The Supreme Court’s determination to refer the Sabarimala temple case to a bigger 7-judge Bench reopens not solely the debate on permitting ladies of menstruating age into the Ayyappa temple however the bigger challenge of whether or not any faith can bar ladies from coming into locations of worship.
The bigger Bench reference may also re-evaluate the “essential religious practice test”, a contentious doctrine developed by the court docket to guard solely such religious practices which had been important and integral to the faith.
The court docket clubbed two instances — a decade previous problem by two Parsi ladies who married exterior the group to enter the Tower of Silence and different religious locations, and a plea searching for entry of Muslim ladies into mosques.
The majority opinion in the 2018 Sabarimala verdict had mentioned that girls have a basic proper to equality in accessing public locations which incorporates locations of worship.
However, since the Sabarimala verdict will primarily be heard afresh, the constitutional debate on gender equality will open up as soon as once more.
The evaluation provides the ‘devotees’ and the Sabarimala temple authorities who’ve battled the Supreme Court verdict a foot in the door to have the verdict probably overturned.
What is the Supreme Court’s doctrine of essentiality?
The doctrine of “essentiality” was invented by a seven-judge Bench of the Supreme Court in the ‘Shirur Mutt’ case in 1954. The court docket held that the time period “religion” will cowl all rituals and practices “integral” to a faith, and took upon itself the duty of figuring out the important and non-essential practices of a faith.
Last 12 months, a Supreme Court Bench by a 2-1 majority declined to refer for reconsideration by a bigger Bench the five-judge Constitution Bench judgment in ‘Dr M Ismail Faruqui and Ors vs Union Of India and Ors’ (October 24, 1994), which upheld the legislation underneath which the Centre acquired the disputed land in Ayodhya on which the Babri Masjid had stood.
The Constitution Bench had dominated in 1994 that “A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open.”
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How has the doctrine been used in subsequent years?
The ‘essentiality doctrine’ of the Supreme Court has been criticised by a number of constitutional consultants.
Scholars of constitutional legislation have argued that the essentiality/integrality doctrine has tended to guide the court docket into an space that’s past its competence, and given judges the energy to determine purely religious questions.
As a outcome, over the years, courts have been inconsistent on this query — in some instances they’ve relied on religious texts to find out essentiality, in others on the empirical behaviour of followers, and in but others, based mostly on whether or not the practice existed at the time the faith originated.
In an article written earlier for The Indian Express, the famous professional of the Constitution, Prof Faizan Mustafa, identified the following cases:
* In the starting, the court docket engaged with the query of whether or not untouchability, manifested in restrictions on entry into temples, was an “essential part of the Hindu religion”. After analyzing chosen Hindu texts, it got here to the conclusion that untouchability was not a necessary Hindu practice.
* Writing the five-judge verdict in ‘The Durgah Committee, Ajmer and Anr vs Syed Hussain Ali and Ors’ (March 17, 1961), Justice P B Gajendragadkar added the ‘secular’ requirement of rationality to the essentiality test. Durgah Committee denied validity to “practices (which) though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself”.
* In ‘Gramsabha of Village Battis Shirala vs Union of India and Ors’ (2014), a selected sect relied on the Shrinath Lilamrut to say earlier than the Bombay High Court that capturing and worshipping a dwell cobra throughout the Nagpanchami competition was a necessary a part of their faith. The court docket, nonetheless, put reliance on Dr P V Kane’s Dharmashastracha Ithihas, which referred to the common Hindu practice, to reject this rivalry.
* In a case the place a Muslim police officer challenged in Kerala High Court a regulation that didn’t allow him to develop a beard, the court docket, reasonably than the query of essentiality of beard in Islam, rejected the petitioner’s plea by merely counting on the undeniable fact that sure Muslim dignitaries don’t sport beards, and that the petitioner didn’t have a beard in his earlier years of service. The court docket checked out empirical proof of the practice, reasonably than at religious texts. However, regardless of empirical proof to the opposite, courts have denied safety to the animal sacrifice amongst Hindus, terming the practice as barbaric.
* In the First Ananda Margi case, the apex court docket relied on the doctrine of precedent to carry that tandava dance was not a necessary practice of the Ananda Margi religion. It additionally mentioned that the religion had come into existence in 1955, whereas the tandava dance was adopted solely in 1966 — due to this fact, as the religion had existed with out the practice, the practice couldn’t be accepted as a necessary function of the religion.
Prof Mustafa identified that the thought of offering constitutional safety solely to these parts of faith which the court docket considers “essential” is problematic in as far as it assumes that one aspect or practice of faith is impartial of different parts or practices.
So, whereas the essentiality test privileges sure practices over others, it’s, in truth, all practices taken collectively that represent a faith.
How does essentiality sq. up in opposition to religious freedom?
Freedom of faith was meant to ensure freedom to practice one’s beliefs based mostly on the idea of “inward association” of man with God.
The apex court docket in ‘Ratilal Panachand Gandhi vs The State of Bombay and Ors’ (March 18, 1954) acknowledged that “every person has a fundamental right to entertain such religious beliefs as may be approved by his judgment or conscience”. The framers of the Constitution wished to provide this autonomy to every particular person.
Scholars resembling Prof Mustafa have argued that the essentiality test impinges on this autonomy. The apex court docket has itself emphasised autonomy and selection in its Privacy (2017), 377 (2018), and Adultery (2018) judgments.
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