ACCESS TO JUSTICE TOWARDS THE CREATION OF INCLUSIVE SOCIAL ORDER Fundamental Rights under the Constitution is keenly awaited,107 which would promote the process of access to justice by sharpening the contours of constitutional values. Not with standing the complexities involved, for continually refining the constitutional values, the constitution of Constitution Benches is the assured constitutional course. Most recently, it is for this very reason, a three-Judge Bench of the Supreme Court led by the Chief Justice of India,108 in order to refine the notion of ‘mitigating circumstances’, which are to be considered while imposing death penalty in ‘rarest of rare’ cases, referred the issue to the fiveJudge Constitution Bench.109 Doing so was necessitated as there was a clear conflict of opinion on this count between the two sets of three-Judge Bench decisions, and in the sagacious opinion of the Supreme Court in the instant case, “it is necessary to have clarity on the matter to ensure a uniform approach on the question of granting real and meaningful opportunity, as opposed to a formal hearing, to the accused/convict on the issue of sentence.”110 Moreover, whether such an opportunity should be granted to the accused/convict earlier than at the stage of sentencing, that is at the stage of trial itself, would bring about substantive clarity on judicially construed sentencing policy.111 Herein lies the most fundamental critical value of the judgements of the Constitution Bench in the arena of access to justice. The second count that requires reorientation relates to understanding the intrinsic value of the Directive Principles of State Policy placed in Part IV of the Constitution (Articles 36-51). The key to understand these directive principles is contained in Article 37, which makes the plethora of provisions enunciated in Part IV (Articles 38-51) simply as ‘non-enforceable’ by any court of law. Hitherto, we seem to have missed the profound significance of the element 107 In this scenario, our Critique on Sabrimala Temple case (2018) carries a distinctive critical functional value, in as much as in it we had not only anticipated the centrality of seven-Issue Reference by specifically raising three critical questions for exploring the interplay between the constitutional right to ‘freedom of religion’ (Articles 25 and 26) and the right to ‘equality and non-discrimination’ (Articles 14 and 15), but also responded to them in full measure. Since these very questions are yet to be answered principally by the nine-Judge Bench in response to the seven-Issue Reference, their response is most eagerly awaited as that would give us another opportunity of re-visiting our Critique and to see for ourselves in retrospect, how far we were justified in comprehending the constitutional jurisprudence and say with a certain degree of certitude that in the realm of ‘freedom of religion’ read with the ‘right to equality’, ‘freedom of religion’ should not be mistaken for ‘freedom from religion’. 108 Besides Justice U.U. Lalit, Chief Justice of India, the three-judge Bench of the Supreme Court included, Justice S. Ravindra Bhat and Justice Sudhanshu Dhulia. 109 See, The Tribune, September 20, 2022: “Death penalty: Constitution Bench to frame rules on mitigating circumstances.” 110 Ibid. 111 Writing the judgement for the Bench, Justice Bhat said, “It is also a fact that in all cases where imposition of capital punishment is a choice of sentence, aggravating circumstances would always be on record, and would be part of the prosecution’s evidence, leading to conviction, whereas the accused can scarcely be expected to place mitigating circumstances on record for the reason that the stage for doing so is after conviction. This places the convict at a hopeless disadvantage, tilting the scales heavily against him.” Ibid. 27