Fear Of The Judiciary
Author: Merilin Jacob
Designation: TRIP fellow and Academic tutor, Jindal Global Law School
Email ID: firstname.lastname@example.org
Breathing the chauvinistic dismay of dismantled secularism, the institution of justice has fallen into a diabolism of disgusted loathing. The Constitutional pledge of a secular democracy has penetrated into the walls of broken judiciary. Judiciary, being replaced by a violent form of One Nation, One Law has been intoxicated with strains of abhorrence and hate. The judicial system has unqualified power to decide matters concerning secularism. Sooner, “living in fear of the law” will overshadow the hopes of the seven decade endeavor towards independence.
Freedom of religion is the facet of secularism which is an expansive right. Over the years, the highest judiciary has pondered on the relationship between the right to freedom of religion and the right of individuals to dignity and equality. Respecting the autonomy of cultural and religious communities and ensuring that the rights of individuals are not entirely sacrificed at the altar of the community is the domain of secularism. However, the Supreme Court has rendered in a series of judgments the doctrine of essential religious practices. The Shirur Matt case has originally conceived and cultivated the seed of essentiality test in India. It was the result of over enthusiasm of the Supreme Court which ruled that religion will cover all ritual practices integral to a religion. Subsequently, it gave absolute autonomy to the Supreme Court to decide on matters concerning religious rituals.
The practice of Made Snana, a religious ritual involving persons from Scheduled Caste/Scheduled Tribe rolling over plantain leaves left behind with food half eaten by Brahmins, in the belief that doing so, it would cleanse their skin of impurities was struck down by the Supreme Court.
In 2004, the Supreme Court ruled that the performance of Tandava dance was not an essential tenet of the religious faith of the Ananda Margis. Former Chief Justice of India P.B. Gajendragadkar struck down and nullified number of rituals across religions on the ground that those practices were embodiments of superstition as opposed to faith.
In 2018, when the Supreme Court allowed entry of women into the Sabarimala temple, a massive public outcry was initiated by the people in Kerala.
The practice of Female Genital Mutilation which is a manifestation of deep rooted gender equality that assigns women an inferior position has been considered by the Supreme Court. In many rulings, the Supreme has been conferred as the savior of the Constitution. But, whether the Courts are competent to identify the essential religious practices from non-essential religious practices is a question to consider.
When the Constitution was drafted, the framers established India’s identity of secularism grounded on the notions of liberty, equality and neutrality.
However, the spate of numerous judgments ruled by the Supreme Court underlined the idea that the judicial intervention on religious matters constitute a threat to secularism. When petitions regarding the right of entry of Muslim women in Mosques sprawl up, the doctrine of belief has been tarnished.
There was a time in Indian history when religion provided, regulated and fully controlled the legal and judicial systems of the country. But today, it is the law that determines the scope of religion in the society. It is the judiciary that determines the scope of religion. Will courts be ever aristocratic in nature?