New Delhi, Oct 17: Justice Indu Malhotra in her dissenting verdict in the Sabarimala Temple case said the practise of barring the entry of women in the age group of 10 and 50 was protected under the right to freedom.
She further held that this was not in violation of the right to equality, while adding that it did not matter if the said practise is logical or rational. It is a matter of liberty of faith, belief and worship.
With lakhs of people protesting the verdict that allowed the entry of women in all age groups into the Sabarimala Temple, the big question is whether a secular state interfere in matters of faith, belief or customary religious practices?
In this context let us take a look at what Article 25 of the Indian Constitution has to say. The Article states that every individual is entitled to freedom of conscience and has the right to profess, practise and propagate religion of ones' choice. However practising religion or the act of propagating should not affect public order, morality of health.
The Article however does not restrict the government to making any law when it comes to regulating economic, political, financial or secular activities.
Freedom comes with a responsibility:
A broad reading of the Article indicates that the freedom to follow any religion and also propagate it comes with a responsibility to ensure public order, morality and health are not compromised.
Advocate K N Phanindra, tells OneIndia that courts need to circumspect while dealing with religious matters. Earlier judgments in so far as religious matters have been clear that the court cannot interfere in such matters. He further added that issues of deep religious sentiments should not be ordinarily interfered by the court.
Phanindra cites the Bejoe Emmaneul case of 1986, where the court had upheld freedom to practise religion. Three children belonging to the Jehovah sect were expelled from school after they refused to sing the national anthem. They said that they desisted from actual singing only because of their honest belief and conviction that their religion does not permit them to join any rituals except it be in their prayers to Jehovah their
The court had held in this case the fundamental rights under Article 19 (1) (a) and 25 (1) had been infringed and they are entitled to be protected. The court said that it was satisfied that in the present case the expulsion of the three children from the school for the reason that because of their conscientiously held religious faith, they do not join the singing of the national anthem in the morning assembly though they do stand up respectfully when the anthem is sung, is a violation of their fundamental right to freedom of conscience and freely to profess, practice and propagate religion.
Deity as a juristic person:
In Indian jurisprudence the deity in a temple is deemed to be a juristic person. This means a deity is a living person and has a right to privacy. This would apply to Lord Ayyappa as well, which means women in the age group of 10 and 50 cannot impose themselves.
When the Ram Mandir case was being heard by the Lucknow Bench of the Allahabad High Court, the same question had come. Legal experts say that in Indian jurisprudence, a deity can be represented through the trustees since most of the property concerning a religious place is managed by the trust.
A deity as pointed earlier is considered to be a juristic person. On juristic persons, the law states that they beings-real or imaginary-to whom the law attributes a personality by way of ruction when there is none in fact. According to the Supreme Court, 'a legal person is any entity other than human beings to which the law attributes a personality'. The words 'juristic person' connote the recognition of an entity to be a person in law which otherwise it is not. In other words, 'it is not a natural person but an artificially created person which is to be recognised in law as such'.
Juristic, legal or artificial person is any subject matter to which the law attributes a personality. It is a legal creation under a general law like the Companies Act, a specific enactment, or by a decision of the court. A legal person is a holder of rights and duties, can own and dispose of property, can receive gifts, and it can sue and be sued in its name.
Idols have been recognised to be juristic persons in Hindu law, which personifies the deity as a legal person. A Hindu idol is recognised by courts as a juristic entity having a judicial status, and its interests are attended to by a person who is in charge of the deity and who under law is its guardian or manager.
The property in question belongs to the idol as a juristic person and the possession and management of the same are vested with the guardian or the manager.
In one case, the Nagpur Bench of the Bombay High Court had said that from the spiritual point of view an idol is the embodiment of the supreme being. So far as the deity or idol stands as the representative and symbol of a particular purpose indicated by the donor, it can figure as a legal person.