हिंदी समाचार पढ़े
Expand
O.P. Jindal Global University
 
Home / Articles / Salvaging an Individual’s Fundamental Rights from the Stranglehold of Group Rights By Mansimran Kaur

Salvaging an Individual’s Fundamental Rights from the Stranglehold of Group Rights By Mansimran Kaur

August 11, 2018:

The Author, Mansimran Kaur, is a 1st Year Student of BALLB, Chandigarh University.

Our Constitution is based on the principle of equal citizenship, protecting the rights of an individual through fundamental rights guaranteed in Part-III of the Indian Constitution. However, seeing past atrocities being committed against certain identities urged the constitution makers, specifically Dr. B.R. Ambedkar, to insert articles which protect the culture and speech of these minority groups.

Fundamental Rights
Fundamental Rights

At times, there comes a point of friction between fundamental rights guaranteed to individuals against the rights guaranteed to group identities. The latter supersedes the former in such a way that the former is struggling to find its relevance and freedom. One such controversial article is Article 26 which states: “Group identities have rights to manage their own affairs, including the right to excommunicate a person.”

Religion plays a substantive role in a nation like India, giving identity to an individual. Moreover, it has also played a negative and much relevant role in denying basic civil and economic rights to certain group identities. Thus, in India, religion cannot be without reasonable state interference. This is the very reason why the judiciary, time and again, must mediate the tussle between the group rights against individual rights as the extent and situations in which these group rights can be exercised is undefined.

The basis of excommunicating is completely gender-biased in most cases. From instant Triple Talaq to female genital mutilation to the Goolrukh Gupta case in 2017, the rights of women have been completely suffocated. The right to freedom of religion under Article 25 is always found at the mercy of Article 26.

Evolution of the phrase “essential religious practices”
Infringement of individual’s right to freedom of religion was accepted as a natural outcome in the case of Sardar Saifuddin Saheb vs State of Bombay 1962 in which a provision of the Bombay Prevention of Excommunication Act 1946 was struck down by a five-judge bench.

Shielding unjust practices of the group rights under the blanket of the phrase, “essential religious practices” has been often criticised over years. Gradually, the judiciary started pronouncing judgements pertaining to group rights with a different perspective altogether. Interpretation of the phrase was not just limited to the practices “essentially religious”, rather questioning whether the practice is “essential to religion” and if yes, does it meet the reformist requirements of the constitution?

The High Court of Rajasthan held that Jain religion’s practice santhara – voluntary and systematic fasting to death was illegal since it amounted to abetment of suicide and cannot be found in any scriptures, articles and preaching thus, concluding it to be not an integral part of the religion.

The Hon’ble Supreme Court, in the case of Goolrokh Gupta vs Burjor Pardiwala and Others, held a landmark judgement in the favour of Gupta by quashing the Gujarat High Court order. It ruled that marrying outside her community does not infringe her right to profess her religion and her right to enter Parsi temples or performing the last rites of her father since marrying under the Special Marriage Act retains the original identity of an individual and does not engulf it. Moreover, excommunication on the basis of marrying a non-Parsi is not a practice essential to sustain the identity of a group.

The Sabarimala Temple denying the entry of women in a place of worship is a violation of Article 14 of the Constitution, Article 17 and restriction on female autonomy In justification of the ban on the entry of woman the defence taken by the religious groups was that of Article 26 (Right of religious groups to manage their own affairs).

The Supreme Court has countered the defence by stating the limitations of morality, public order and health on Article 26 making it a non-absolute right.

Thus, the tug of war between the individual’s fundamental rights and the group rights is a real struggle for the Indian Judiciary. The purpose of the religious groups should be to protect individual rights better from unreasonable state interference and to protect religious denominations from being engulfed by the majority. Therefore, the right to excommunicate an individual under Article 26 of the Indian Constitution should be struck down or the article should be amended in a way which clearly defines the scope of group rights, situations where the group rights are in a conflicting zone with individual’s fundamental rights and lastly the basis of excommunication should be essential in maintaining the group’s identity.

Facebook Comments

Delivery Boy Delivery Boy                    by Satish Hindu

TOI

Hindu Hindu Hindu Hindu

Hindu

Four Pillars of Democracy Four Pillars of Democracy             by Satish TOI Hindu Tax Reforms    by Hindu Tax Reforms by Hindu Acheche DIn Acheche Din     pic by sify America First Walk Your own Talk

Hindu Hindu

Time to straighten up Time to straighten up                pic by TOI Pic by Hindu Women Empowerment and Sports Women Empowerment and Sports Demonitisation Diaries 1 Demonitisation Diaries 1                                  pic by sify   TOI

Hindu

Cartoon [caption id="attachment_97462" align="alignleft" width="524"]Painting India Saffron Painting India Saffron[/caption]

TOI

Hindu Auto Driver thrashed for no fault Auto Driver thrashed for no fault,                  source oneindia

TOI

Alligator vs Litigator Alligator vs Litigator Soaring of Oil Prices pic by indiaone

TOI

Hindu TOI State of Affairs Women Safety: State of Affairs             pic by mangal

TOI

TOI

TOI

Humour @ Latest Laws Achhey Din Humour @ Latest Laws: Achhey Din TOI Demonitisation Diaries Demonitisation Diaries                                                       by sify ALL_1_Theme_01A_24_2383617g

Hindu

Hindu

Hindu

Let Justice Be Let Justice Be 150425_-_farmers_a_2384764f

Hindu

Hindu Hindu

[caption id="attachment_97477" align="alignleft" width="621"]UIDAI Leaks UIDAI Leaks[/caption]

TOI

Belts are for Dogs Belts are for Dogs

...as an eminent lawyer you ought to know that your action tantamount to, under Section B, sub-section G.VIX, read along with I.P.C. (A) XI (B), notwithstanding...                                        TOI

Lawyers Bearing the Burden Literally Lawyers Bearing the Burden Literally pic by OMG

pinterest

Hindu

[caption id="attachment_97474" align="alignleft" width="621"]Donald Trump’s immigration ban Donald Trump’s immigration ban[/caption]

IBN IBN

Demonitisation Diaries 2 Demonitisation Diaries 2  pic by sify Job Hazards

TOI

If India takes One Step, we will take Two by Satish If India takes One Step, we will take Two ...................by Satish

TOI

Hindu Hindu Missing the Point Missing the Point pic by english blog State of Two Nations State of Two Nations               pic by sandeep TOI [caption id="attachment_97467" align="alignleft" width="621"]Humour with Latest Laws Humour with Latest Laws[/caption]

Hindu

Hindu

Hindu

 
 
 

Check Also

Manual Scavenging in India

Critical Analysis of Law on Manual Scavenging in India By Rashmi Jain

November 10,2018: The Author, Rashmi Jain is a 5th year BBA.LLB (H) student of ICFAI (Indian Chartered Financial Analysis) Law School, Hyderabad. She is currently interning with LatestLaws.com. What is Manual Scavenging? Manual scavenging is the practice of manually cleaning, ...

Leave a Reply

Your email address will not be published. Required fields are marked *