138 Marc Galanter states that secularism does not translate into an impartial approach to-.

religion.

So, irrespective of how the secular a pproach is framed, it will impact howthe state engages with religion In the Indian context, the courts” engagementwithreligious rights has even led to them offering definitions for a particular religion Forexample, in⁶ the Courtexpounds on the contours of Hinduism The Court”s reach, in thiscase, was soextensive that it defined Hinduism and went on to analyse whether the sect inquestioncan be considered HindusThe reach ofthe Court in bringing within itsambit what Hinduism entails is also evident in some earlier cases.

The range ofinterpretation leaves room for doubt, culminating in a lack of consistency in itsapplication Cases such as⁸ reveal that the secular nature of the Indian Constitution does not minimise theinvolvement ofdecisionmaking in the religious realm.

Articles 25 and 26 of the Indian Constitution provide for the religious freedom ofgroups and individuals while allowing stat e intervention in terms of regulatingsecular activities associated with religion..

Article 25(2(a provides for regulatingsecular activitythat is associated with religious practice For instance, activitiesassociated with managing temple property and making rules for maintainingdiscipline and order inside the temple have been recognised assecular activities.

The courts are the deciding authority on what is secular and what is religious as Articles 25 and 26 do not provide the basis for such differentiation.

The ERPT was developed by the judges to help navigate what activities deserveprotection under the religious clauses of the Indian ConstitutionThe test, as itis

used by the courts, reveals that the courts prefer to use the ERPT to derive whetheran activity is “essential.” within a religion to qualify for protection under the Constitution.

If such activityqualifies as “essential.” to the religion, itis beyondtherealm of secular activity The focus on what is essential to a religion results in thecourt never really delving deeper into what should be secular activities, warrantingnoninterference by those who claim the protection of religious freedom Thus, evenif Articles 25 and 26 at the outset appear to grant complete control over religiousrights to individuals and religious institutions, the courts often have protected onlypractices essential to a religion.

The ERPT is said to have been first framed in the case ofERPT is about identifying what is e ssential to a religion According to the Court in that case, “What constitutes the essential part of a religion is primarily to beascertained with reference to the doctrines of that religion itself”.

Inbut did not elaborate on how the Court reached this conclusion It further rejected the approach that all secularactivities not essential to a religion are amenable to State regulation, thus providing a broad interpretationof what constitutes religious practice Unfortunately, inThe nearuniversalacknowledgement of Indian courts that the ERPT is definitive, without (reconsidering whether it deserves a placein determining religiou’s rights as set outin the Indian Constitution, is disconcerting Courts have endorsed the ERPT timeand again In Women, Religious Freedom, and The Indian Constitution The Commissioner, Hindu Religious Endowments, Madras vShri Lakshmindra Thirtha Swamiar of Shirur Mutt Shirur Mutt, the Court was of the belief that the Constitutiondoes provide for differentiationbetween what is religious and what is secular, Shirur Mutt, there was no effort to specificallyidentifywhat could be construed as secular practices The ERPT is noted to be anenquiry in which the Court looks within the religion to answer the questions of what is secular and what is religious Adi Saiva Sivachariyargal Nala Sangam vGovernment of Tamil Nadu, it was stated that the ERPT is a constitutional necessity and without such determination, it is not possible to effectively adjudicate the rights bestowed under

Access to Temples: Balancing Individual and Group Rights

Articles 25 and 26.

It must be acknowledged that inthus revealing some discomfortin using the ERPT While these concerns were expressed, there were no discussionson how to reassess the use of the ERPT or put an end to it or modify the same.

Justice Chandrachud”s engagementwith doctrines other than ERPT can beconsidered as one way through which he attempted to make changes to the existingstatus quo involving ERPT.

The ERPT faces manycriticisms It is argued that the test is not rooted in the Constitution,and the courts are said to have not done much to develop the test in a robust manner.

Another view is that the ERPT is guilty of making the courts a moral arbiter and a theological authority in cases involving religious freedom.

