A five-judge constitution bench has deferred its decision on the review of the 2018 Sabarimala verdict until a larger bench examines a range of broader issues — and thereby led the apex court into uncharted, and potentially turbulent waters. There are technical reasons why reference to a larger seven-judge bench in a review petition is mined with complications. The parameters of review usually permit a narrow reconsideration in case of an error in the verdict or discovery of new evidence. But apprehensions that the majority judgment on Thursday could open up new questions, instead of settling the old, go well beyond technicalities. The court has clubbed together the question of the entry of women of menstruating age into the Sabarimala temple with others — the entry of Muslim women in the dargah/mosque and of Parsi women married to non-Parsis to the holy fireplace of an Agyari, and whether female genital mutilation in the Dawoodi Bohra community constitutes that religion’s essential practice. It is possible to argue that each of these questions must be considered on its own ground, in its specificity. Not content with putting together issues that may not belong in the same frame, the court has gone further, casting on the larger bench a responsibility that may not belong to it.
The-seven-judge bench has been tasked with finding the balance between the right to freedom of religion and other constitutionally-guaranteed rights, especially the right to equality, defining “essential religious practice” and “constitutional morality”. This is a tall order, and not least because in a large and diverse democracy, spelling out judicial doctrines on these matters removes essential ambiguities. It also usurps the space of other players and protagonists, and narrows the room for manoeuvre for them, for the court itself — and eventually, for justice. Of course, constitutional morality has been used to emancipatory effect in past cases by the apex court, not only in striking down the restrictions on women of a certain age in the 2018 Sabarimala decision, but also in another verdict the same year decriminalising homosexuality. In both, the court upheld ideas of freedom and equality and the constitutional promise of a pluralistic and inclusive society, while redressing an injustice, even though its Sabarimala decision was seen by certain sections to rush into grey areas of tradition and its autonomy. Yet in setting itself the task of defining this constitutional morality, the court will now have to go into the question of its limits and boundaries, of its possible clash with religious beliefs and faith and what is essential to them. In the process, it could not only be tying its own hands for the future, but also circumscribing individual freedoms and treading into the cleargy’s domain.
The court has been inconsistent in applying the essential religious practice doctrine that it evolved in the 1950s. Perhaps that is just as it should be. It may be that the court’s push for expanding its remit and for hard clarity on complex questions is misguided and counterproductive. In some cases, it is okay, even just, to keep to the narrow path, take it case by case.
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