Sabarimala Reference | Correct Test Is If Religious Belief Is Bona Fide, Not If It's Essential : Rajeev Dhavan To Supreme Court

In the Sabarimala Reference hearing yesterday, Senior Advocate Rajeev Dhavan argued that the doctrine of essential religious practice is dangerous because Courts are asked to decide whether a religious practice is essential or not at the very threshold. He clarified that he is not against judicial review of religious freedoms. Instead, he suggested that the correct test under Articles 25 and 26 should be whether a belief is bona fide or not, instead of whether it's essential. He cited the Bijoe Emmanuel v. State of Kerala (1986), where the Court protected the children following Jehovah's Witnesses who refused to sing the National Anthem.Dhavan made this argument before a nine-judge bench hearing the Sabarimala reference, which raises larger issues having an impact on other religious faiths.At the outset, he argued that the Supreme Court was incorrect when it held that the ban on the entry of menstruating women to the Sabarimala temple was not an essential religious practice. According to him, the correct test was the one followed by Justice Indu Malhotra(sole dissenter) that whether a belief was "genuinely" and "conscientiously" held by the person claiming it, as held in Emmanuel.Dhavan cited an English case R. (Williamson) v Secretary of State for Education and Employment, which held that the limited inquiry that the Court can go into is into the genuineness of the claimant's professed belief.Justice Nagarathna asked if the Court couldn't go into the rationality of a belief in judicial review, to which Dhavan answered in the affirmative.On the interpretation of Articles 25 and 26Dhavan submitted that the right of freedom of conscience under Article 25(1) is wide enough to encompass almost everything. Justice Nagarathna asked: "Are you saying conscience is something larger than religion?"Justice Amanullah also asked for a clarification on how to interpret religious and conscience. He said: "You said freedom of religion and conscience has a very wide proposition. Are you hinting that, as judges or as constitutional courts, religion and conscience can't be equated? Religion may be very personal to me, but when I have to judge, I have to rise above the religious consciousness to a level where I have to balance it with constitutional provisions and see the larger picture emerging from that."Dhavan responded that the Court will have to interpret consciousness ultimately. Additionally, Senior Advocate argued that the words "nothing in this article" used in Article 25(2) are meant to ensure that the individual rights protected under Article 25(1) don't come in the way of social reform."What does 'nothing in this article' mean. It means everything. It means individual rights can't stand in the way of social reforms. You can't come up and say that under Article 25(1), I have this right, and this reform is not acceptable to me. Otherwise, the entire provision of Article 25(2) would be negatived."Whereas, for Article 26, Dhavan stated that it's the most essential institutional right without which no religion can survive."What will we do without Article 26? All religions will be doomed... It is the most important right for the sustenance of religion across time...If you don't give autonomy to manage religious institutions, all these institutions will fail. That is the important part of the word manage because if it's a religious institution, you have to manage all religious autonomy."On this, Justice Bagchi asked: "Will you agree that managing religious affairs under article 26(b) is congruent not on the individual or institution but on activity with the words freely, practice, propagate religion?"Dhavan responded that he would not subject Article 26's application to Article 25. He explained that Article 26 may take colour from Article 25, but it doesn't necessarily require it to be subjected to Article 25 because the former is only subjected to "public order, morality and health".To this, Justice Bagchi questioned: "If your arguments are accepted, then the subordination of individuals with the words 'subject to other provisions' as well as a more definitive with legislative enabling powers of Article 25(2)(b) would be rendered nugatory by the individual professing the same right through the institution under Article 26(b)."He also asked that if the legislature brings a statutory reform under Article 25(2)(b) and if Article 26 is held as a separate inassaliable island, wouldn't that negate social reforms. To this, Dhavan responded that the solution is to integrate both provisions and to interpret them using the doctrine of proportionality. But he said that he doesn't agree with the law laid down in Sri Venkataramana Devaruand Others vs The State Of Mysore And Others(1958) judgment to the extent that it held Article 26(b) will be subject to Article 25(2)(b). "When we say subject to, it's a very powerful statement, and here I distance myself from Devaru. The judgment made Article 26 subject to Article 25. It is a...

Sabarimala Reference | Correct Test Is If Religious Belief Is Bona Fide, Not If It's Essential : Rajeev Dhavan To Supreme Court

Gursimran Kaur Bakshi

Dhavan also argued that a superstitious belief has protection under Article 25, though its external manifestation can be subject to riders on public order, morality, or health.

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