Thecourts also end up drawing the contours of true religious belief by the application of the ERPT,which necessitates a discussion on whether the secular framework of the Constitution ought to allow such inferences by the Court Given the nature ofenquiries in determining what is religious and secular are meritbased, the courtshave to rely onreligious doctrines, facts, and customs, and balance them all againstreligious rights enshrined in the Constitution This enquiry calls for a rigorousanalysis of facts and should involve crossexamination and other aspects that befits a meritbased enquiry in law The courts shy away from serious factfinding and caseslikeWhile Article 25 focuses on individual rights, Article 26 focuses on group rights.

Article 26 grants religious freedom toreligious denominations The word “denomination” was discussed in Sabarimala, Justice Chandrachud and Justice Indu Malhotraexpressed doubts as to the role of the courts in determining what is essential to a religion, Sabarimala reveal that there is a need to re visit the scope of the Court”s enquiry in cases involving factfinding, especially if the courts want to decide on meritswhile applying the ERPT Shirur Mutt where the Court used the Oxford dictionary termto define the same To identifywhether a group qualifies as a

Transformative Constitution

Article 25(2b allows for the opening upof Hindu temples of a public characterto all Hindus, irrespective ofclass and section Public institutionsmean all kinds ofinstitutions, including denominational temples and temples endowed to the benefit of a certain section of society, and the word “public” includes any section of the public.

InThe Court in this case applied the ERPT and held that access to temples under Article 25(2b applies to all religious institutions of public character While allowingaccess to temples, the Court noted that access cannot be absolute and unlimited, andin some scenarios, the religious institutions can exercise some limitations to access.

This could be in terms of the timing of thetemple., the fact that some of the servicesmay be restricted to be performed by those specifically trained, etcbut the public willbe allowed accessat other times.

While determining issues of access, thecourt may also be called to decide onwhether the religious institution seeking such restrictions is a religious denomination.

Although, While India has seen cases pertaining to a ccessing places of religious worship, the ERPT, as set forth in Women, Religious Freedom, and The Indian Constitution Sri Venkataramana Devaru vState of Mysore, the Court applied a harmonious constructionof the religious rights under the Constitutionand held thatdenominational rights granted under Article 26(b would be subject to Article 25(2bSri Venkataramana Devaru vState of Mysore made it clear that denominational rights granted under Article 26(b would be subject to Article 25(2b, in certain scenarios, the religious denomi nation may still argue that the access restrictions are a part of their religious de nominational rules This argument was used in Sabarimala as well The Court also delved into whether Sabarimala was a religious denomination entitled to put in place restrictions on women”s entry Thus., the issue of the religious denomination is often part of the discussion when it comes to debating religious rights, especially in the context of accessing religious places of worship Shirur Mutt, is usually employed in these cases As discussed above, the ERPT faces severe criticismsand one alternative suggestedtothe ERPT is to read the religious clauses and other related provisions., such as Article 17, using

The “transformative constitution” approach entails delving into the framing of the Indian Constitution and understanding the purpose of the clauses and their reasoning.

However, conflict may arise as to which of the framers” reasoning must be relied on while interpreting the Constitution This is a difficult exercise as it goes beyond the bare provisions of the Constitution and takes into consideration the literature on the making of the Constitution.

In international discussions, the idea of a “transformative constitution” is one thatconsiders underlying social and cultural structures while consciously attempting tobring about a change in the legal and political system.

One description of the transformative constitutionby international scholars isas “a longterm project ofconstitutional enactment, interpretation-., and enforcement committed (not inisolation, of course, but in a historicalcontext of conducive political developmentsto transforming a country”s political and social institutions and power relationshipsin a democratic, participatory, and egalitarian direction”.

It should be borne in mind that the approach to a transformative constitution will vary depending on thehistory of constitutionmaking in a country The effect of constitutions in imposingpositive or affirmative duties on the stat e to promote social welfare and to assistpeople in authentically exercising and enjoying their constitutional rights isconsidered a facet of providing a purposeful interpretation ofrights.

The disadvantage of this approach is that the role of the courts will move away fromproviding legal interpretations to what they consider the purposive interpretation ofrights in terms of the transformative constitution This is said to increase the risk of the judges providing their personal and ideological preconceptions in the quest toestablish the norms for a “transformative constitution”.

