NEED FOR CHANGE IN APPROACH OF INDIAN JUDICIARY WHILE HANDLING CASES RELATED TO FREEDOM OF RELIGION

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Indian constitution follows separation of powers in a flexible manner such that three organs of state can keep a check on each other so that fundamental rights that are guaranteed under Indian Constitution are not violated.  Judicial activism is among such form under with judiciary not only performs function of interpreting the laws but also interferes with sphere of legislature and executive to uplift minority section of society. Now days such approach is frequent in cases related to freedom of Religion under Article 25 of Indian Constitution? On one hand            Indian Constitution gives the freedom to citizens to practise and propagate any religion but on the other hand judiciary can interfere when such rituals are against fundamental rights or health or public morality. For instance Supreme Court evolved the doctrine of ‘Essential Religious Practise ‘in case of The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Tirtha Swamiyar of Shri Shirur Mutt which comes under head of Judicial Activism. The doctrine when evolved by judiciary had a very flexible approach such that all rituals were covered under doctrine which forms the basic tenants of the religion.

With span of time this doctrine has also evolved a strict approach according to intellect of judges while considering different cases as filed before Supreme Court such as Triple Talaq[1] case as well case related to Sabarimala Temple. Now such interference which was first recognized as Judicial Activism a positive approach of judiciary is turning into judicial over reach, a negative approach of Judiciary towards freedom of religion. The former one is a judicial interference which is admissible and required for achieving fair justice but the latter one is misuse of judicial power and in terms of freedom of religion, the people will no longer be guided by the ancient scriptures to practise their religion but by whims and fancies of judges.

Such approach is neither desirable nor admissible as per separation of powers as mentioned under Indian Constitution. Thus there is need to follow an alternative approach while considering cases of Freedom of Religion. Judiciary should play an active role as interpreter of constitution rather than being an intervener in concepts of essential practices to religion. They should interfere only when such rituals or practise is against the principles of Indian Constitution as mentioned under Article 25 and while delivering the judgement they should not define which practise is essential to religion and which is not. Religion is an important element of life and peace would only be retained in society if the interference is in the form of Judicial Activism rather than Judicial overreach.  Thus in order to have freedom of religion as well a secular nation it is required by Judiciary to restrict their ambit of power within the sphere of Judicial Activism.


 

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