Sabarimala Reference | Can't Hollow Out Religion In The Name Of Social Reform, Supreme Court Says In Hearing

During the hearing of the Sabarimala reference, the Supreme Court on Wednesday orally commented that in the name of social welfare and reform, one can't hollow out a religion.

Justice BV Nagarathna, part of the 9-judge bench hearing the matter, made this observation while hearing the arguments of Senior Advocate Dr Abhishek Manu Singhvi regarding Article 25(2)(b) and its interplay with the right of a religious denomination to manage its own affairs conferred as per Article 26(b).

Article 25(2)(b) allows the State to enact law for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Appearing for the Travancore Devaswom Board, Singhvi argued that while Article 25(2)(b) can be claimed by all sects of Hindus to demand entry to a Hindu religious institution of public character, the religious denomination will have the right under Article 26(b) to regulate how the inner rituals must be performed. He advocated for a harmonious interpretation of Article 25(2)(b) and Article 26(b).

Singhvi quoted the observation made in the Sardar Syenda Judgment (Which struck down the Bombay Prevention of Ex-communication Act) that Article 25(2)(b) was not intended to “reform a religion out of existence or identity."

Justice Bagchi then asked if Singhvi was arguing that essential practices of religion should not be touched by a law enacted as per Article 25(2)(b). Singhvi replied that the present 9-judge bench will have to iron out the creases, without letting the essentiality doctrine to seep in. For context, Singhvi, for the TDB, is also opposing the essential religious practices doctrine, by arguing that the Constitutional protection cannot be restricted only to the esential religious practices, and that it is not for the Courts to determine whether a religious practice is essential or not.

Justice Sundresh asked why Article 25(2)(b) used the phrase "social reform", instead of the words "public order, morality, or health", which are used in the opening of Article 25.

Singhvi replied that it might have been to deal with certain practices, which cannot be upheld by any objective standard. He suggested that laws regulating personal laws could be regarded as social reform within the meaning of Article 25(2)(b).

Justice Sundresh also agreed, saying that the Hindu Succession Act could be an example of social reform.

At this juncture, Justice Nagarathna observed, "In the name of social welfare and reform, you can't hollow out the religion." Singhvi submitted that this was the reason on which the Ex-Communication Act was struck down in the Sardar Syedna case.

It was Singhvi's argument that Article 25(2)(b) should not be read so as to diminish the substantive right to freedom of religion guaranteed under Article 25(1). According to him, Article 25(2) is not a limitation on the freedom of religion, such as the grounds of public order, morality and health mentioned in Article 25(1).

The following propositions were advanced by him :

(a) 25(2) is not a head of derogation in the same sense as heads provided in 25(1).

(b) 25(2) is drafted not as a prohibitory or restrictive clause but a clarificatory and enabling one to permit and enable the State to make a law dealing either with various ancillary aspects of religious practice and / or social welfare and reforms.

(c) Though, the powers under 25(2), under both clauses (a) and (b) are undoubtedly wide to enable legislation to deal with ancillary and subsidiary activities as aforesaid or social reforms, it cannot be read to reduce to a vanishing point the basic right under 25(1).

(d) 25(2)(b) may not and should not be interpreted so as to decimate or extinguish the primary right under 25(1). To interpret, it otherwise would mean that the decimation of the main religious right under 25(1) on the alleged basis of social reform without any mandate arising from the derogable standards of the words “public order, morality and health and to the other provisions of this Part”. Such an independent and plenary right to invade and derogate on the grounds of social welfare and reform would swallow up the whole of Article 25 (1) itself. None of the major judgments Shirur Mutt nor Devaru, can or should be interpreted to suggest otherwise.

Also from the hearing - Sabarimala Reference | Travancore Devaswom Board Disagrees With Nair Service Society's Argument On Articles 25(2)(b) & 26(b)