4th Feb 2020 – Times of India

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4th Feb 2020 – Times of India

“Challenge for SC: To address religious matters case by case or frame big questions that help answer each dispute.”

A nine-judge Supreme Court bench poised to frame issues for deliberation regarding discrimination against women in various religions and at places of worship has a tough task at hand. Created upon reference from a bench hearing review petitions in the Sabarimala judgment in November last year, senior advocates led by Fali Nariman claimed the references were misplaced. Besides Sabarimala, its sole remit, the review bench had made references on separate writ petitions regarding entry of Muslim women into mosques, denial of worship rights to Parsi women married to non-Parsis, and female genital mutilation in Dawoodi Bohra community.

Like the Sabarimala dispute heard by SC at great length before arriving at a decision in September 2018, the other three matters also require detailed hearings. Religious issues are complicated by varying interpretations among theological scholars, constitutional freedoms, vested community interests and patriarchal mindsets. Technicality aside, SC may still decide to address some issues suggested by the referring bench like the interplay of Article 25 (freedom to practise religion) with Article 26 (freedom to manage religious affairs). Another issue is the extent to which court can enquire into particular practices for violations of equality (Article 14).

Answering these “larger questions” could offer guidance to courts in years to come. Conversely, deciding laws in anticipation of future cases or preempting them may not be conclusive given fractious politics and complicated social responses. In Sabarimala, a sizeable Hindu section believed women entry endangered Lord Ayyappa’s celibacy vows and took militant positions paying no heed to the SC verdict’s progressive, gender-just tenor and state government attempts to enforce it. Justice Indu Malhotra’s minority dissent had presciently noted that equality in matters of religion “must be viewed in the context of worshippers of the same faith” and is conditioned by essential beliefs.

Deliberating on the larger questions instead of looking at each issue like female genital mutilation (FGM) or temple/mosque entry separately poses a tricky challenge for SC. The answers to the big questions on faith and equality will have great implications for the country while treating each religious issue in isolation is a more incremental, manageable approach. Far more harder will be the task of applying the conclusions arrived at by SC to each matter given how complex societal realities have rendered many well-intentioned laws and judgments ineffective or failures. India will be watching keenly the ongoing SC hearings.