The opening hearing before a nine-judge Supreme Court Bench , constituted to give an authoritative pronouncement on the nature of religious freedom under the Constitution, has revealed the conceptual confusion over the reference made to it. The Bench, headed by the Chief Justice of India, S.A. Bobde, has asked lawyers to “re-frame” the issues, or add to them, following submissions that the questions framed by a Bench of five judges were too broad. Further, the CJI has clarified that the Court will not be deciding the petitions seeking a review of the verdict in the Sabarimala temple case . Instead, it would limit itself to “larger questions” such as the interplay between freedom of religion and other fundamental rights; and the extent to which courts can probe whether a particular practice is essential to that religion or not. At the same time, he has said, “We will decide questions of law on women’s entry into mosques/temples, genital mutilation among Dawoodi Bohras, entry of Parsi women who marry outside the community into the fire temple. We will not decide the individual facts of each case.” It would be prudent if this approach means that the Bench would set out the limits of the freedom of religion, against which such practices can be tested and their legality determined. However, it would be unwise if the examination of every discriminatory practice becomes a fresh treatise on Articles 25 and 26, instead of being subjected to a simple test whether the particular practice is protected by the freedom of religion, or can be curbed on the grounds of “public order, morality and health”.
A signal flaw in the reference is that it did not emanate from Benches before which these matters were pending. Normally, such issues are referred to a larger Bench only if the Court is faced with apparently contradictory precedents, or feels that the settled law requires reconsideration. A five-judge Bench, while hearing the Sabarimala review petitions, had referred a set of questions to a larger Bench. But two dissenting judges had pointed out that it was up to Benches before which such cases came up to decide whether they should go by existing precedent, or refer the matter to larger Benches for fresh consideration. That the strength of the Bench was fixed at nine may indicate that the court is leaving scope for revisiting the 1954 seven-judge Bench decision in the Shirur Mutt case, holding that religious denominations had the autonomy to decide what religious practices were essential to them. A reconsideration of this “essentiality doctrine” will be useful only if it is a means to rid the court of the burden of entering the theological thicket. However, even without revisiting the judgment, courts have often given verdicts that protect individual rights, and uphold equality and dignity over regressive religious practices.