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Is Indian law on the freedom of religion flawed? Critically comment.

Topic: Indian Constitution – features, amendments, significant provisions and basic structure; basics of cyber security

1. Is Indian law on the freedom of religion flawed? Critically comment. (250 words)

The Hindu Centre

The Hindu Centre

Why this question:

The Supreme Court has referred to a 7 judge- bench a clutch of review petitions challenging its September 2018 verdict allowing entry of women of all age groups into the Sabarimala temple. The Supreme Court’s majority opinion recently in the Sabarimala review petitions, which opens up the possibility of a reference to a larger bench, is bizarre and deeply problematic.

Key demand of the question:

One must explain how the verdict in the Sabarimala review petitions could also be seen as an opportunity for a larger bench to examine the entire gamut of jurisprudence on the relationship between faith and the judiciary.

Directive:

Critically comment – When asked to comment, you have to examine methodically the structure or nature of the topic by separating it into component parts and present them as a whole in a summary. When ‘comment’ is prefixed, we have to express our knowledge and understanding of the issue and form an overall opinion thereupon.

Structure of the answer:

Introduction:

In brief highlight the details of the recent verdict.

Body:

Explain the various observations made by the court:

  • Restrictions on women in religious places are not limited to Sabarimala alone and are prevalent in other religions too. The issue of entry of women into mosques and Agiyari could also be taken by the larger bench.
  • Both sections of the same religious group have a right to freely profess, practise and propagate their religious beliefs as being integral part of their religion by virtue of Article 25 of the Constitution of India.

Discuss about the pros and cons of the judgement with respect to Gender justice.

Discuss the various facets of religion and constitution:

  • The Constitution does not define ‘religion’. It does not shed any light on how courts are to deal with the myriad questions that arise from the interaction between law and religion. How then are constitutional courts to deal with such issues?

Then finally argue that how the verdict in the Sabarimala review petitions provides the Court with a rare opportunity to settle a particularly troubling area of its jurisprudence. Against this background, this article seeks to analyse the Constitutional provisions with regard to the freedom of religion and the judiciary’s interpretation of these articles. It argues that existing jurisprudence and the use of the ‘essential religious practices’ test is patchy and needs serious reconsideration.

Conclusion:

Conclude with way forward.