The Spirit of the Law lies in this dissenting judgment

Context: 

The article has thrown light on the debate around how the rights of religious groups are balanced with the rights of its adherents.

Related Cases:

Sardar Syedna Taher Saifuddin vs The State Of Bombay case

• In this case, the court declared the law unconstitutional. It held that the religious leader’s power to excommunicate was so essential to the group’s faith that a legislation, in the name of social welfare, cannot be allowed to reform a religion out of its existence.
• Thus, in 1962, the Supreme Court of India firmly placed group rights over individual freedom. 

Central Board of Dawoodi Bohra Community vs The State Of Maharashtra case

• In 2023, the Court, through Justice A.S. Oka’s judgment agreed that the 1962 verdict merited reconsideration for two reasons. 

• • First, the original ruling had failed to examine whether the rights of religious denominations ought to be balanced with other fundamental rights.
  • Second, in the last few years, Indian jurisprudence has evolved to a point where any act of ex-communication ought to be tested on a touchstone of constitutional morality. 
• Given these failures, the Court believed that the issues involved ought to be resolved by a larger Bench, in this case by a nine-judge Bench.

Debate in the Indian context:

• In the words of the former Chief Justice of Canada Beverly McLachlin, there is no “magic barometer” to measure limits on religious freedom. But given the inextricable link between religion and social life — especially stark in India — denominational rights invariably come into conflict both with laws of general application and with the individual rights of a group’s adherents.
• Doctrine of essential religious practices: The Court, in the Shirur Mutt case(1954) held that it was only those aspects of religion which are “essential” to faith that deserve constitutional protection. 
• Determining what is essential, depends on what devotees to the faith deem as integral to that religion.
• However, theological authority and interpreted religious scriptures to determine which practices were, in fact, central to faith.
• Such an approach undermined the elementary rationale behind the guarantee of religious freedom.

Effects of excommunication:

• A person who had been excommunicated would be disentitled from using the communal mosque and burial ground, and would practically be regarded as an outcast and this would amount to a violation of Article 17 which abolished untouchability in any form.
• The religious groups are vested with rights so that independent members can come together to fulfill collective desires. At the heart of this guarantee is the individual. Hence, cannot be allowed to undermine the dignity of the individual.

The subject of ‘constitutional morality’:

• Article 26 recognises the rights of religious denominations,  with reasonable restrictions that its promise would be “subject to public order, morality and health.
• Morality is within it the fundamental values supporting the Constitution: among them, the ideas of liberty, equality, and fraternity.

• The effect and consequences on the person excommunicated needs to be considered in the context of justiciable constitutional rights.
• The power equations within religious denominations mean that rules are often enforced by dominant community leaders. This leaves little scope for the “cultural dissent” term described by Madhavi Sunder.
• The dissenting judgment in Sardar Syedna rests on similar foundations. When the nine-judge Bench searches for answers to the questions posed to it, it will do well to form the brooding spirit of the law.

 News Source: The Hindu