The court is showing that it is all too eager to meddle in the affairs of religions.
Article written by Dinsha Mistree | Indian Express
While many voice concern over Narendra Modi and the Hindu Right, it is ironically the SC that seems keen to interfere with religious practice.
My Parsi-Zoroastrian ancestors came to India seeking refuge from religious persecution. According to legend, they found a sympathetic Hindu king who not only provided them with the space to settle, but promised to allow my ancestors to practise their religion without any interference. By deciding what does and does not constitute my religion, the Indian Supreme Court (SC) today seems to be preparing to go back on that promise.
Although the Parsi-Zoroastrian story may be particularly well known, Indian rulers have shown tolerance to religious practice of all stripes. This level of tolerance over such a long period of time simply cannot be matched in other parts of the world. This tolerance has made India stronger.
This era of tolerance is facing a threat. While many voice concern over Narendra Modi and the Hindu Right, it is ironically the SC — the institution charged with protecting fundamental rights like the right to religion — that seems keen to interfere with religious practice.
In a series of cases, the court is showing that it is all too eager to meddle in the affairs of religions. In the triple talaq case, the court reached the right verdict with the wrong logic. India needs a civil code so that men and women are treated evenly before the law, and to their credit the court called for Parliament to pass just such a code. But instead of leaving it at that, the five justices on the bench used convoluted positions to rule on the triple talaq case. Two in the majority decided that the right to equality trumps the right to religion, not only establishing that some rights are more fundamental than others, but also designating the court (and by extension, the Indian state) as the hand that should decide when religious rights should be suspended.
In an upcoming case dealing with my own Parsi-Zoroastrian community, the court is considering who is or is not a Zoroastrian. Historically, the descendants of women who marry outside the religion have not had access to our religious institutions. The court may decide to define who is a Zoroastrian and who should have access to our temples. Whether or not this decision promotes equality, such a ruling would undoubtedly carry much deeper consequences.
Once the SC determines who is or is not a Zoroastrian, we might then expect a court-appointed board to approve who should be allowed to join our clergy. After all, only men born into certain families are currently allowed to become priests. One day we might even have to submit our prayers, which are also gendered, to a government office for modification. This is not religious freedom. This is exactly what makes religious adherents flee for more tolerant lands.
If change is to come, it certainly should not come from the pen of the SC. As a branch of the state, the court should limit its own involvement in religion as much as is reasonably possible. It should encourage Parliament to pass a strong civil code so that the muddy waters separating religious and state jurisdiction are made clear. Never again should an Indian court be expected to interpret religious practice. And it should leave the Parsi-Zoroastrian community alone so it can decide how it chooses to reform its practices, if at all.
Critics will argue that the SC is tasked with upholding the Constitution, which is open-ended insofar as religion and the state are concerned. They will maintain that even though India officially considers itself a secular state, this does not mean that India shares the Western understanding of secularism. Instead, in the Indian context, a secular state is one that treats all religions equally. The Constitution and previous precedents provide latitude for religious interpretation, but the respected justices of the SC should also recognise that broad interpretations of these conditions can undermine — and potentially even eliminate — religious freedom. In limiting its own purview, the court will demonstrate a commitment to religious tolerance.
The right to religion should be as sacrosanct as any other fundamental right. Fundamental rights are meant to prevent an overreaching state, not as a justification for the state to overreach. Parliament should pass a civil code and delineate protections for people of all faiths. The court should avoid interpreting religious texts or overruling ecclesiastical bodies. In showing restraint, the justices have the opportunity to continue India’s unique history of religious tolerance.
The writer is a research fellow in the Rule of Law Program at Stanford Law School. He is active in the Parsi-Zoroastrian communities in North America and India.
