The Supreme Court on Wednesday said that one of the most difficult tasks for a court is to declare the beliefs of millions of people as wrong or erroneous, and that a religion cannot be stripped of its essential practices in the name of social reform.
A Constitution Bench of Chief Justice of India (CJI) Surya Kant along with Justice BV Nagarathna, Justice MM Sundresh, Justice Ahsanuddin Amanullah, Justice Aravind Kumar, Justice Augustine George Masih, Justice Prasanna B Varale, Justice R Mahadevan and Justice Joymalya Bagchi made the observation during the hearing of a reference case arising out of the Sabarimala temple entry matter.
"The most difficult task for a court might be how to give a declaration that the belief of millions of people is wrong or erroneous," CJI Kant said, while responding to submissions over maintainability of public interest litigation (PIL) petitions in religious matters.
Similarly, Justice Sundresh asked whether Courts can decide such questions without hearing representatives of millions.
Justice Nagarathna too echoed similar concerns and remarked that such PILs should not be entertained when the petitioner is only an interloper.
She further said that a religion cannot be stripped of its core in the name of social reform.
"We cannot hollow out religion in the name of social welfare reform," Justice Nagarathna remarked.
Background
The Constitution Bench is examining various legal questions concerning religious rights and freedoms in India. The reference being heard by the Constitution Bench is connected to the
top court's September 2018 verdict in which a 5-judge Constitution Bench, by a majority of 4:1, allowed women of all ages to enter the hilltop shrine in Kerala. That decision overturned the tradition that restricted the entry of women of menstruating age.
The ruling triggered widespread protests across Kerala and led to dozens of review petitions being filed by various individuals and organizations before the apex court.
It held that larger issues pertaining to the Essential Religious Practices Test, interplay between Articles 25 and 26 on one hand and Article 14 on the other and the conflict between the judgments in the Shirur Mutt case and Durgah Committee case will have to be decided by a larger Bench.
Hence, the matter was referred to a 9-judge bench.
Hearing today
The Travancore Devaswom Board (TDB), which manages the Sabarimala temple in Kerala, advocated for doing away with the ‘Essential Religious Practice’ (ERP) doctrine evolved by the Supreme Court in the Shirur Mutt case.
ERP refers to those practices that are fundamental or essential to a religion, and are protected under the right to freedom of religion in the Constitution of India.
Senior Advocate Abhishek Manu Singhvi, appearing for TDB, said,
"The moment Your Lordships allow the use of word 'essential' or 'integral', Your Lordships necessarily starts operating within the rubric of a concept called religion. You have to divide and categorize religion, without that you cannot do it. We are against that. Your lordships can achieve exactly the same results of regulation either by using the test of [Article] 25 2(a) or by using the opening words of 25 itself which says four tests or by saying that what is religion you decide by a subjective-objective test and the rest you put away. Otherwise, it becomes a license to permit judges or external adjudicators to decide the essential and non-essential component of what is religion. That cannot be... then your lordships don't know where to stop"
Please eschew and eradicate the essentiality or integral test, which has caused confusion in the case law, Singhvi urged the Court.
Singhvi conceded that an extreme practice not forming part of collective, institutional and denomination belief of a group or sect belonging to religion can be rejected because it does not constitute religion at all.
But courts cannot stigmatise practices that are connected with religion and trace back its lineage to the factual, genuine existence of such practices unless the same violates public order, health or morality under Article 26, he argued.
"Notwithstanding the above, if there is in fact hypothetically a religion whose collectivity genuinely believes in and can trace back its lineage to the factual, genuine existence of such practices, then the Court, having found that such a religion does in fact exist, cannot stigmatise such practices on personal or subjective judicial notions of abhorrent behaviour or imposed external societal norms, except under those three words in Article 26," he further said.
Singhvi also referred to the practice of nakedness of Digambar Jains.
"Now, I am not giving an example because I am a Jain, but this is a very good example. In any form of obscenity and morality, you cannot be allowed to roam naked. Digambar Jains, even today at big functions, the actual sadhu will come completely naked. There are a large number of women at that function who are actually doing the principal honours. I myself have been at this function. Now, Digambar Jain, by that set of standards, should be abolished. It is a very good example for the extreme proposition. Because nudity in all other forms is proscribed. But it is nobody’s case that Mahavira, who was the elder contemporary of Buddha in the 6th century BC, and who was the 24th Tirthankara, that religion which then branched out to Shvetambara and so many other traditions, will be abolished because of some external standard which will not find a warrant," he said.
Singhvi argued that Article 25(2)(b) has to be limited to throwing open of Hindu religious institutions of a public character and not private temples. He also referred to the restrictions that may apply once a person has gained entry to a religious pace.
