Preserving the fundamental rights in a deeply religious but evolving society like India has proved to be tough. The judiciary must be hailed for its role in protecting the constitution in this context. Comment. (250 Words)

Mentors Comment:
In the intro, discuss the peculiarities of Indian society wrt to various religions and their different practices and lack of a uniform civil code. This gives breeding ground to tension and confusion. In order to answer these confusions, the judiciary has been time and again interpreting various religious practices under the scope of religious rights provided in the constitution. At the same time, it has given meaning to various religious dilemmas and practices with upholding some and banning some.

In the next part, discuss various judgements that have shown light on religious freedom in India and gave way to progressive thoughts in religious domain.

But lately, the judiciary has been accused of overreaching its mandate in religious judgments. Mention those criticisms too in the answer.

Lastly, discuss what are the ways to improve judicial interventions in religious matters and why the Uniform Civil Code is need of the hours.

Answer:

In India, the life of the people is interwoven with religious practices. Religious freedom as an individual’s right is guaranteed by the Constitution to ‘all persons’ in Articles 25, 27 and 28. Freedom of religion is guaranteed by the Constitution of India as a group right in Articles 26, 29 and 30. To a great extent, religion has regulated domestic and social relations. But religious, practices may be repugnant to commonly accepted social and moral standards of the day. The judiciary in India has been actively involved in adjudicating religious affairs. In the process of reviewing these affairs, it has resolved many religious disputes between the people and the state on one hand, and between various communities, sects, and groups on the other

Role of Judiciary in protecting religious rights:
There have been numerous other rulings explaining the scope and connotation of the religious liberty provisions in the Constitution. Given below is a summary of the major rulings:
In numerous cases, the courts have commented upon, explained an interpreted the provisions of the Constitution on equality, non-discrimination, and religious freedom.
The decisions in most of these cases have been given in the contexts of the rights of particular religious communities or under sped; laws relating to such communities.
According to SC (AS Narayana Deeshitalyu case), the right to religion guaranteed under Articles 25 & 26 is not an absolute or unfettered right; they are subject to reform on social welfare by appropriate legislation by the state.
The SC therefore while interpreting Article 25 and 26 strikes a careful balance between matters which are essential and integral part and those which are not and the need for the State to regulate or control in the interests of the community.
In the SK Mital case, SC ruled that to claim to be a religious denomination a group has to satisfy three conditions: common faith, common organization, and designation by a distinctive name.
In Ramanuj Case, SC opined that a religious denomination has the right to lay down the rites and ceremonies to be performed by its members.
In Stanislaus case, the SC held that the right to propagate religion, guaranteed by Article 25 of the Constitution, should be interpreted as “not the right to convert another person to one’s own religion, but to transmit or spread one’s religion by an exposition of its tenets.”
In the case of Bijoe Emmanuel, the SC held that expelling the children from the school based on their “conscientiously held religious faith” violated the Constitution of India.
In the same case, SC decided that the National Anthem of India is to be duly respected by all but need not necessarily be sung by those objecting to it on religious grounds.
In several cases, the courts have assumed and exercised the power to ascertain if a religious practice followed by any community is indeed an “essential practice” of its religion, holding that only such “essential” practices are entitled to protection under Article 25 of the Constitution that guarantees freedom of both belief and practice of religion.
Recently SC declared the practice of Triple Talaq in the Muslim community as unconstitutional as it violates Art. 14 on grounds of ‘arbitrariness’. SC ruled that personal law does not have precedence over Fundamental Rights. This has opened doors to further progressive reforms.
In January 2016, the Supreme Court of India raised questions on the validity and need of ban on the entry of women in Sabarimala Temple, after a PIL claiming that such a ban cannot be passed under the Constitution of India and is unconstitutional. It has been referred to a constitutional bench and its judgment is about to come.

Criticism of judiciary for overreach in religious practices:
Judiciary has also been accused of judicial activism in religious spheres and sometimes not respecting the belief of a religion or sect while giving judgments.
In judgments like the Hindutva case, the judiciary adopted a narrow approach and avoided some key constitutional issues.
Judiciary privileged community’/religious’ claims over individuals’ constitutional rights.
SC allowed religion to arbitrate over individuals’ civil status and civil rights.
Bombay HC in Narasu Mali case held that uncodified personal laws cannot be challenged for fundamental rights’ violations.
This puts “uncodified personal law” beyond Constitutional oversight.
Therefore there is no relief available in case uncodified personal law violates individuals’ fundamental rights

Way Forward:
Personal laws are of civil nature and civil laws do not forbid any action on the pain of punishment.
Hence these personal laws may be treated as customs and rituals, and the freedom to practice what one believes on a personal basis is well recognized.
But if any dispute arises and the matter comes to the court, those disputes should be settled by an Indian civil code as envisaged by our Constitution.
This code will prescribe equal rights and obligations and permit no discrimination or special rights on the basis of religion, caste, gender or sex.
This will ensure not only full freedom of religion to the individuals but also fulfill the constitutional goal of a Uniform Civil Code.

There was a time in Indian history when religion provided, regulated, and fully controlled the legal and judicial system of the country. Today the situation is the other way round. In the secular India of our times, it is the law of the land that determines the scope of religion in the society, and it is the judiciary that determines what the laws relating to the scope of religion say, mean, and require. Judicial decisions of the higher courts in religious cases of various nature and kinds generally reflect an attitude of objectivity and impartiality.

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