Sabarimala Reference | If Believer Is Prevented From Touching Deity Only On Account Of Birth, Can Constitution Intervene? Supreme Court Asks

On the sixth day of the hearing in the Sabarimala reference, the Supreme Court orally asked if the Constitution can intervene if a believer is prevented from touching the deity only on account of his birth identity.

Justice Ahasanuddin Amanullah, member of the 9-judge bench, posed this query to Senior Advocate V Giri, who argued that the right of a believer under Article 25 to enter a place of worship must be in sync with the characteristics of the deity. Giri is appearing for the Thanthri (Chief Priest) of the Sabarimala Temple, who is the lead review petitioner seeking review of the 2018 judgment which allowed the entry of women of all age groups to the Lord Ayyappa Temple.

Giri's argument was that the right to worship under Article 25 can be claimed only by a person who has a belief in the deity, including the particular characteristics of the deity. "No person who believes in the idol of the temple, and would consider the deity as his Lord, would act in derogation to the essential characteristic of the temple because such a practice can't be treated as a part of practice of his religion. I have a right to practice my religion under Article 25, and therefore, when I go to a public place of worship, I can't lack in the belief and still want to go to the place of worship for the purpose of worship. My right under article 25(1), in so far it encapsulates the right to enter the place of worship, will have to be in sync with the practices that are carried out by the temples as such and the characteristics of the deity. If the characteristics of the deity are as such that it's not possible for me to go there, if I am a woman(since it's on merits of the case, I am not touching it), it has to be in sync with the characteristics of the religion," he submitted.

He submitted that the characteristic of the deity in Sabarimala is that the deity is a permanent celibate.

At this juncture, Justice BV Nagarathna reiterated her earlier observation, "A believer will not question the rationality and its no business for a non-believer to question it because he is a non-believer anyway."

Justice Prasanna B Varale at this juncture posed whether a genuine believer, who has exposure to new technologies and philosophies, can question some age-old practices. He commented that traditions and beliefs can change over time. "Is it taking us to that submission that if I am a believer, I may not be rational,  if it's a long-standing practice, accept it and I should follow it without going into all other aspects. It is possible that a believer at some time in earlier years was thinking this way, but a believer now, with the advance of technology, education, thinking and having exposure to other philosophies, can we say that a believer, if he believes, it's okay and fine. You need not to be a rational," he said.

Taking a cue from Justice Varale, Justice Joymalya Bagchi asked if it was open for a member of the denomination to question some of the denominational practices, and what should be the Court's response in such a situation.

"You say a religious practice is unique to the denomination, and therefore, anyone who believes and is a part of the denomination is a believer and naturally will defer to it. If that argument holds, then will you agree that it will be contrary to an inner debate in the denomination itself, with regard to what ought to be a religious practice itself? In this situation, what would be the role of the court?

Let us say, a person who is a believer comes to the court and challenges the belief of the denomination itself, which is being put on canvas as a religious practice of the denomination. He says, no this has no ancient antiquity. this is not connect to the main core faith which we all profess. In this situation, will a believer will or will not be in a position to challenge the denominational claims of matters of faith?" Justice Bagchi asked.

Giri replied that it is not within the bounds of a believer to question the denominational practices, because that would mean there is no belief.  "If I go to the temple for the purpose of worship, then whatever is an integral part of the manner in which the deity is consecrated, and the deity is worshipped and the temple is maintained, it is out of bounds for me in sofar as Article 25 is concerned because this is a part of the practice of my religion which alone is protected."

Justice Sundresh also seemingly agreed with Giri by saying that the Court may not entertain a challenge at the instance of a sole believer who was questioning a practice followed by the majority. "Let us say the denomination consists of 100 persons, and they constitute a common belief, and one stands up and say, I don't agree with this particular belief. So, as you rightly put it, your question is, you stand apart because adjudicating upon his right by a constitutional court under articles 25 and 26 would be a problem because it is not your belief, but it's a belief of the 99. So that is protected under Article 25 and it can be raised under Article 26," Justice Sundresh said. Justice Sundresh added that while upholding one's right, the rights of others cannot be interfered with.

Giri added that a person who does not agree with a temple practice cannot insist upon the right to go to that temple and question that practice.  "If I may not agree, then I am entitled and have all the freedoms to practice it in the manner in which I would but I can't go to a public temple and then say I am questioning this."

At this juncture, Justice Amanullah made the observation if a person is excluded from approaching the deity only on account of his birth, would it be a Constitutional violation?

"Putting an extreme example, I go to a temple, my fundamental belief is that he is the Lord, he is my creator. He has created me, right? I am totally devoted. But there, I am told that, because of your birth or your lineage, for certain restrictions, permanently, you are not allowed to touch the deity. Will the constitution to the rescue? The argument is there can't be a difference between the creator and his creation.

Suppose I am going, and somebody throws mud, I clean myself, I have to be in a decent position to approach the deity in a pure way. That you can decide what purification means, but then the permanent disability that I can't touch my creator, I am a strong believer of that. He is my creator. Will the Constitution not come? Because ultimately, what you are projecting is that he is the god, he is the creator, but creation will not be able to touch the creator? To what extent you limit it?

And you say, no its totally [not possible]. Somebody, just because of birth, he can't and he can't change in this lifetime. So why only an archakas particularly? How should the constitution not come in with it? 

Its a permanent disqualification just on the basis of something which I have no control in future and i can't change my position, even if I want to."

Giri then said that if a believer is excluded only on account of his birth identity, then it is not justifiable.

"If it's merely birth which constitutes a disqualification for a person to become an archaka, then in my respectful submission, that would be wrong and that would be invalid," Giri said.

Justice Sundresh said that this situation can be addressed by Article 25(2)(b), which allows for law-making for social reform. "That will come under article 25(2)(b)-social reform," he said.

Justice Nagarathna then weighed in to say that prescribing that only persons with certain qualifications can perform the rituals as per the temple traditions will not be untouchability.

"If the practice associated with a particular deity invokes certain agamas, certain way of worship and one of which may be that persons who are qualified to do that worshop only can do that workship. Therefore, a believer believes that only certain persons with qualifications can do that worship and the benefit of that worship, the believer also gets. In some Shiva temples, you can put water on the lingams,  but in other temples, you can't because that is part of what they call it as anushthanas or the practice. It is nothing to do with untouchability as such."

Justice Mahadevan then stated that the Supreme Court's judgment in Adi Saiva Sivachariyargal N.Sangam has addressed this issue.  

Giri concluded his arguments by submitting, "However, irrational it may appear to persons who do not share the religious belief, the view of the denomination must prevail, for it is not open to the court to describe as irrational that which is a part of the denomination."

The hearing is progressing. 

The bench comprising Chief Justice of India Surya Kant, 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

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