Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench Hearing [Day 13]
Raju: It is submitted that the majority judgment in Sardar Syedna requires reconsideration on this point, and the minority opinion CJI Sinha must be held to be the correct interpretation of A.25(1) and the correct approach to the question.
J Sinha's dissent: “It is noteworthy that the right guaranteed by Article 25 is an individual right, as distinguished from the right of an organised body like a religious denomination or any section thereof, dealt with by Article 26. "
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."
Raju: It is submitted that the majority judgment in Sardar Syedna requires reconsideration on this point, and the minority opinion CJI Sinha must be held to be the correct interpretation of A.25(1) and the correct approach to the question.
J Sinha's dissent: “It is noteworthy that the right guaranteed by Article 25 is an individual right, as distinguished from the right of an organised body like a religious denomination or any section thereof, dealt with by Article 26. "
Raju: In a case where a denomination seeks to deny the right of an individual to practice their faith, it will become necessary to examine first, whether the denomination’s claim is at all protected by A.26 or whether it is not in fact a matter of religion.
Only if it is established that it is a matter of religion, must there be an examination of the specifics of how and to what extent the individual is seeking to practice their religion- how and to what extent the denomination seeks to prohibit or control the individual’s right; and the consequent impact on other fundamental rights.
Raju: This Court has never declared that a denominational right should be consistently favoured over an individual right to religion, and it is submitted that such an extreme proposition should not be laid down in the present reference. This would seriously prejudice the A.25(1) fundamental right to freedom of religion of an individual regardless of the facts of their case and the degree to which the denomination seeks to infringe their right.
Raju: To lay down any rule which favours a religious denomination’s right above this right would be contradictory to the ideals of the Constitution, which are focused on the individual.
Raju: we are a civilisation under a constitution and therefore nothing which goes againzt grain of constitution can be continuance in a civilised society and that's where court's task come in and it can't throw hands and say there will be so many petitions. where there is a clear violation of fundamental rights or whether there is a clear difference between religion
J Nagarathna: what happens to the civilisations intimately connected to religion. there will be 1000s of petitions for opening closing of the temples etc
J Sundresh: your practice or injury that emanates out of it vis a vis the individual or other persons, there dispute between two entities...everybody will question everything. its more like an inhouse setup where you are saying what you are doing is wrong and the other person will say its absolutely obnoxious. how can court when legislation has been given conscious right under article 25(2)
J Nagarathna: what is unique about india-why are we a civilisation despite plurarity and diversity despite sovereign democractic republic- because what's consistent is the relation of women, men and children with religion. how, why and when religion can be questioned, whether state will do it or whether court will adjudicate its troubling us! India must progress and there is a constant in us which is troubling us
Raju: so my conclusion is
-A practice which is conducted in response to secular and social actions of an individual, or which has significant secular and social consequences for that individual, cannot be the subject of Constitutional protection under A.25 and consequently cannot be a ‘matter of religion’ under A.26
A practice which may have a religious aspect but also significantly and adversely impacts fundamental rights is not immune to restriction under A.25 or A.26
It is the impact of the practice which must be considered by the Court and not simply the stated basis, either historical or religious, to determine the extent of permissible restrictions.
Raju: The practice has to be examined from the point of view of the impact. If the consequence of the practice is secular, affecting the non-religious aspect of a person’s life: they are not limited merely to exclusion from religious activity or practice. They include civil, economic and social consequences: the breaking up of marriages, the separation of close family members, closure of institutions, prohibition from entering burial sites, etc. This is not incidental but deliberate: the excommunication is meant to have a devastating impact on the lives of the victims.