Value Added Article: When the Judiciary Rewrites a Faith | Category – Polity and Governance | Source – The Hindu

Relevance: GS Paper II (Polity and Governance)

Source:

The Hindu - Chrome IAS


Theme of this article

If a community believes in, and establishes a religious practice as essential, it should be accepted.


Why has this article cropped up?

The Supreme Court’s majority decision in the Sabarimala case has rewritten the constitutional dispensation on freedom of religion, equality and untouchability, in contrast to Justice Indu Malhotra’s no-less-admirable dissenting judgment.


The history of laws related to religious endowments

  • British-era laws espoused the need for a trust-like structure, with a pointed effort to control corruption in religious institutions, as reflected in pieces of legislation like the Religious Endowment Act, 1863; the Charitable Endowments Act, 1890; and the Civil Procedure Code.
  • The Union government’s Report of the Hindu Religious Endowments Committee (1962) worked out a plausible strategy for a fair administration of these endowments without disturbing their religious integrity.
  • From 1950 to 2018, the Supreme Court has dealt with approximately 90 decisions on conflicts between Hindu endowments and pieces of legislation to control them.

Constitutional protection

Endowments are institutional vehicles through which religions define and perpetuate themselves. These are protected by Articles 25-28 of the Constitution — those dealing with religious freedom, social welfare and reform.


Supreme Court’s intervention in religious affairs since independence

  • From the Shirur Mutt case (1954) to now, the Supreme Court has been concerned with testing whether and where these laws infringed upon the guaranteed rights of management, belief, practice and propagation (Article 25, 26).
  • The advent of these statutes resulted in ‘nationalisation’ of religion and of the major Hindu and Buddhist temples of India.
  • The Supreme Court’s strategy was two-fold:
    • to protect the essential practices of the faith; and
    • balance this against the insistent exigencies to control the practices.
  • The court ruled some faiths as not religious at all — as happened to the creed practised by the followers of Sri Aurobindo.
  • The court also ruled in some cases that certain practices were not ‘essential’ to a faith — for instance, the tandava dance practised by the the Ananda Margi people.
  • From the 1950s, the Supreme Court has also been using the word ‘integral’ while ruling on religious practices. In the Kashi Vishwanath Case, (1997), Justice K. Ramaswamy held that ‘integral nature’ was an additional test for ‘essentiality’. This would cut down the scope for religious freedom.

Should judiciary make interpretations differ from that of religious instns

  • If a community bona fide believes in, and establishes the existence of a practice as essential, it should be accepted.
  • Any other interpretation by the judiciary would amount to rewriting the faith.
  • It is not for the Supreme Court to tell people what their bona-fide faith is.

The Sabarimala case

  • The Sabarimala case (2018) concerned the admission of women aged between 10 and 50.
  • The denial was based on the primary argument that Lord Ayyappa was celibate and that women of the age of fertility were not permitted to a temple devoted to him.
  • The majority view by the Supreme Court was that denial of entry to women was not a ‘denominational’ or an ‘essential practice’; Article 17 applied and constitutional morality included equality and gender justice.
  • However, Justice Indu Malhotra dissented.
    • She asserted that even if religious beliefs and practices are not accepted as rational by all, there is no reason to deny them constitutional protection.
    • She maintained that the ambit of abolition of untouchability, as mandated under Article 17, cannot be taken beyond ending of discrimination against Scheduled Castes and Scheduled Tribes.
    • She said that broadening the provision to include all forms of social ostracism would amount to diluting the protection available to Dalits and tribal people.
    • Most of all, she pointed out that even if we accept constitutional morality as a limitation, this argument was circular in that constitutional morality includes both equality and the right to religious freedom. She said the social reform provisions required specific legislation not enacted in this case.

Conclusion

Though Justice Indu Malhotra struck the balance in favour of religious freedom, she could have considered this in the context of public morality, and not constitutional morality, to come to a different conclusion. Having said that, her judgment seems more correct than that of the majority.


 

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