In September 2018, the Supreme Court of India in the Sabarimala Temple Entry Case held that Sabarimala’s exclusion of menstruating women violated the Constitution. Article 25(2)(b) was one of the provisions that was at the heart of judicial and public reasoning around the case.
Article 25 provides that ‘…all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion...’ subject to certain limitations that include legislative attempts at social reform and ‘throwing open of throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus’
Clearly, the framers of the Constitution felt that the social reform legislation should not be constrained by the right to religious freedom. However, a scrutiny of the Committee Stages of the constitution-making process indicates that this was not the case.
On March 26, 1947, the Constituent Assembly’s Sub-Committee for Fundamental Rights drew up the freedom of religion article in the following way:
All Persons are equally entitled to freedom of conscience and the right freely to profess and practise religion in a manner compatible with public order, morality or health.
Explanation I – The wearing and carrying of kirpans shall be deemed to be included in the practice of Sikh religion
Explanation II – The right to profess and practise religion shall not include economic, financial, political or other secular activities associated with religious worship.
Rajkumari Amrit Kaur, a member of the Committee, was not happy. She felt ‘that the clause is defective in as much as it might invalidate legislation against anti-social customs which have the sanction of religion’.
Five days later the Committee prepared a Draft Report in which the right to religious freedom provision still did not contain an exception for social reform legislation.
This made Kaur, along with another member Hansa Mehta, to write a letter to B.N. Rau, the Assembly’s Constitutional Advisor:
‘…As we are are all aware there are several customs practised in the name of religion eg., pardha, child marriage, polygamy, unequal laws of inheritance, prevention of inter-caste marriages, dedication of girls to temples. We are naturally anxious that no clause in fundamental rights shall make impossible future legislation for the purpose of wiping out these evils…’
Kaur and Mehta found an ally in Alladi Krishnaswami Ayyar, an influential member of the Sub-Committee, who also wrote a letter to B.N. Rau: ‘…there is a good deal to be said in favour of what the lady members have urged…’.
Ayyar felt that clause, as it stood, gave a chance for the federal court to view ‘religion and practice of religion’ in a wide sense and this may invalidate existing and stall future social legislation…and ‘…an apprehension of this sort is not ill-founded is clear from section 116 of the Australian Constitution relating to freedom in matters of religious belief and exercise of religion in Adelaide of Jehova’s Witnesses v. Commonwealth…’.
He further added that when the Government of India Act 1935 was being passed ‘a deputation of orthodox Hindus pressed upon parliament to safeguard religious from interference of any kind by the legislature’.
The parliament then did not insert any such provision that was being demanded as it would ‘stand in the way of social and religious reform’. Ayyar seemed to suggest that this kind of disposition had to be adopted and urged Rau to consider drafting and placing a clause into the provision that would protect social reform legislation.
These interventions at the early stages of constitution-making led to the Committee and the Constituent Assembly inserting an exception clause, which after a couple of iterations, settled into the form that exists today as 25(2)(b).
The continuing controversy around the Sabarimala case, the violent protests, the review petitions, all seem to indicate that the problem of balancing religious freedom and religious social reform in India, in spite of the Court’s judgement, is one that will not find resolution any time soon.
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