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Extent of State control over individual and groups on Freedom of Religion

Extent of State control over individual and groups on Freedom of Religion. Dr. Sudhir Krishnaswamy 9 th March, 2019 ISBR Law College. Recent Supreme Court Cases. Decided Shayara Bano v. Union of India (Triple Talaq ) Indian Young Lawyers Association v. State of Kerala ( Sabarimala )

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Extent of State control over individual and groups on Freedom of Religion

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  1. Extent of State control over individual and groups on Freedom of Religion Dr. Sudhir Krishnaswamy 9th March, 2019 ISBR Law College

  2. Recent Supreme Court Cases Decided • ShayaraBano v. Union of India (Triple Talaq) • Indian Young Lawyers Association v. State of Kerala (Sabarimala) • Goolrokh Gupta v. BurjorPardiwala(Parsi Excommunication) On-going • M Siddiq v. Mahant Suresh Das (Ayodhya) • SunitaTiwari v. Union of India (Female Genital Circumcision)

  3. Triple Talaq Case CORE CHALLENGE: Talaq–e–biddat is un-Islamic and unconstitutional. ISSUE: Is it an Essential Religious Practice (ERP) protected under Art. 25? OUTCOME: 3:2 majority invalidated the practice

  4. Sabarimala Temple Entry CORE CHALLENGE: Excluding women in menstruation age cycle violates their rights to freedom of religion and equality ISSUES: • Does the custom constitute an ERP? • Do Ayyappans form a separate religious denomination under Art.26? • Are ERPs subject to the morality restriction under Arts.25&26? OUTCOME: 4:1 majority struck down custom

  5. Female Circumcision Question, reference order to CB: Whether the Dawoodi Bohra practice forms an ERP? AM Singhvi, counsel for DawoodiBohras: • sought Constitution Bench referral • defended practice as ERP via continuous usage test • female khatna traces back 1400 years

  6. Ayodhya Dispute In 2018, the 3 judge bench in a split 2:1 verdict held that Ismail Faruqui1994 does not require reconsideration by a larger 5 judge bench. Ismail Faruqui upheld that mosques are not an essential feature of Islam and allowed State to acquire land at Ayodhya Justice Nazeer’s Dissent – • sought 5 judge Bench reference • Review Faruqui on essentiality of mosques • Cites Shirur Mutt: essentiality must be determined with “detailed examination of tenets, beliefs and practices of Islam” (internal inquiry & not Court-based external inquiry)

  7. Parsi Excommunication • CORE CHALLENGE: Goolrokh Gupta approached the Court so that she may enter the Fire Temple and perform last rites. The ParsiAnjuman Trust had excommunicated her when she married a non-Parsi. • ISSUE: Can a group’s religious right to excommunicate (Article 26) subsume the individual right to practice religion (Article 25)? • OUTCOME: The parties reached a settlement – the ParsiAnjuman Trust allowed the petitioner to enter to perform last rites. The Constitution Bench never made any ruling on the issue.

  8. Looking Ahead • The Ayodhya dispute is first case where the ERP test will been applied in an inter-faith dispute. Is the ERP test even applicable in cases such as Ayodhya, where there is a competing claim to a resource, premised on so-called essential religious practices? • Does the ERP test inherently preference scriptural, homogenous, long-standing religions? • Are only ‘rational’ religious practices protected by the Constitution? • Do the Courts preference a monotheistic conception of religion? A strict interpretation of the 3-step test, when determining whether a group constitutes a religious denomination, appears to encourage the assimilation of smaller religions into large ones. • Are group rights under the Constitution an end in itself or a means to better protect individual right?

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