Justice Chandrachud recognises the aspect of a transformative constitution inHe further states that Article 17 reflectsthe transformative ideal of the Sabarimala While delving into the history of Article 17, he quotes renowned scholar Granville Austin and endorses the view that Article 17 aims to bring to the mainstream individuals and groups who have remained at the bottom of the societal hierarchy.

Constitution The portion of the judgmentinHe adds that the clauses onreligious freedom in the Indian Constitution are placed within the wider context of the fundamental rights chapterand this makes a difference in how it is interpretedalong with other provisionsin the chapter, including Article 17. The idea of a “transformative constitution.” for India is a new approach and how it will bedeveloped is up to the court”-.s interpretation ERPT was a creation of the court andthe new alternative of the “transformative constitution” suggested by some scholarswill also be one for the courtsto develop This underlines the impact of the judiciaryin interpreting the constitutional provisions pertaining to religion and the need for the judiciary tovalidate the approaches it takes through a robust methodology thatallows for the balancing of religious rights for both the group and the individual.

It is to be borne in mind that the attempt to use a transformative constitution hasits limitations, as the courts are not the only institutions that can rectify socialinequalities in all spheres.

There is a more holistic approach to enable the conceptof a transformative constitution that involves other systemic interventions beyond Women, Religious Freedom, and The Indian Constitution Sabarimala where Justice Chandrachud attempts to interpret Article 17 as a transformative clause highlights the challenges the courts will face while engaging with the Constitutionas a transformative document For instance, “u ntouchability” under Article 17 is not defined and the Constitution debates, as discussed by Justice Chandrachud, reflect the contested nature of the word While one interpretation of “untouchability” can include genderbased restrictions on access to religious places of worship, another interpretation may still allow for the refusal of such access, as it is not clear from the bare reading ofArticle 17 if the term “untouchability”-. used therein envisages genderbased restrictions in the religious realm It is pertinent to note that the word “untouchability” carries serious ramifications of a social order that allows for castebased discrimination Whether, and how, it is appropriate to bring within its realm, discriminationfaced by women of all castes in cases, such as Sabarimala, is something for the courtsto engage with in the future Using the perspective of the transformative constitution for cases involving religious rights, Gautam Bhatia argues that the Indian Constitution tries to safeguard individual autonomy from the onslaught ofstrict community sanctions and inequalities that existed before the independence.

Understanding Discrimination and Freedom of Religion through AntiExclusion

While those limitations are acknowledged., in the Indian context, theuse of principles underlying a transformative constitutionis yet to be fleshed out by the courts It istoo premature to commenton its efficacyas the concept is not beenextensively employedbythe Indiancourts In the context of religious rights, thisapproach can be mooted to see ifthe courts can flesh out the purpose of religiousclauses that need more clarity For instance, what is secular and what is religious in the Indian context needs more engagement and perhaps looking at the framing of the Constitution can provide some answers to the same.

Article 15(1 of the Indian Constitution provides a nondiscrimination guarantee In the initial years, the approach of the courts in analysing discriminationascontemplated under Article 15(1 was formalistic in terms of interpreting the word “only” in Article 15(1 and taking an effectsbased approach to discrimination.

It isargued that the development of a transformative reading of Article 15(1-. broughtabout a change in the development of discrimination jurisprudence in the Indiancourts, leading to understanding discrimination from the perspective of institutionalelements associated with discrimination.

The transformative reading of a provisionallows one to consider structural impediments that create exclusionary patterns.

The law relating to discrimination on the basis of sex is about gauging how a person istreated inrelation to others Indirect discrimination occurs when one sex isdisadvantaged due to the unjustifiable standards imposed on them, and complyingwith the standards imposed is not possible for members of thatsex, in comparisonwith the members of the other sex.

Neutral measures that cast an onerous burdenon some people with particular characteristics, overother people without thosecharacteristics, are also reflective of indirect discrimination.

Corrective justice

Women”s Entry into Places of Worship

Correctivejustice focuses on undoing the damage done to a claimant.

