The freedom of religion is often invoked by those resisting social reforms motivated by equality, liberty and safety concerns. Courts have to draw principled lines that accommodate these interests in complex factual circumstances.
Justice Rohinton Fali Nariman decided several prominent freedom of religion cases this decade. His opinions clarify the scope of freedom of religion and its relationship with other fundamental rights in ways that are likely to shape this field in the years ahead.
Justice Nariman was ordained as a Parsi priest when he was 12 years old and wrote a book in 2016 about contemporary Zoroastrianism. His theological interest extends to other religions and he has acknowledged that study of comparative religion has shaped him ‘a great deal’ as a lawyer and a judge. These wider intellectual and personal interests inform his interpretations of the right to freedom of religion in the cases discussed below.
Gender Equality in Divorce
In 2017, a five-judge Bench comprising Nariman, Lalit, Joseph, Khehar and Nazeer JJ determined the constitutionality of triple talaq. Triple talaq is a practice under Muslim personal law that allows a man to instantly divorce his wife. Shayara Bano, the petitioner, challenged this practice of triple talaq after her husband had invoked it to divorce her. She also challenged the practices of Nikah-halala and polygamy.
A 3:2 majority held that the practice violated the rights to equality and life. Writing the majority opinion for himself and Lalit J, Justice Nariman noted that the Muslim Personal Law (Shariat) Application Act, 1937, which recognised triple talaq was ‘manifestly arbitrary’. This is because it allows a Muslim man to whimsically break marital ties. Since any arbitrariness in law is a violation of the right to equality, the provisions facilitating triple talaq were unconstitutional.
Temple Entry for Women
Nariman J continued to engage with the harmful effects of religious practices on gender equality in the Sabarimala Temple entry case. The Sabarimala Temple in Kerala prohibited women in their ‘menstruating years’ (between the ages of 10 to 50) from entering. This prohibition was allowed by the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 (the Rules).
This was challenged in Indian Young Lawyers’ Association v State of Kerala (2018) where the Court held that the Rules were unconstitutional. Nariman J wrote a concurring opinion and noted that as the exclusion of women from the temple was based solely on sex, it violated Article 15.
In 2019, a Constitution Bench comprising Ranjan Gogoi CJI, Khanwilkar, Malhotra, Nariman and Chandrachud JJ considered whether they should review the Sabarimala judgment. A 3:2 majority referred to a nine-judge Bench the questions arising out of the appropriate balance between the right to religion and the right to equality. They also kept the Sabarimala review pending. Nariman J dissented on behalf of himself and Chandrachud J. He stated that the only question before the Court was whether the grounds for a review petition were satisfied and the Sabarimala review petitions failed this test. He cautioned the Court from straying into enquiries of what a future Bench may hold in similar cases.
In the near future, a nine-judge Bench will review the Sabarimala case and consider the broader question of balancing the right to freedom of religion with the right to equality, Nariman J has consistently held that public health concerns and gender equality norms trump the freedom of religion. The future direction of the court on this sensitive question will be keenly watched.