There is a fundamental right to practice any religion of choice.
There is also a fundamental right of equality in right to enter public place without being discriminated on ground of gender.
Suppose these two rights clash with each other. Suppose if court upheld Right to Religion, then, it will have to sacrifice Right to Equality !
And suppose there is a situation where if you uphold right to equality, then you have to sacrifice fundamental right of religion !
How judges decide?
1) I read somewhere some time ago, a freak case filed by a Hindu Woman in an American Court.
She claimed that she follows ancient religion of Pandava where a woman has right to marry Five Husband. She sought permission from court to marry five husbands
American Court dismissed her suit saying that Constitutional Rights are above Religious Rights.
I did not note down the case. Therefore, I cannot say how one can find this case.
2) Some years ago, the then CJI B S Kapadia said that we are now in an era where instead of deciding which right prevails over which right, we have to balance competing fundamental rights. This is done by invoking principle of Reasonable Restrictions.
3) This requires that in each such case, the Court has to inquire into one more aspect, namely, "Does this restriction come within preview of Reasonable Restriction"?
Conclusion: The recent trend in laws in India has Pragmatic Approach. The courts are now willing to stretch their earlier concepts wherever it can lead to better good for all.
Haresh Raichura
26/8/16
