Not Reviewing Sabarimala Verdict In Reference; Only Considering Constitutional Questions, Says Supreme Court
The Supreme Court today(April 7) began hearing the Sabarimala temple reference, which has raised larger questions of law, including on religious denomination and essential religious practice.
The arguments were opened by Solicitor General Tushar Mehta, who clarified the Union's position that the 2018 Sabarimala judgment, allowing all sections of women to enter the temple, was wrongly decided. But the bench said that since the contour of the present reference is about the interpretation of Articles 25(Freedom of conscience and free profession, practice and propagation of religion) and 26(Freedom to manage religious affairs), the merits of the Sabarimala judgment won't be examined.
Before the hearing commenced, Senior Advocate Indira Jaising, appearing for the original writ petitioners, submitted that her understanding was that the nine-judge Bench was not examining the review petitions, and that the review would be decided separately by the five-judge Bench after the reference questions were answered. The Chief Justice of India indicated that Jaising's understanding was correct and observed that the fate of the review petitions may ultimately depend on the answers rendered in the reference.
Does Article 25 cover gender equality?
Mehta took the Court through the Constituent Assembly debates on Articles 25 and 26.
He argued that religion in India is enormous in terms of the fact that there are sub-denominations within it, reflecting internal plurality. He also pointed out that Sabarimala has wrongly interpreted the words 'equally entitled' used in Article 25 to include gender equality. He stated that gender equality has been taken care of in Articles 14 and 15, and in Article 25, these words were added in the backdrop of the prevailing realities of that time—partition, riots and violence.
"There can be denomination and denomination practices that we have to respect. Everything is not relatable to human dignity or bodily freedom. If I go to the Mazar or the Gurdwara and if I have to cover my head, I can't say you are taking away my dignity or right or choice. This is what Sabarimala says, your right of choice is taken away, It is not taking away the autonomy but respecting the faith and belief of that religion," he said.
Similarly, he made strong reservations against Article 17 being extended to say that discriminating against menstruating women amounts to untouchability. He argued that Article 17 was added to the Constitution to address caste-based discrimination prevailing in society. "Sabarimala says all sections of Hindus were introduced so that it is gender-specific. It is not gender-specific. I am sorry, one opinion in Sabarimala says Article 17 applies to women. You are treating women as untouchables. That is one opinion-something I have very strong exception to it. All section had the background of caste and not gender. India is not that patriarchal or gender-stereotyped society as the West understand. "
Justice Nagarathna responded that she doesn't understand how untouchability in terms of women's entry to temples can be argued.
It is in this context that he pointed out that Article 26 not only uses the words 'denomination' but also 'sections thereof'. He stated that the 2018 Sabarimala judgment failed to consider the aspect of 'sections thereof'. He took an example of Nizamuddin Auliya Dargah or the Shirdi temple and submitted that people from all religions go to these places, and questioned whether they will also cease to be denominational places just because all sections were welcomed.
To What Extent Can the Court Interfere
Mehta then referred to the Dargah Committee judgment and stated it introduced the problematic essential religious practice(ERP) doctrine. He stated that Courts can't go into such questions.
To this, Justice Bagchi took an example of the Evidence Act and pointed out that Courts are empowered to examine the testimony of expert witnesses even though they are not experts in science.
"If your proposition is taken to a logical conclusion, courts are essentially not experts in science, but the Evidence Act empowers the court to examine the opinion of experts and becomes the expert of experts. There is a provision in which the law permits the Court to use objective parameters to come a correct subjective decisions on whether these are long standing practices or usages or not ," he averred.
To this, Justice Sundresh added that the only difference is that science is based on logic and, therefore, it could be reasoned that there are no such contours of religion which is based on faith.
To Mehta's argument on the Court's limited power of judicial review on matters of faith, Justice Bagchi said the Court is not questioning whether faith exists or not, but how that faith is being perceived.
He remarked: "There is a difference between opinion as to faith and the faith perceived. One can have a particular faith, but whether opinion exists in that denomination or not is separate from the testing of what the faith itself is. The religious head says this is my faith, and followers abide by that. The fact that this is my faith, stated by the religious head, is something which is within the domain of the court to apply an appropriate forensic criterion or tool, but whether that faith exists is for the religious head to decide."
Interpretation of Articles 25 and 26
During the hearing, at one time, Justice Bagchi asked if Mehta was arguing that Article 26(b) prevails over Article 25. To this, SG submitted that Article 26 can't be considered as a separate Island, isolated from other provisions of Part III. He said that it can't be "pitched" that high, but it can't be given an expansive meaning to even include gender equality.
"Article 26(b) is not a standalone island, it will have to be read with Article 25 and other parts of the Constitution," he said.
