Right to Religion Vis-A-Vis Constitutional Morality: An Analytical study with special Reference to Sabarimala Case

Abstract

The right to religious freedom has always been surrounded by controversies, conflicts and confusion; be it in India or elsewhere. The reason behind this maybe the fact that even if, ideologically, we desire a society wherein religion is separated from laws so that the orthodox principles of religion may not impede the process of development and progress of a society, practically the demarcation between religion and politics is not possible; as was observed by Mahatma Gandhi. The law makers, administrators and decision makers, although supposed to be neutral or impartial, are mere humans and it is in human nature to be influenced to certain degrees by their thought process and opinions. In such a scenario, how can religion stay apart from the realities of society when from the beginning of conscience in human beings, religion has always stayed interwoven with our day-to-day lives and has occupied a major portion of it. However, when it was decided that time has come to separate legal principles from religious ones, guarantee of freedom of religion was felt a necessity in order to establish a tolerant, neutral and egalitarian polity in which everyone will have equal freedom of following their own religious faiths and beliefs without any fear of persecution. In this direction, the preamble to the Constitution of India, from the beginning, has declared the liberty of thought, expression, belief, faith and worship to all its citizens. These have been guaranteed by the provisions relating to right to freedom of religion under Articles 25 to 28. It was made more obvious by inserting the word “Secular” in the preamble by the 42nd Constitution (Amendment) Act, 1976. However, according to D. D. Basu, as he opined in Shorter Constitution of India, 12th ed. p. 3, “the 42nd amendment has been productive of more mischief than benefit.” Thus, multitude of cases till now have been filed regarding these mischiefs and various parameters have been created for their proper redressal. However, most of those parameters are fluctuating in nature and defenceless against changing opinions. Thus, a standard set of ideals is required to test this freedom and Constitutional Morality may prove to be a potential standard to fill the void left by earlier parameters.