Context

While extending the scope and extent of the freedom of religion, the SC would face the difficult question of balancing it with the other provisions and rights enshrined in the Constitution.

What the 9-Judge bench will deliberate on?

• The establishment of the Bench emanated out of an order of reference made on review petitions filed against the Sabarimala judgment.
• The scope and extent of religious liberty: It will answer a series of wide-ranging questions and expound the scope and extent of the Constitution’s religious liberty clauses.
• It will also deliberate on cases including the practice of female genital mutilation and the rights of Parsi women to enter fire temples.

The question of balance

• Within the Constitution of India, there are two impulses that may, at times, come into conflict with one another.
• First impulse-Religious freedom: India is a pluralist and diverse nation, where groups and communities — whether religious or cultural — have always played an important role in society.
  • Religious freedom: Following up on this impulse, the Constitution recognises both the freedom of religion as an individual right (Article 25), as well as the right of religious denominations to manage their own affairs in matters of religion (Article 26).
• The second impulse-Protection of an individual: The second impulse, recognises that while the community can be a source of solidarity at the best of times, it can also be a terrain of oppression and exclusion.
  • So, both Articles 25 and 26 are subject to public order, morality, and health.
  • Article 25 is also subject to other fundamental rights guaranteed by the Constitution, and to the state’s power to bring in social reform laws.

Finding the middle ground

• The middle ground involves respecting and balancing the following-
  • The autonomy of communities: It involves respecting the autonomy of cultural and religious communities.
  • Individual rights: It involves ensuring that individual rights are not entirely sacrificed at the altar of the community.
• Essential practice doctrine: Over the years, the Supreme Court has found the middle ground by carving out a jurisprudence that virtually allows it to sit in theological judgments.
  • What is constitutionally protected? It recognising that it is only those practices that are “essential” to religion that enjoys constitutional protection.
  • Any other ritual is seen as secular and amenable to the state’s interference.
  • This doctrine was used to rule, in 2004, that the performance of the Tandava dance was not an essential tenet of the religious faith of the Ananda Margis.
  • The SC said that the “essential religious practices” test is indeed the only way it can reconcile the two impulses.

Anti-exclusion principle

• What are the options with the SC?
  • Continue with the “essential practice” doctrine: One option before the nine-judge Bench would simply be to affirm existing jurisprudence, as it stands.
  • Anti-exclusion principle: The second option would be to ask whether the effect of the disputed religious practice is to cause harm to individual rights.
  • 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.
  • In Sabrimala case — both the concurring opinion of Justice D.Y. Chandrachud and the dissenting opinion of Justice Indu Malhotra agreed that this ought to be the test.
• Protection of dissenters
  • Top-down nature: 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 exit from the community.
  • Judicial intervention: It is here that the Constitution can help by ensuring that the oppressed and excluded among communities can call upon the Court for aid.

Conclusion

• 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 and of many other vulnerable groups in general.
• Also will depend on its decision the constitutional vision of ensuring a life of dignity and equality to all, both in the public sphere and in the sphere of community.

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