The issue of accessto temples for women has been raised before the courts In the Indian context, accessing temples as a right was first framed in the context of castebased discrimination which did not allow people ofcertain castes to enter sometemples for worship Article 25(2b allows for the opening up of Hindu temples of a public character to all Hindus, irrespective of class and section The opening up oftemples is now also framed in the context of women who are denied access Twoimportant cases in recent times setting out the Court”s approach to women”s entryto public places of worship are(These two cases are important, as they both use the ERPT in the context of different religions Inand the Court did not engage withquestions pertaining to whether the said ban constituted indirect discriminationIt was held inThe Court also held that the state has to protect the citizensinterms of the rights guaranteed under Part III of the Constitution and Article 26 cannot abridge or abrogate the rights bestowed by Article 25.

This is an important aspect to consider, as the court”s declaration of rightsdoes not always mean access in a realistic sense, as publicresistance tosuch verdictsmay impact the courtsanctioned accessThere are also other cases related toaccessing temples For instance, the restriction of women from entering the Shani Shingnapur temple in Maharashtra culminated in a legal battle where the temple Women, Religious Freedom, and The Indian Constitution Dr Noorjehan Safi Niaz vState of Maharashtra Haji Ali and Sabarimala Haji Ali, the question of women”s entry into the dargah was rooted in the ERPT Haji Ali that the public character of a place of worship such as the dargah attracts Articles 14, 15, and 25 and there can be no discrimination on the basis of gender Haji Ali culminated in women gaining accessand the ban being lifted in a realistic sense, as women can now enter the sanctum sanctorum of the place of worship.

In Shani Shingnapur, as the trustagreed to grant access, the ground reality reflects the court”s involvement in assistingthe women in gaining accessor in common parlance referred toas penance It isevident that thepenance is malecentric, as one of the conditions entails not interacting with women atall.

Rebutting the argument that the idol”s celibate nature requires the absence ofwomen in the age group 10…50, it was held that the sameis not consonant with the Constitution.

The same isnoted to “impose the burden ofman”s celibacy onawoman and construct her as a cause for deviation fromcelibacy”.

InIn indirect discrimination, the enquiryis about whether a criterion relied onby the discriminator has a disparateimpact on a group of people whosecharacteristics are covered by the prohibited criterion.

The fulfilment of thevratham as a condition to entry toThisreveals the Court”s reading of Article 15(1 in a manner to include componentscovering systemic and institutional discrimination.

The issue of women”s entry into Sabarimala extensively dealt with indirect discriminati on, women”s religious freedom, and the Indian Constitution Sabarimala concerned a Hindu temple in southern India that does not allow wome n in the age group 10…50 years to worship the idol., as theyare consideredincapable of completing the precondition toworship One could argue that the preconditions are set in a way that doesn”t allow women in the age group of 10…50 to complete them The preconditions are termed as the “vratham.” Sabarimala, it was noted that the exclusion of women from worship is inconsistent with constitutional values and these values supersede claims of religious belief Sabarimala can be construed as indirect discrimination, imposing a burden on wo men in the 10…50 age group, who can be disadvantaged by thiscondition as they cannot fulfil them The Court in Sabarimala noted that in discussing the freedom to practise religion., it is important to consider the structures of oppression and domination that exists within our society.

AntiExclusion Doctrine : An Introduction

While considering the right of women”s entry in The quest for equality is denuded of its content if practices that exclude women aretreated to be acceptable The Constitution cannot allow practices, irrespective of theirsource, which are derogatory to women Religion cannot become a cover to excludeand to deny the right of every woman to find fulfilment in worship.

The Court charted out what constitutes discrimination while allowing forreligious freedom in the context of women”s entry into public temples This led oneof the judges inWhile Justices Misra and Khanwilkar held that Article 25(1 allows for intra faith parity, Justice Nariman stated that ERPT will allow the Court to decide on what superstitions arenot considered essential to the religion Thus, the issue of antiexclusion was notconsideredbythe other judges.

In matters of conflict that involve striking a balance between a group”s religiousrights and an individual”s religious rights., the antiexclusion doctrine is mooted.

