The Secular Court and the Freedom of Religion
How far must courts in India go in interpreting matters of religious faith? Should judges at all be concerned with religion? These questions have plagued the Supreme Court almost right through our independent history. The Court’s response has invariably veered towards interventionism. Look around the globe and almost no secular court of law rules on theological creeds and canons. But, in India, the judiciary has time and again engaged in an analysis of this kind, and has determined the contours of religious faith. The Court has held that it is only those practices that are essential to the practice of a religion that are constitutionally protected, and that judges can, on an examination of facts, determine which practice is essential and which is not.
This exercise of an almost-ecclesiastical jurisdiction clearly sits uneasily with the idea of a secular judiciary. But the alternative cannot be an abdication of any consideration that touches upon matters of faith. In a country like India, where religion and social life are so deeply intertwined there will always be clashes between claims predicated on religious autonomy and claims concerning rights to dignity and equal treatment. These conflicts can often seem inextricable. But there are ways to resolve them in a manner where fidelity is maintained with the Constitution’s goals and ambitions.
The talk will endeavor to chart the development of the essential practices doctrine, where it’s gone wrong, and what the solution ought to be.
Suhrith Parthasarathy is an advocate practising at the Madras High Court. He is a graduate of the National University of Juridical Sciences, Kolkata, and he also has a graduate degree in journalism from Columbia University, New York. Suhrith’s litigation practice is primarily focused on public law and taxation. He is also a regular contributor to the op-ed pages of The Hindu newspaper.