Sabarimala Reference : Consultation With Religious Scholars Needed Before Judicial Review Of Traditions, Kerala Govt To Supreme Court

The State of Kerala has told the Supreme Court that judicial examination of long-standing religious practices should ideally be undertaken only after consulting religious scholars and social reformers with authentic knowledge of the faith concerned.

In written submissions filed in the reference before the 9-judge bench arising out of the Sabarimala review , the State submitted that when courts examine religious traditions connected with beliefs followed for centuries, they should first solicit the views of eminent religious scholars and reputed social reformers of the concerned religion.

The nine-judge is examining broader Constitutional questions relating to religious freedoms under Articles 25 and 26 of the Constitution.

Responding to the issues framed in the reference, the State argued that when courts undertake judicial review of religious practices under Article 25 of the Constitution, the inquiry should not focus on whether the practice appeals to reason or sentiment. Instead, the question should be whether the belief is genuinely and conscientiously held as part of the religion.

It submitted that the determination of whether a practice forms an essential part of religion must primarily be assessed with reference to the doctrines and beliefs of the religion and the views of the community following it.

“Any judicial review into any religious practice followed for so many years connected with the belief and values accepted by the people must be after wide consultation with and after soliciting views of eminent religious scholars and reputed social reformers of that religion,” the State submitted.

The State, which had earlier supported women entry in the Sabarimala temple, and had faced intense backlash over allowing women to visit the temple, said that its previous experience supported the view that consultation with religious scholars was necessary in such matters.

“Previous experience in the matter of Sabarimala shrine and the response of devotees including women devotees would support the above submission,” it said.

On Interplay Between Articles 25 And 26

Addressing the relationship between individual religious rights under Article 25 and the rights of religious denominations under Article 26, the State submitted that laws enacted under Article 25(2), particularly for social reform or for opening Hindu religious institutions of a public character to all classes and sections of Hindus, would prevail over denominational claims.

According to the State, such laws would be binding even on denominational temples, and religious denominations cannot rely on Article 26 to avoid compliance with such legislation.

Meaning Of 'Morality' In Articles 25 And 26

On the question of “morality” as a constitutional limitation on religious freedom, the State submitted that the term should be understood in the sense of constitutional morality.

It stated that morality under Articles 25 and 26 must be rooted in constitutional principles such as equality, prohibition of discrimination and untouchability, protection of life and personal liberty and promotion of social welfare.

Scope Of Judicial Review

The State also addressed the extent to which courts can review religious practices. Relying on the principles laid down in the Shirur Mutt case, it submitted that the determination of whether a practice is an essential part of religion must primarily be assessed with reference to the doctrines and beliefs of that religion.

According to the State, courts should examine whether the belief is genuinely and conscientiously held by the community rather than whether the practice appears rational or acceptable.

The State further reiterated that judicial examination of long-standing religious practices should ideally involve consultation with religious scholars and social reformers.

Meaning Of “Sections Of Hindus”

The State also clarified that the phrase “sections of Hindus” under Article 25(2)(b) includes any division or sub-division within the Hindu community, such as castes or sub-castes.

According to the State, the provision was introduced in the Constitution primarily to enable legislation opening Hindu religious institutions to communities that were historically denied entry, but its scope extends to all classes and sections of Hindus, including women.

PILs Challenging Religious Practices

On the issue of locus standi, the State submitted that ordinarily a person not belonging to a particular religious denomination may not have sufficient interest to challenge the practices of that group through a public interest litigation.

However, it stated that an exception may arise where a grave human rights violation is alleged to be occurring in the name of religion.

The written submissions were settled by Senior Advocate Jaideep Gupta and filed through Standing Counsel for the State of Kerala, Nishe Rajen Shonker.

Background

The original writ petition filed in 2006 had sought directions to allow women aged between 10 and 50 to enter the Sabarimala temple and to declare Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 unconstitutional for allegedly violating Articles 14, 15 and 25 of the Constitution.

In September 2018, a five-judge Constitution Bench by a 4:1 majority held that the exclusion of women between the ages of 10 and 50 from the temple violated their right to practice religion and struck down Rule 3(b) as unconstitutional. Justice Indu Malhotra delivered the lone dissent.

Subsequently, review petitions were filed. In November 2019, a five-judge bench by majority kept the review petitions pending and referred broader questions concerning the scope of religious freedom and essential religious practices to a nine-judge bench.

The nine-judge bench is presently examining broader constitutional questions relating to the scope of religious freedom, the doctrine of essential religious practices and the limits of judicial review, the answers to which will have a bearing on the pending Sabarimala review petitions.

The Court will hear the reference on April 7.