This doctrine is called for incases where there is a need tobalance religious rightsalongside other rights which appear to beirreconcilable with religious autonomy.

It is argued that antiexclusioncan be effectively used toensure that religious rightsand the other competing rights are taken onan even platform as the doctrine willallow for a fair balancing act.

In reading freedom of religion clauses, it has been Women, Religious Freedom, and The Indian Constitution Sabarimala, Justice Chandrachud stated as follows: Sabarimala to develop a new approach that veered away from the previous approachesof the Court and the other majority judges in SabarimalaThe approach of the Indian courts had heavily focused on the ERPT in deciding questions concerning religious freedomunder the ConstitutionThe new approach to religious freedomenquiry centres on the antiexclusion doctrine, which was espoused by Justice Chandrachud in his judgment in Sabarimala The other judges who pronounced the decision of the majority in Sabarimala did not engage with the antiexclusion approach espoused by Justice Chandrachud They decided on the questions placedbefore themusing the ERPT.

This principleis set out as one wherein actions of a group impede individual freedom in a mannerthat entails “restrictionof an individual from accessing basic goods thatare necessaryfor a life of material and expressive dignity”.

Inthe Supreme Courtcontemplated whether the restriction on the power toexcommunicate a memberinterferes with the religious freedom exercised by the Dawoodi group in terms ofregulating their own affairsA majority offour judges allowed the Dai (that is, grouphead to retainthe power toexcommunicate, stating that the Constitution protectspractices thatare essential to the religion The genesis of the antiexclusion doctrineis found in the dissent in this case.

The dissenting judgment stated thatexcommunication has an impact on rights that are ofcivil nature and a restrictionon excommunication furthers the objective of Article 25(1 and prevents thetreatment of an individual as a pariah.

InThus, there are early instances of the courts applying Article 25(2b and Article whiledeciding on cases related to accessing public temples.

The use of the antiexclusion doctrine as mooted by scholars and used by Justice Chandrachud in Sardar Syedna Tahir Saifuddin vState of Bombay, Sri Venkataramana Devaru vState of Mysore, the Supreme Court held that the religious groups” right to restrict access to temples willnot stand in the light of Article 25(2b read with Article 17. Sabarimala reveals that it is entwined with Article 17 and Article 25(2bAs early as in Sri Venkataramana Devaru vState of Mysore, the awareness of the courts to apply Article 17 through the lens of antiexclusionfor cases dealing with public accessto temples is evident The challenge for the Indian courts is toframe the application of the antiexclusion doctrine byreading these two Articles together This is particularly necessary if the courts want to rely on Article 17, (which is crafted as a protecti on against castebased discrimination, to make a case for genderbased discrimination Judges will have to justify how women from all castes are eligible for the protection offered under Article 17 and why their exclusion fromaccessing temples will fall under the ambit of Article 17.

Further, the “antiexclusion” principle isargued to be central to the constitutionalvalue system that promotes values of liberty, dignity, and equality.

This wouldfurther entail that women will not be relegate d to a secondary position in their right toworship.

The remedial nature of constitutional provisions is centred on theprevention ofdiscrimination on the grounds of caste and gender, among othercategories.

It is arguedthatthe exclusion ofwomen from worship is inconsistent withconstitutional values and these values supersede claimsofreligious belief.

In engagingwith religious freedom in the context ofwomen”.s entry into public temples, theapplication of the antiexclusion doctrinewill be crucial This doctrine has thepotential to balance religious rightswithother fundamental rights, without delvinginto the theological aspects of a religion, as it would allow for reevaluating thequestions thatought tobe asked by the courts..

Some questions that this doctrine willhelp frame include: “are the beliefs actually held, and by how many people? And doesthe group suffer exclusion—frompublic goodmore generally, and specifically throughthe exercise of religious autonomy?”-..

The usage of antiexclusion augurs well for theargumentonthe remedial nature ofconstitutional provisionsas the same caterstoaddressing questions on overcoming socialexclusion When compared to the existing ERPT used in India, there is a compelling case to use this doctrine and explore itsapplicability in cases involving religious clauses, including cases pertaining to women”s access to temples and public places of worship.

