[op-ed snap] Fraught course

Context

A five-judge constitution bench has deferred its decision on the review of the 2018 Sabarimala verdict until a larger bench examines a range of broader issues.

Complications with a larger bench

• • The parameters of review usually permit a narrow reconsideration in case of an error in the verdict or discovery of new evidence. 
  • Apprehensions that the majority judgment could open up new questions go well beyond technicalities. 
  • The court has clubbed together with the question of the entry of women of menstruating age into the Sabarimala temple with others — the entry of Muslim women in the dargah/mosque and of Parsi women married to non-Parsis to the holy fireplace of an Agyari. 
  • Also whether female genital mutilation in the Dawoodi Bohra community constitutes that religion’s essential practice. 
  • It has put together issues that may not belong in the same frame.

Religion vs Fundamental Rights – Constitutional Morality

• • The-seven-judge bench has been asked to find a balance between the right to freedom of religion and other constitutionally-guaranteed rights.
  • It is expected to define “essential religious practice” and “constitutional morality”. 
  • In a large and diverse democracy, spelling out judicial doctrines on these matters removes essential ambiguities. 
  • It also narrows the room for maneuver for them and eventually for justice. 
  • Constitutional morality has been used to emancipatory effect in past cases by the apex court in striking down the restrictions on women of a certain age in the 2018 Sabarimala decision. In another verdict in the same year on decriminalising homosexuality. 
  • The court upheld ideas of freedom and equality and the constitutional promise of a pluralistic and inclusive society while redressing an injustice. 
  • In defining constitutional morality, the court will have to go into the question of its limits and boundaries, its clash with religious beliefs and faith and what is essential to them. 
  • It could not only be tying its own hands for the future but also circumscribing individual freedoms and treading into the clergy’s domain.

Conclusion

• • The court has been inconsistent in applying the essential religious practice doctrine that it evolved in the 1950s. 
  • The court’s push for expanding its remit and for clarity on complex questions is misguided and counterproductive. 
  • In some cases, it is okay to keep to the narrow path, take it case by case.