into broader society, and religious and social status often reinforce each other. (simply means that religious customs and traditions have a deep impact on the society and are intricately linked).
A classic example, of course, is that of the practice of “untouchability”, which the Constitution explicitly prohibits.
Another is the practice of “excommunication”, a practice prevalent among certain communities, where the head of the community has the power to expel recalcitrant members, and exclude them entirely from any form of interaction with their former friends or families.
So the constitution is very pragmatic in its approach regarding the right to freedom of religion. By providing both Article 25 and 26, it seeks to leave the scope for judgement and balance when individual and collective rights come into conflict.

Way ahead:

The constitution gives the scope, but it for the courts to answer a series of wide-ranging questions and to expound the scope and extent of the Constitution’s religious liberty clauses.