Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench Hearing [Day 13]

Raju: After the Fundamental Rights Sub-Committee completed its draft report on the rights to religious freedom on 3 April, 1947, concerns were raised that social reform may be blocked by wide scope of the draft right and the inclusion of the word “practice” in the right to freedom of religion.

Alladi Krishnaswami Ayyar’s concerns that without a specific saving for social reform laws, the freedom of religion clause would override such laws are also recorded in a separate note.

Raju: . It is submitted that if at all there is any dispute as to whether a law under A.25(2)(b) can prohibit a religious practice, reference may be made to the material indicating that the drafters intended for social reform to counter certain religious practices and deliberately introduced a provision - which is now A.25(2)(b) - to permit such reform. I have cited some new material here.

Raju: If it is found that the curtailment of the fundamental right is disproportionate to the actual advancement of social welfare or social reform through the law, the Court may then harmoniously construe the law under A.26(2)(b) along with the fundamental right. The appropriate balance to be struck in this process of harmonious construction would only be determinable on a case-by-case basis.

also refers to davaru

Raju: summarising: The right of an individual under A.25(1) cannot be subordinated to the denominational right under A.26 as a general rule

Article 25(1) protects an individual’s right to freedom of religion against any denominational practice which would penalise such an individual through measures which violate the Constitution.

Raju: The majority in Sardar Syedna did not even consider the contention that by prohibiting a religious and social boycott, the 1949 Act was protecting both the religious right of the individual under A.25(1) and the secular rights against social boycott.

Therefore, it is submitted that the majority judgment in Sardar Syedna does not lay down that a denominational right will override an individual right to freedom of religion where there is a conflict between them.

Raju: On the social aspect of excommunication, one is inclined to think that the position of an excommunicated person becomes that of an untouchable in his community, and if that is so, the Act in declaring such practices to be void has only carried out the strict injunction of Article 17 of the Constitution, by which untouchability has been abolished and its practice in any form forbidden.

this is just on facet and its not based on article 17

Raju: it has further been contended that a person who has been excommunicated as a result of his non-conformity to religious practices is not entitled to use the communal mosque or the communal burial ground or other communal property, thus showing that for all practical purposes he was no more to be treated as a member of the community, and is thus an outcast. Another result of excommunication is that no other member of the community can have any contacts, social or religious, with the person who has been excommunicated.

All that is true. But the Act is intended to do away with all that mischief of treating a human being as a pariah, and of depriving him of his human dignity and of his right to follow the dictates of his own conscience. The Act is, thus, aimed at fulfilment of the individual liberty of conscience guaranteed by Article 25(1) of the Constitution, and not in derogation of it

Raju: denomination cannot claim that the only options available to an individual are to either voluntarily leave the denomination or be subjected to such practice. Such a position is not compatible with the freedom of religion envisaged under the Constitution; religious denominations may have the right to persuade their members to follow certain practices, but they are not permitted to coerce people into following those practices “on pain of a penalty, like excommunication” which violates the Constitution.

Raju: "It was on such humanitarian grounds, and for the purpose of social reform, that so called religious practices like immolating a widow at the pyre of her deceased husband, or of dedicating a virgin girl of tender years to a God to function as a devadasi, or of ostracising a person from all social contacts and religious communion on account of his having eaten forbidden food or taboo, were stopped by legislation.”

It follows that Article 25(1) protects an individual’s right to freedom of religion against any denominational practice which would penalise such an individual through measures which violate the Constitution.

Raju: "Hence, every member of the community has the right, so long as he does not in any way interfere with the corresponding rights of others, to profess, practise and propagate his religion, and everyone is guaranteed his freedom of conscience. The question naturally arises: Can an individual be compelled to have a particular belief on pain of a penalty, like excommunication? One is entitled to believe or not to believe a particular tenet or to follow or not to follow a particular practice in matters of religion.

No one can, therefore, be compelled, against his own judgment and belief, to hold any particular creed or follow a set of religious practices. The Constitution has left every person free in the matter of his relation to his Creator, if he believes in one.

It is, thus, clear that a person is left completely free to worship God according to the dictates of his conscience, and that his right to worship as he pleased is unfettered so long as it does not come into conflict with any restraints, as aforesaid, imposed by the State in the interest of public order, etc."