New Delhi:
No religion can be “hollowed out” in the name of social welfare and reform, the Supreme Court said today while hearing petitions seeking a review of its order allowing the entry of women of child-bearing age in the Kerala’s famous Sabarimala temple. Essential practices cannot be stripped away from a religion in the name of social reform, the nine-judge bench said, pointing out that one of the most difficult tasks is to declare the beliefs of millions of people as incorrect.
The Bench, headed by Chief Justice of India Surya Kant, is currently hearing arguments regarding key Constitutional questions linked to the Sabarimala case, specifically one that debates the balance between freedom of religion and social reform.
Back in 2018, the Supreme Court had ruled that women of all ages must be allowed in Sabarimala temple. “Restrictions can’t be treated as essential religious practice,” a five-judge bench of the top court had said, calling the custom of barring women and girls between 10 and 50 years from entering the shrine “almost like untouchability”.
During Wednesday’s hearing – while responding to arguments concerning the maintainability of Public Interest Litigations in religious matters – Chief Justice Surya Kant remarked that perhaps the most difficult task for the court is facing is how to declare that the beliefs held by millions of people are incorrect or erroneous.
Read: Exclusion From Temples Not Good For Hinduism: Top Court In Sabarimala Hearing
Justice MM Sundresh questioned if the court can pass judgment on such questions without first hearing the representations of the millions of people involved.
Justice BV Nagarathna expressed similar concerns, saying such PILs should not be entertained when the petitioner acts merely as an interloper. “We cannot hollow out a religion in the name of social welfare or reform,” she added.
Appearing before the Bench on behalf of the Travancore Devaswom Board which runs the 800-year-old temple, senior advocate Abhishek Manu Singhvi explained the interplay between Article 25(2)(b) and Article 26(b) of the Constitution, arguing that both provisions must be interpreted in a balanced manner.
Article 25 grants every individual freedom of religion, whereas Article 26 empowers religious institutions to manage their own religious affairs. Conversely, Article 25(2)(b) authorizes the government to enact laws for social reform and to permit entry to religious places for all sections of society.
While all Hindu sections may assert their right to enter temples, a religious institution must retain its prerogative to determine how it conducts its internal religious rituals. When drawing up laws, it is imperative to ensure that the fundamental identity of the religion remains unimpaired, he argued.
Read: Assam To Kanyakumari, Centre Points To Temples That Restrict Entry Of Men
Justice Joymalya Bagchi questioned whether this implies that the “essential practices” of a religion cannot be altered through legislative means.
Singhvi submitted that it is not for the court to determine which religious practices are essential and which are not. He urged the court to discard the “essential religious practices” test, contending that it wrongly permits judges to determine what constitutes the core of a religion.
“The moment Your Lordships allow the use of the word ‘essential’ or ‘integral’, Your Lordships necessarily start operating within the rubric of a concept called religion… it becomes a license to permit judges or external adjudicators to decide the essential and non-essential component of what is religion,” he said. Religious beliefs and practices must be assessed from the standpoint of the community that professes them, rather than through external or judicial standards, he argued.
Read: Opinion | Faith, Ballot and Sabarimala: Why Left Softened Its Stand Ahead of Kerala Polls
Singhvi further contended that once a practice is shown to be conscientiously held as part of a religion, it should receive constitutional protection, subject to limitations of public order, morality, health, and other fundamental rights under Article 25.
Justice MM Sundresh, meanwhile, raised the question as to why the term “social reform” was employed in Article 25(2)(b). To this, Singhvi said such measures were necessary to eradicate certain social evils, and laws enacted for this purpose may be construed as social reform.
The hearing will continue on Thursday.
For centuries, women of menstruating age have been restricted from entering the Sabarimala temple, where devotees consider its deity, Lord Ayyappa, a celibate.
In his judgment, then Chief Justice of India Dipak Misra had said that devotion cannot be subjected to discrimination and patriarchal notion cannot be allowed to trump equality in devotion.
The Travancore Devaswom Board had told the court that the ban is not anti-women and suggested that the court steer clear of sitting in judgment on religious matters.
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