Sabarimala Reference | Internal Autonomy Of Religion Must Be Protected : Jain Organisations Tell Supreme Court

Certain Jain organizations have filed submissions before the Supreme Court in the Sabarimala Reference matter, contending that regulation of religious practices should be left upon adherents of the religion and a person belonging to one religion should not be permitted to challenge practices of another religion.

The applicants contend that issues which concern the internal authority or autonomy of a religion to define and govern its own practices are protected under Article 25. They argue that whether a particular practice is religious or not is not for the courts to decide. Rather, it is for the religion's adherents to decide, unless there is a dispute between different factions within the religious denomination which cannot be resolved internally.

"the State – whether in the form of the Legislature, Executive, or the Courts – ought not to have a role in defining, limiting, or adjudicating upon what a community genuinely holds to be its religious practice, so long as there is no dispute within that community which cannot be resolved through the internal mechanisms recognised in the religion of that community."

As per the applicants,

"religion is not a creation of the Constitution, nor is it an area whose legitimacy is derived from the State. Consequently, the creatures of the Constitution, viz. the Legislature, Executive, and the Courts, cannot seek to define the contours of an individual's religion. It is submitted that the State ought not to be permitted to determine what is protected under Article 25 by arrogating to itself the power to determine what is or is not a part of an individual's religion."

The applicants aver that Courts cannot assume an ecclesiastical jurisdiction to decide disputes regarding religious practices.

"the constitutional guarantee of religious freedom cannot be interpreted in a manner that authorises the State, or constitutional courts for that matter, to sit in an 'ecclesiastical' jurisdiction to determine the possible or appropriate content of a religion or religious practice."

It is highlighted that Article 25, which guarantees freedom of religion, comprises the word 'practice' of religion, and not 'worship' of religion, thus restricting the scope of interference. "'Worship' would have confined the guarantee to ritual acts in a place of religious assembly. 'Practise', by contrast, extends to the full range of activities which a religious group genuinely holds to be mandated by its faith — including rites, ceremonies, observances, the administration and management of religious places of worship and endowments, and the conduct of daily religious life or whatever genuinely is practised as a religious practice, thus restricting the scope of the secular activities that the State may regulate or restrict."

It has been contended that determination of the scope and ambit of religious practice is itself a religious practice, within the ambit of ecclesiastical jurisdiction.

As per the applicants, Courts can interfere with disputes concerning religious practices only under two circumstances:

(1) When a dispute between different factions within a religious denomination cannot be resolved internally. A civil Court may decide the issue to that limited extent by considering it as a question of fact, not law, and State (legislative or executive) shall have no role in this regard.

(2) When the State passes a law impinging upon religious practices of a particular group, a constitutional court shall decide. Although, such interference must also be to a limited extent and the Court must not entertain a question whether a particular religious practice is integral, essential or part of the religion.

"The proper test for legislative competence under Article 25(2) is not whether a practice is 'essential' or 'integral' to a religion as determined by a court, but whether it is genuinely held and observed by the religion...What the courts are required to determine is only whether the impugned action is actually traceable to the one of the grounds stated in Article 25, such as public order, morality, health, or 'other provisions of the Constitution' based on a strict construction."

The applicants also urge that the term "essential" was introduced in the Supreme Court's decision in Shirur Mutt, while it does not find place in any of the 6 grounds contained in Article 25 based on which State can interfere with religious practices.

It is argued that if the subject activity is taking place inside the place of worship, then it is a religious activity. "The administration of the place of worship and the management of its finances is clearly a religious activity – protected under Article 26 – and cannot be interfered in by the State under the guise of Article 25(2)(a) of the Constitution."

The applicants further contend, "In deciding whether a religious practice is 'part' of a religion, or only loosely 'associated' with it, the beliefs, scriptures, and tenets of the religion have to be considered. the deliberate use of the word 'social' — and not 'religious' — in Article 25(2)(b) makes it distinctively clear that the State may make laws only with respect to the social dimension of religion, not the religious dimension per se."

It is also submitted that Articles 25 and 26 should be elevated to the status of being part of basic structure of the Constitution. The applicants state that there is interconnection between Articles 25, 26 on one hand and Articles 14 (right to equality), 19 (freedom of though and expression) and 21 (right to life and personal liberty) on the other. Moreover, secularism, which has consistently been recognized as part of the basic structure, is also linked to freedom of religion.

In the context of State acquisition of religious properties, the applicants distinguish between (i) properties which are themselves places of worship (such as natural sacred sites and created places of worship), and (ii) properties dedicated to a place of worship or religious denomination. It is stated that the State cannot acquire naturally sacred sites, as they are irreplaceable and their sanctity is inseparable from their location. Properties dedicated to a religious denomination, on the other hand, may be acquired by the State under limited circumstances.

'Morality' should not be unerstood as 'constitutional morality'

The applicants also argue that the term "morality" in Articles 25 and 26 is not be understood as "constitutional morality". A secular court cannot assume a "paternalistic" role by declaring a genuinely held religious belief as immoral, they claim. An example in this regard is given regarding position of Jain women in ascetic life - earlier, they were not allowed to renounce worldly life as monks, but over time, the position has changed through internal reforms within the religion.

At last, the applicants emphasize that a person not belonging to a particular religious denomination ought not to be allowed to challenge another religious denomination's practices through a PIL.

A 9-judge bench of the Supreme Court will commence hearing the issues raised in the Sabarimala reference on April 7.

The submissions were filed by Gitarth Ganga, Jyot, Shree Tapagacchiya Atma Kamal Labdhisurishwarji Jain Gyan Mandir Trust and Paushadhshala, Shree Mumbai Jain Sangh Sangathan, and Babu Amichand Panalal Adishwarji Jain Temple Trust.

The intervention application of the Jain organisations has been settled by Senior Advocate Krishnan Venugopal.

Earlier, the All India Muslim Personal Law Board also filed its submissions in the reference, arguing that it was not for the Courts to determine if any practice was essential to any religion.

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