FREEDOM OF RELIGION: INTERVENTION OF SUPREME COURT ON THE LIBERTY OF RELIGIOUS RIGHTS

The Authors of this blog are Prateek Singh & Ritik Kanoujia, B.A LL. B. 2nd Semester students of National Law University, Jodhpur.

INTRODUCTION

“Religious liberty might be supposed to mean that everybody is free to discuss religion. In practice, it means that hardly anybody is allowed to mention it.”

-G.K. Chesterton

In Indian jurisprudence, the Preamble to the Constitution of the Republic affirms that India is a secular state and the ideologies set out by the Preamble are accomplished through subsequent provisions in the Constitution. The right to freedom of religion, which is covered under Articles 25-28, provides religious freedom to all citizens with the objective to sustain the principle of secularism in India. Article 25 of the Constitution promotes freedom of conscience and free profession, practice and propagation of religion. Whereas Article 26 helps manage religious affairs, which is subjected to public order, morality and health, every religious denomination, or any section.

RECENT LANDMARK JUDGEMENTS

India is a land of disputed religious rights, the Supreme Court constantly adjudicates over religious practices and policy matters to ensure public order, morality, and health. But many times, the judiciary went along the lines of controversies to protect the religious rights of that sector community. Judiciary encompasses harsh steps to resolve the disputed religious law to maintain public order, which most of the time upset that religious community. The actions of the judiciary overweight other fundamental rights of the religious community to ensure public order. Considering some of the recent landmark judgments of the court in light of protecting religious rights

SABARIMALA JUDGEMENT

In 1990, a petition was filed in the Kerala High Court seeking a ban on entry of A inside the Sabarimala temple. Further, in the year 1991, the Kerala High Court had upheld the restriction of women of certain age entry inside the holy shrine of Lord Ayyappa. On 28th September 2018, the Constitution Bench delivered its judgment and in a 4:1 majority, the court ruled that Sabarimala's exclusion of women violated the fundamental rights of women between the ages of 10-50 years and Rule 3(b) of the Public Worship Rules was unconstitutional. The judgment was considered to be a path-breaking judgment as it recognizes the right to equality and liberty.

RAMJANAMBHUMI JUDGEMENT

The engagement of the Supreme Court in the matter of the disputed land of Ayodhya was considered as one of the most glorifying and the path-breaking judgments of all time. In this case, the Supreme Court of India awarded the long-time disputed land to the Hindu community. The judgment marks significance because there comes a long time tussle and social rifts regarding the land. The rationale was mainly based on the reports of the Archaeological Survey of India.

AZAAN JUDGEMENT

In the matter of Azaan judgment, the High Court of The Allahabad High Court has held that again, or the Islamic call to ritual prayer can only be recited by the help of human voice only without using any amplifying devices or loudspeakers. The reciting of the azaan through the loudspeaker is banned in order to curb excess noise pollution.

NIKHIL SONI V. UNION OF INDIA

The Honorable High Court of Rajasthan held that the procedure of attaining salvation through Santhara in Jainism was illegal and declared it as equal to suicide.

BEHIND THE CURTAINS

Though the Judgements of the Supreme Court and High Court look apt and just on the papers it holds a massive dissent behind the curtains. Starting with the case of Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors, the Supreme settled the judgment with the ratio of 4:1, with Indu Malhotra's decision of refraining the women to enter the Sabarimala judgment. Going through Religious lines, the lord Ayyappa is considered a lord because he practiced celibacy – the determination brought him the stature of a God. He dissociated himself from women as this might disrespect his principles. That is why if women were refrained from entering the temple. This judgment was widely criticized by the followers of the lord. In the rationale, Justice Indu Malhotra understood the gravity of religious practice and thus quoted that “To entertain PILs challenging religious practices followed by any group, sect or denomination could cause serious damage to the constitutional and secular fabric of this country”. Furthermore, the reasoning behind this rationale is the ‘applicability of Article 25’ of the India Constitution.

Coming forward to the judgment of Ramjanambhumi, the court took the right decision to award the disputed land to the Hindu but it created controversies because the review petition against the judgment does not get a fair chance to get a hearing in the open court. While on the other hand the review petition for the Sabrimala judgments was accepted. This promoted suppression and neglected the atrocities against the minorities. Furthermore, it is a matter of great concern that the United States Commission on International Religious Freedom (USCIRF) recommended India’s designation to “Country of Particular Concern” (CPC) in its 2020 Annual Report despite harboring a rich cultural history and employing fairly extensive measures.  The report emphasizes how the disparity in the religious right was rendered in today’s time. This is the first time since 2004 that India has been recommended as a CPC by the USCIRF.  

In the judgment of Nikhil Soni v. Union of India, the High Court of Rajasthan declared Santhara as illegal but this step of the judiciary was widely criticized by the various Jain communities and followers. The judgment led many silent marches and unacceptability by Jainism. The unacceptability of Santhara was not from the end of the society only but was also seconded by many eminent Democrats and bureaucrats as well. Moreover, the judgment in the Azaan case was also strongly condemned by the Muslims as they believe it to be a part of the Islamic call to ritual prayer. The speaker in the azaan is necessitated in order to gather a prayer. Although, curbing the religious right and sentiments, the courts again practiced and got biased toward a definite sect or community as loudspeakers are also commonly used in Bhandaras and Langars or in Marriage ceremonies.

It was believed that the judicial lines were unable to equate the primordial practice of religion. The Supreme Court also curbed the movement of Digambar Jain monks and Hindu Naga Sadhus without clothes. While we look upon the Section 294 of the Indian Penal Code, 1860 which restricts obscenity in the public place as it may be annoying to someone but on other hand, the Constitution of India also provides us with the fundamental right to manage one’s own religious affairs under the purview of Article 26. Article 13 also ensures that law inconsistent or in derogation with the fundamental rights shall to a certain extent, be declared as void. Furthermore, scrutinizing the golden triangle, we could also conclude that the fundamental law of the land stands at a higher pedestrian when it is compared to the statutory laws. Though, an individual has the full liberty to practice and manage their religious rights without any obstruction or intervention of any institution.

CONCLUSION: A WAY FORWARD

The law was derived from society and society nominates the legal stature to govern them with peace and faith. It was believed that religion was sacrosanct and an intrinsic part of society. In India, people are deep down attached to the roots of faith and religion. While adjudicating the matters related to religion, the court should have to understand the graveness of the matter and religious beliefs. The courts at the supreme level have to look upon the historical background and have to follow the faith. Moreover, the courts should not practice applying the textual knowledge of the law and should follow up on the middle path along with sentiments and faith to reach the desired destination. Our Constitution was framed at the time of colonial rule and was not in consonance with the religious beliefs rather it follows westernization, to which India is not apt.

The alteration in the religious procedure will not allow a religion to be religious anymore. From a diplomatic standpoint, the judicial pronouncements on religious matters should be derived from the history of the land and the belief of the certain sector community. The faith of the mass should not be curbed in order to deliver judgment against the faith of the religion.