The genesis of “untouchability” is embedded in caste categorisationinIndia, and it Women, Religious Freedom, and The Indian Constitution AntiExclusion and Article 17 The antiexclusion doctrine willgain more context when looked through the lensof social reform clauses of the Constitution It is to be borne in mind that the application of antiexclusion along with Arti cle 17, as espoused by some scholars and Justice Chandrachud in Sabarimala, relies heavily on the “transformative constitution” angle The challenges associated withthe same have been dealt withpreviously inthis essay. “Untouchability”, recognisedin Article 17, encompasses elementsthat forbid the practice in any form and is allinclusive of practices that bear any semblance to it.

Restricting accessinand a denial ofcivic rights and religious rights.

This is further tethered to the impetus granted by Article 17. Article 17 is vested with an enforceability element, also it is directlylinked to a just social order and speaks for the transformative impact that the Constitution seeks to exert.

In the context of the constitutional debates, the framing of Article 17 is openended and could encompass a wider context depending on how it isinterpreted.

Article 17 is a remedialclause and the framers understood the breadth encompassedwithin the clause.

As Justice Chandrachud put it, “it is a move by the Constitutionmakers to find catharsis in the face of historic horrors”.

It is argued that the antiexclusion principle can veer the court away from deciding on religious content andfocus on deciding on the impact of discrimination.

The application of the antiexclusion principle withinthe religious realm will ensure that religious groups arenot preventing access for individuals to basic goods.

Further, it is argued that thiskind of enquiry is also sanctioned within the constitutional framework.

Thus, it isrightly proposed that the antiexclusion principle should apply when there is a conflict withina religious grou p about a religious practice.

The court shouldrespect religious group”s beliefs and should only apply the test when there arebarriers that impede the social, cultural, or economic life restricting access to basic Sabarimala entails restricting “substantive equality” as envisioned in the Constitution

Antiexclusion and Petitioner”s Belief

In the context ofOne aspect that the Indiancourts will have to delve deeper into is whether thepetitioner”s belief is an important question to be considered in cases that involvereligion and the right to worship, including cases pertaining to women”s access topublic places of worship The antiexclusion doctrine should consider whether theexclusion is for the believer only or if it applies irrespective of the petitioner”sbelief.

These questions have remained unanswered by Indian scholars and by the courtsasof now, as the antiexclusion doctrine is yet to be fleshed out In cases where thepetitionwas filed by a religious believer, the antiexclusion doctrine applied by Justice Chandrachud inpetitioner For example, Article 25(2b specifies “ƒ-.throwing open of Hindureligious institutions of a public character to all classes and sections of Hindusƒ” which reveals that an individual”s belief asbelonging to the Hindu religion is subtlyrecognised in the framing of Article 25(2bThis could also validate why thepetitioner”s belief isimportant incases involving women and access to religiousplaces of worship.

InThis was a case Women, Religious Freedom, and The Indian Constitution Sabarimala, which is a conflict between individual right to worship and group right leading to exclusion of women, the antiexclusion principle and the individual right to worship should triumph The remedial nature of the transformative constitutionis succinctly elaborated as one which will support the equal participation of women Sabarimala would resonate strongly The remedial powers of Article 17 read with the social reform intent bestowed in Article 25(2b would mean that Hindu temples of public character should be open to all In considering the same, the challenge thatlies before the court is twofold The first challenge is charting out the role of the petitioner”s belief in applying antiexclusionThe second challenge is to navigate the application of antiexclusionwith regard to women who want to subscribe to exclusionary conditions, accepting them aspart of the religious tenets Petitioner”s belief should be considered by the court as indirect discriminationin such cases occurs as a result of conflicting interpretations of religious belief between participantswho bo th adhere to the religious belief, but in different ways Once the petitioner”s beliefis established, the courts can delve into the antiexclusion principle to ensure the religious participation of the aggrieved Haji Ali, the Bombay High Court did not frame any issue with respect to the maintainability of the petitions or delve into petitioners” beliefs.

