Key question before Sabarimala review hearing: Right to equality versus religious freedom
Right to equality and freedom of religion, both are fundamental rights guaranteed by the Constitution. But these rights appear to be competing for precedence in the view of controversies surrounding entry of women at certain places of worship including Sabarimala Temple, fire temples of Parsis and mosque as well as the issue of genital mutilation among Bohra Muslims.
The nine-judge bench of the Supreme Court on Monday began hearing not on petitions challenging the Sabarimala verdict of 2018 but on the issues referred to it by the bench constituted hear the bunch of review pleas.
The Sabarimala review bench had referred to a range of questions to a seven-judge constitution bench to settle the legal debate on the scope of freedom of religion. The Chief Justice of India set up a nine-judge bench instead.
There seems to be a “clash” between fundamental rights guaranteed by the Constitution. Fundamental rights under Articles 14 and 15 seem to be competing with those under Articles 25 and 26 — Article 26 in particular.
The key question that the Supreme Court’s nine-judge bench has to provide answer for is this: Which fundamental right takes precedence over the other in such cases where two fundamental rights appear to be competing and conflicting in application?
Articles 14 and 15 guarantee an individual the right to equality in all matters including access to public places. Article 14 declares that the state shall not deny any person equality before the law or equal protection of laws in India. This right is available to everyone including the foreigners and even a corporation or a company.
Article 15 says there cannot be any discrimination among citizens (not foreigners) on the grounds of religion, caste, sex or their place of birth.
Articles 25 and 26 ensure freedom of religion to everyone in India. Article 25 guarantees every person the freedom of conscience and gives her the right to freely profess, practice and propagate any religion. This is the fundamental right that allows even a foreigner to carry on religious missionary activities in India.
Article 26 gives the freedom to manage religious affairs, guaranteeing individual as well as collective freedom of religion. The only restrictions to the right to religious freedom are public order, morality, and health. There is no mention of this right being subject to provisions relating to other fundamental rights.
So, is right to religious freedom absolute or right to equality is more fundamental?
“If you go by pure jurisprudence, then the right to religious freedom should take precedence over the right to equality,” Supreme Court lawyer Atul Kumar told Indiatoday.in.
“However, no rights as guaranteed in Part III of the Constitution is absolute. They are rather subject to reasonable restrictions and they are inter-dependent also, and therefore we need interpretations of these Articles in the given context,” Kumar said.
“In plain reading of the Articles may look like competing with and conflicting to each other, but in reality, in its deeper understanding and interpretation, they supplement each other. Right to religious freedom is more fundamental and emanates from right to equality too-equal protection of law,” Kumar elaborated further.