"After you enter, for almost everything, Article 26 will take over. After you enter, now I have entered, I am this class or that class, I am not allowed to enter, law is there, no question, you cannot keep me out under Article 25(2)(b). After I have entered, I say 'I have a right equally, having entered, to do worship in a particular way in the sanctum sanctorum. Why not, because I have access, I have come inside.' There Article 26 will take over. If the collective belief of that religion or denomination does not permit anybody except him to do worship in the sanctum, then I cannot insist. Some do, some do not, it varies."
At this stage, Justice Nagarathna said that there cannot be discrimination when it comes to serving of food or that only a particular-caste people should sit in one room and other caste people should sit in another room.
"That is also forbidden within Article 25(2)(b). There can be reform on that," the judge said.
Singhvi responded that Articles 14, 15 and 16 will apply in such cases.
He also argued that if a law of social reform does not eviscerate or hollow out the religion, Article 25(2)(a) which is the provision in Constitution allowing State to regulate or restrict any economic, financial, political or other secular activity associated with religious practice,will prevail over Article 26(b) which lays down the right to manage religious affairs.
However, he also said that Article 26 has not been made subject to other provisions of the Constitution of India.
"It is evident from the language of the opening sentence of Article 26, in contrast, that Article 26 has not, that not has to be emphasised, been made subject to other provisions of Part III, unlike Article 25," Singhvi said.
Singhvi also argued that exclusion of females in Sabarimala temple was not solely based on gender. He said the exclusion of menstruating women has a direct nexus with the identity and manifestation of the deity.
"You are not dealing with a toy shop. You are not dealing with a restaurant. You are dealing with a deity who is an eternal brahmachari, who eschews all forms of grihastha ashram. Therefore, it is possible to argue why not 11 years, why not 49 years. But it is assumed that women in this age group would be antithetical to the very manifestation and identity of the deity. But those women can certainly visit Lord Ayyappa in many other temples. If they are so concerned, why should they want to visit this one temple which is unique in its form," he added.
Singhvi also argued that the beliefs and practices of a community have to be judged by that community's subjective belief.
"The Court is bound to accept the belief of the community, and it is not for the Court to sit in judgment on that belief," Singhvi said.
Singhvi further said that the permissible restrictions or derogations from the right to practice, profess and propagate religion, found in Article 25, were arrived at after detailed and meticulous deliberations and any other explicit or implied dilution of the right "would breakdown the delicate and intricate system of checks and balances envisioned by the framers."
Singhvi also contended that one cannot discriminate between people of same religion or denominations in appointments to their institutions
"Article 16(5) is intended to be an exception to Article 16(2) and other parts, inasmuch as such religious or denominational institutions can restrict, by virtue of Article 16(5), appointments to offices or governing bodies. Article 16(5), however, does not immunise, this is my submission, from the charge of discrimination those appointments on other discriminatory standards of race, caste, sex, descent, place of birth, provided such persons are of the same religion and denomination as the institution. So suppose only Hindus are allowed, but then the institution says only Hindus from the north will come, not from the south. Only Hindus who belong to a particular denomination will come. That you cannot do. Religion is immunised, not the others. At a social level, you cannot be so discriminatory."
Singhvi further delved into the concept of essential religious practice.
"The premise, the false premise, according to me, is that yes, this is religion, but now I, the Court, will see whether there is anything essential in this religion or not, and whether this is an essential part of the religion or not. That becomes a walk down a path which is full of problems. Whether it is religious or non religious, or as your Lordships put it, religious or secular, is an inquiry. But that inquiry also is limited by looking from the prism of the religious adherent, not by an objective prism of a judge. That is the way Shirur Mutt put it," Singhvi said.
In his submissions about constitutional morality, Singhvi said the phrase is not used in the Constitution anywhere. He added that it cannot be used as a ground for invalidation of legislation.
In agreement, Justice Nagarathna said,
"Legislation cannot be struck down on the ground of constitutional morality. It can be struck down on the ground of being violative of Part III or on the ground of legislative incompetence."
Singhvi added that any doctrine like constitutional morality brings in an external standard which becomes very dangerous to manage. CJI Kant remarked that the danger of constitutional morality is of the non-manageable standards of judging it.
"It needs complete subjectivity and individual opinion," CJI Kant added.
Singhvi said,
"It's an unruly horse..a dinosaur which my lords cannot ride."
Justice Amanullah asked why constitutional morality should not be interpreted to mean differently in different scenarios.
"Why blanket no reading at all," the judge said.
Singhvi responded that it can be used in case of constitutional silence or absence of legislation.
The arguments will continue on Thursday.
Some religious practices are indeed harmful and must be struck down, such as denying entry into temples for SC/ST persons, denying marriage for widows, Sati, and there must be more such that are directly harmful.
However, denial of entry to women who have not reached menopause is a relatively minor matter.
Perhaps the courts should not interfere in these cases.
Yet, how does one decide what is harmful and not harmful. A true dilemma articulated by the Supreme Court.