Justice Bagchi made a point that while Article 25(1) uses the words "subject to public order, morality and health and to the other provisions of this Part," Article 26 only says "subject to public order, health and morality". This means that while Article 25 can be subjected to other provisions, Article 26 may not be. He added that the Court is fully aware that it has to be "compatible" with other provisions.
Mehta responded that there has to be a purposive interpretation given to Articles 25 and 26.
Merits of Sabarimala can't be looked into
At one point in time during the hearing, when the Court was discussing Article 17, Justice Sundresh stated that the Court did not need to go into the Sabarimala judgment because it is not sitting in review.
It happened when Justice Nagarathna was asking how Article 26 applies to the Sabarimala case, and SG Mehta responded that the 2018 judgment held that Lord Ayyapa was not a religious denomination and therefore could not get protection under Article 26(b).
To this, Justice Sundresh said: "We need not go into Sabarimala. Article 25 applies to Hindu temples of public character and Article 26 deals with denomination. Only commonality is that both of them are subject to public order, morality and health."
SG Mehta clarified that he will not argue on review of Sabarimala but added: "journey of judicial evolution of Shirur Mutt ends at Sabarimala and in that process I will read."
CJI then said: "In the reference before the nine-judge bench, out of the seven questions, questions two and three directly pertain to Article 26. Therefore, essentially arguments will have to come for both sides on Article 26 also and probably we will have to respond to it. So, ultimately, it may or may not have any direct or indirect impact while deciding a particular case, but what is the true meaning and scope of the Article, probably that will be required to be gone into."
SG Mehta said that he will not make arguments whether Sabarimala was right or wrongly decided, but he will have to take the Court through the judgment in order to enunciate the evolution of judicial policy on this.
A bench headed by Chief Justice of India Surya Kant and comprising 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 heard the reference.
Arguments will continue tomorrow.
Background
In 2018, by 4:1 ratio, the Supreme Court constitution bench of then Chief Justice Dipak Misra, Justice R F Nariman(retired), Justice A M Khanwilkar(retired) and Justice D Y Chandrachud(retired) allowed entry of women of all ages, holding that devotion cannot be subjected to gender discrimination. The bench held that religious practices must conform to constitutional morality and cannot justify discrimination.
The bench also held that Ayyappa devotees does not constitute a separate religious denomination. Rule 3(b) of the Kerala Hindu Places of Public Worship(Authorization of Entry) Rules 1965, which prohibited entry of women in Sabarimala, was also struck down as unconstitutional.
Justice Indu Malhotra(retired) dissented. She stated that Courts should not interfere in the issues of religious faith.
The Bench was delivering the Judgment in a 2006 PIL filed by Indian Young Lawyers Association challenging the centuries-old tradition of Sabrimala Temple banning entry of women of menstruating age(10-50) inside the temple.
Subsequently, various review petitions were filed challenging the judgment. CJI Dipak Mishra, who was a part of the original bench, retired. Justice Khanwilkar, who was in the majority in the original judgment had a change of opinion. By 3:2, the bench decided to keep the Sabarimala review pending until a larger bench decides questions related to essential religious practice.
The majority judgment observed that the issue relating to restriction of women in places of worship is not limited to Sabarimala alone and the some arises in respect of cases concerning entry of Muslim women in a Durgah/Mosque as also in relation to Parsi women married to a non-Parsi into the holy fire place of an Agyari. There is also a case pending regarding the legality of practice of Female Genital Mutilation in Dawoodi Bohra community.
The majority judgment also observed that there was an apparent conflict between the judgments in Shirur Mutt case and the Dargah Committee Ajmer case. While the former held that the question regarding what are essential religious practices should be determined by the denomination itself, the latter decision held that Courts can exclude secular and superstitious beliefs from essential religious practices. Seven issues were framed and referred to a larger bench.
Therefore, a nine-judge bench was constituted to settle the issues, however it excluded judges who had delivered the original judgment. In 2020, the nine-judge bench headed by CJI SA Bobde, Justices R Banumathi, Ashok Bhushan, L Nageshwara Rao, Mohan M Shantanagoudar, S Abdul Nazeer, R Subhash Reddy, BR Gavai and Surya Kant (now CJI), upheld the reference. It stated that in a review petition, larger issues of law can be referred. Subsequently, the issue of ex-communication in Dawoodi Bohra committee was also referred to a larger bench in 2023.
The issues before a nine-judge bench are:
1. What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
2. What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?
3. Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?
4. What is the scope and extent of the word 'morality' under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?
5. What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?
6. What is the meaning of expression "Sections of Hindus" occurring in Article 25 (2) (b) of the Constitution of India?
7. Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?
Case Title: KANTARU RAJEEVARU Versus INDIAN YOUNG LAWYERS ASSOCIATION THR.ITS GENERAL SECRETARY MS. BHAKTI PASRIJA AND ORS., R.P.(C) No. 3358/2018 in W.P.(C) No. 373/2006
Also from today's hearing-