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...

Not Reviewing Sabarimala Verdict In Reference; Only Considering Constitutional Questions, Says Supreme Court

Gursimran Kaur Bakshi

Tags