Roman Saini is teaching live on Unacademy Plus
Women's Position in Indian Society: Landmark SC Verdicts in 2017-18 Lesson- 3 By Dr. Roman Saini
What is Religious Denomination? According to the SC's constitutional bench in Sabarimala case, followers of Lord Ayyappa do not constitute a religious denomination. Article 26 of the Constitution of India guarantees to every religious denomination the right a. To establish and maintain institutions for religious and charitable . b. C. d. purposes, To manage its own affairs in matters of religion; To own and acquire movable and immovable property; and To administer such property in accordance with law. * However, these rights are subject to some restrictions as per Art.25(2)
According to court the expression 'religious denomination' must also satisfy three conditions: . 1. It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, that is, a common faith Common organisation, and 3. Designation by a distinctive name. There is no identified group called Ayyappans. Every Hindu devotee can go to the temple Therefore, the devotees of Lord Ayyappa are just Hindus and do not constitute a separate religious denomination. 2. * .
What are subjects to limit Freedom of Religion? Article 25 (2) states that "nothing in this Article shall affect the operation of any existing law or prevent the State from making any law- 1. . regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus 2.
Hence, to freely profess, practice and propagate religion of one's choice is a Fundamental Right of every citizen guaranteed under the Indian Constitution That is subject only to the following- 1. Public order, . 2. Health, 3. Morality and 4. Other provisions of Part Ill dealing with Fundamental Rights. Except to the above extent, the freedom of religion under the Constitution of India is absolute. .
What is "an essential part/practice of a Religion2 LC According to court, what is meant by "an essential part or practices of a religion" is now the matter for elucidation. What is permitted or not prohibited by a religion does not become a religious practice or a positive tenet of a religion. I1 . . . E ssential part of a religion means the core beliefs upon which a religion is founded. A practice does not acquire the sanction of religion simply because it is permitted. For eg. talaq-e-biddat, exclusion of women from worship places of Hindu and Muslims as well, FMG, etc. can not assume as such. . .
Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices that the superstructure of a religion is built, without which a religion will be no religion. Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part. .
There cannot be additions or subtractions to such part because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts which are protected by the Constitution Assuming the practice of having more wives than one or procreating more children than one is a practice followed by any community or group of people of same faith. The same can be regulated or prohibited by legislation in the interest of public order, morality and health or by any law providing for social welfare and reform which the impugned legislation clearly does. It can not be entitled as essential practice of their religion or faith.
Single Arqument against the Majority Justice Indu Malhotra, the lone woman judge on the Constitution Bench, dissented from the majority opinion in the sabarimala case . o She held that the determination of what constituted an essential practice in a religion should not be decided by judges on the basis of their personal viewpoints. She held that essentiality of a religious practice or custom should be decided within the religion. . It should be a matter of personal faith since "India is a land of diverse faiths". . Constitutional morality in a pluralistic society gave freedom to practice even irrational or illogical customs and usages. *
What prevails law or religion/custom? Therefore, it is clear that the archaic laws/customary practices have long outlived its purpose and does not square with today's constitutional morality. Since, the very object with which they were made has become manifestly arbitrary, having lost its rationale long ago and having become in today's day and age, utterly irrational On this basis alone, the law deserves to be struck down safeguarding these practices for with the passage of time. . * . And Article 14 springs into action and interdicts such law as being manifestly arbitrary