The dargah was open to all, irrespectiveof religion, and the petitioners had been visiting the same for a long time.

Thus, inthis case, while discussing women”s access, the court did not engage with questionson indirect discriminationand whether a petitioner”s belief is relevant and ifrelevant, to what extent.

The dissenting judgmentin-.

InIt was rightly noted that thepetitioners” individual rightsshouldbe violated for enabling the Court to take noteof the infringement of the fundamental right to religious freedom-..

It was furtherargued by Justice Malhotra that the question of the religious faith ofpetitioners isnot one of technicality, but one which encompasses an important requirement, which is essential to retainthe sanctityof challenges to constitutional rightspertaining to religious discrimination.

There was no comprehensive debate by the majority in-.

Two judges, Justice Misra and Justice Khanwilka, did not address the question of maintainability The lack of deeperengagement with the petitioner”s belief is a missed opportunity as far as Sabarimala placed emphasis on petitioners” religious beliefs Sabarimala, the Court encountered petitioners who challenged the religious practice on grounds of gender discrimination Sabarimala on whether nonbelievers should be allowed to challeng e religious beliefs Justice Indu Malhotra briefly mentioned the importance of the petitioner”s belief inreligious rights-.” cases but did not delve further into how the courts shoulddeal with the same The majority judgment seems to have brushed this ques tion aside on the grounds that it is a constitutional issue impacting women at large Justice Nariman opined that the issue of entry into temples impacted women at large and thus the ramifications of such restriction of accessis a purely constitutionalissue Sabarimala is concerned While the Constitution does offer more scope to ensure equality and the courts are often flagbearers of this, it shou ld not come at the cost of the court not attempting to frame robust tests to ensure all fundamental rights, including the right to religion, are given their due Religious freedom is present wi thin the fundamental rights and that is indicative of the importance that religion is accorded The majority judges largely lookedat the issue aspatria rchal practices or superstitious ones, without once recognising the agency of the women who may want to subscribe to such practices This is precisely why the petitioner”s belief discussion would have added

Conclusion

Religion in the Indian context is construed by courts as a doctrine of belief, protecting actions that are done in the pursuance of religion as captured in thephrase “practice of religion” in Article 25.

In deciding matters of what religiousbeliefs meet the constitutional standard, the court will have to consider whetherindividuals who approach the court are ones who are practitioners of the religion, who are facing distress due to lack of anopportunity to carry on their worship.

When people who are not in the “practice of a religion-.” claimthey are harmed byreligious practices, it is the court”s duty to consider issues of belief and practice Thiswill allow the court to be true to the religious freedom that the Constitution bestowson practitioners.

The antiexclusion theory which led to Chandrachud”s reasoning should becarefully consideredIt is argued that the principle is apt when there is a conflictbetween religious believers over a practice.

The basic ingredient of intrareligiousconflict is essential to apply the antiexclusion doctrine and a nonreligiouspetitioner filing the petitioncorrodes the innovative approach to antiexclusionTheuse of antiexclusion allows the cIt does not necessarily place one over the other, rather, allowing thecoAntiexclusion, ifapplied and developed, is a potent doctrine grounded in the overarching strength of Article 17. The court will have towieldits powers with caution if it wants tomaintain the sanctityof the religious rightsin the Constitution.

Thus, while the courtsin India developed and used the ERPT, the adoption of theantiexclusion doctrine in Women, Religious Freedom, and The Indian Constitution Sabarimala was a case of patriarchy negating the true essence of religionand interfering with women”s faith ourt to balance the right to religious autonomy and equality provisionsurt to weigh in and balance both objectively Sabarimala provides for an alternative approach The antiexclusion application can alsobenefit from how indirect discrimination is dealt with

If they want to ignore the petitioner”s belief in cases ofdiscriminationthat culminate in restricting access of women to places ofworship, they have to elaborate on whether the same can be done under the Constitutionalframework While the Constitution has bestowed many benefits, the c — ourt will have to be cautious in framing the new approa ches in interpreting religious freedom clauses, to ensure respect for the religious Indian as well.