Mr. Peter Ronalds article “the courts and matter of faith” dated 19th May 2017 is based on the assumption which is questionable. The matter of faith and matter of conscience or belief are not and can not be treated as mutually exclusive. It is to be noted that faith is the feature of an ‘undivided mind’ and it evolves over a long period of time based on gradual consolidation of common and aggregate expression of conscience.Faith is faith and is not subject to scientific scrutiny by the tools and techniques of material sciences.Indian Constitution guarantees ( as a part of religious rights) ‘inner freedom of conscience’ which is individual centric but it also confers certain religious rights which are to be enjoyed collectively by the whole community like the right to establish and maintain institutions and to practice its rituals and ceremonies based on evolved faith.There can not be an individual without any belief or conscience and similarly there can not be any community without faith. You have faith in your self, faith in your god and faith in your mother and so on and these are not amenable to evidential validity of the kind which is celebrated in occidental culture.The questions of faith merit a different model of analysis which has to be examined holistically taking into consideration its unhindered continuity and acceptability in the community and secondly its relevance in terms of providing a decent standard of living based on the contemporary notion of justice evolving in the given environmental setting. Now come to the Indian environmental setting to examine the question.Constitution as in any other democratic country,is the supreme law of our country enjoying ‘special legal sanctity’ which ‘inter alia’ signifies the ‘sub ordination’ of all types of laws including ‘Shariat law’ and it is unquestionable. It means that individuals and communities have to live with their belief, faith and tradition ( regarding which adequate space has been created within Art.25 to 28 and Art.29 and 30, religious and cultural rights respectively) as long as they are not inconsistent with Constitutional morality which again is subject to interpretation by the courts at least in peripheral components.And India being a modern democratic and secular state, the question of constitutional morality has to be seen not from the prism of any religion and culture of any community. The validity of any faith therefore can be, if required, put to the scrutiny of contemporary notion of justice, liberty equality,the imperatives of communal harmony, gender sensitivity and others in pursuance of a welfare state.But what is desirable here is the application of the Doctrine of selective intervention.The question of Triple Talaq’ and ‘Ram Temple’ can not be equated on the basis of faith. Ayodhya being the birth place of Lord Ram, is a not only a matter of faith but it is also based on convincing scriptural and archaeological evidences and this faith does not bring any disability in the day to day secular life of any individual. On the other hand Triple Talaq is based on the faith which is subject to multifarious interpretation in the community of origin itself and accordingly it has been abolished in many Islamic countries.Further, we have credible evidences of how this Triple Talaq based on questionable faith has spoiled the lives of muslim women.Similarly,Islamic Jehad being a matter of faith has become a liability for the whole world which can not be allowed under Constitution.Other communities too have many undesirable religious practices and rituals based on faith but if they do not pose any danger to other communities and overall peace and harmony of larger society, we concede it in terms of freedom and liberty.
Therefore, if we really aspire to have a modern progressive society based on egalitarian values, the constitutional morality will have to play a centripetal role. All faiths will have to be open for enrichment,acclimatisation and harmonisation in the light of larger collective interest with an element of democratic dynamism. In the name of tradition and faith, howsoever old and sacrosanct it may be,we can not and should not allow any group or community to suffer from any kind of disability.
A6 UDB Landmark
Tonk Road, Jaipur 302015