Excluding Other Denominations From Temples Will Affect Hinduism : Supreme Court In Sabarimala Reference Hearing

During the hearing of the Sabarimala reference, the Supreme Court on Thursday commented that the exclusion of other denominations from denominational temples will affect Hinduism.

The comment was made by Justice BV Nagarathna, who is part of the 9-judge bench which is hearing the Constitutional issues referred in the Sabarimala review matter.

Justice Nagarathna made the observation while Senior Advocate CS Vaidyanathan, who is appearing for the Nair Service Society and religious organisations from Kerala, was making his submissions. Vaidyanathan put forth an argument that Article 26(b) - which gives the right to a religious denomination to manage its own affairs - would prevail over Article 25(2)(b) - which allows the State to make law for reform within a religion or to throw open all Hindu religious institutions of public character to all sections of Hindus. 

Vaidyanathan argued that the judgment in Sri Venkataramana Devaru v. State of Mysore, which held that Article 25(2)(b) prevailed over Article 26(b), was wrongly decided. Devaru was a case pertaining to the Moolky temple, which was claimed to be a denominational temple belonging to Gowda Saraswath Brahmins. The applicability of the Madras Temple Entry Authorisation Act, which allowed the entry of all sections of Hindus, was in question in this case, on the ground that, being a denominational temple, all sections could not claim the right to enter it.  The Supreme Court held that the Temple Entry Act applied to the Moolky temple, on the ground that Article 25(2)(b) prevailed over Article 26. 

Vaidyanathan questioned the reasoning of the judgment that Article 25(2)(b) prevailed over Article 26. According to him, Article 25(2)(b) was only an enabling power for the State, whereas Article 26(b) was a fundamental right in itself; so, Article 25(2)(b) cannot control Article 26. He argued that the State cannot get into the question of whether a religious practice was essential, and "State" included the judiciary as well.

At this juncture, Justice Nagarathna made the comment, clarifying that she was not speaking of Sabarimala per se.

"One apprehension, keep aside the controversy of Sabarimala. If you say the right of entry, in the context of Venkataramana Devaru, where they said anybody other than Gowda Saraswat Brahmin is excluded, it will affect negatively Hinduism. Everybody must have access,  keep aside the Sabarimala controversy, to every temple and mutt. If you say it is a matter of religion that only my section must attend my temple and no one else, that is not good for Hinduism," Justice Nagarathna said.

"We will be dividing the society," Justice Aravind Kumar supplemented Justice Nagarathna.

Justice Nagarthna said that regardless of the question Sri Venkataramana Devaru was correctly decided, "Let the religion not be adversely affected."

Vaidyanathan replied that in reality, there are private temples, and ancient tharwads in Kerala which have their own family temples, where only their members go. Justice Nagarathna said that she was not referring to such private temples.

Vaidyanathan said that denominational temples would not be depending on public funds and will be sustaining based on only on their funds. Justice Nagarathna said that it would be "counter-productive" to the denomination. "That is a matter for them to decide," Vaidyanathnan replied.

"The question is, is it contrary to the Constitutional prohibition. If it is not contrary to public order, morality and health, what are the realistic consequences in the society (may not be a concern for judiciary)" the senior counsel submitted.

Justice Nagarathna then said, "Keep aside Sabarimala. Generally, if you say only persons only of Gowda Saraswat Brahmins must only come to a temple, followers of Kanchi Mutt must only go to Kanchi,  they should not go to Sringeri, followers of Sringeri must not go elsewhere..."

Vaidyanathan said that it was a reality and it was for each denomination to think about that.

Justice Nagarathna stated that the State can step in under Article 25(2)(b) to ensure access to temple to all sections. 

Justice Aravind Kumar also told Vaidyanathan, "That is why we said, don't pitch it too high", referring to his argument that Article 26(b) supersedes Article 25(2)(b). 

Vaidyanathan argued that holding that Article 25(2)(b) will prevail over Article 26(b) will uniquely affect the Hindu religion only, since Article 25(2)(b) allows the State to make law only to make Hindu temples open to all sections. Justice Nagarathna said that Article 25(2)(b) came "because of a history."

Justice Bagchi stated that Article 25 will have to be read along with Article 17, which bars untouchability. Vaidyanathan agreed that public temples must be open to all, but added that the same cannot be insisted for denominational temples.

The Chief Justice of India then interjected to say that Vaidyanathan's arguments may not survive for two reasons - (1) it was directly against the langauge of Article 25(2)(b), and (2) and assuming Article 25(2)(b) will not control Article 26, Article 26(b) itself is governed by morality, which includes Article 17. "Article 17 is a principle of morality," CJI Surya Kant said.

"One other way of looking at its, if you restrict it to that particular denomination, it is contrary to morality under Article 26 itself," Justice Nagarathna.

"That is a possible view, " Vaidyanathan said.

"We have to unify," Justice Nagarathna stated. 

Live updates from today's hearing can be read here.

Also from today's hearing - Sampradayas Attached To Temple Must Be Followed While Visiting It: Supreme Court In Sabarimala Reference Hearing