SC Reserves Order on Sabarimala, Women’s Entry Into Religious Places

New Delhi: The Supreme Court on Thursday reserved its order on pleas related to alleged discrimination against women at religious places, including Kerala’s Sabarimala temple, and on the ambit and scope of religious freedom practised by different faiths.

A nine-judge Constitution Bench headed by Chief Justice of India Surya Kant reserved its verdict after hearing the parties for 16 days. The Bench asked them to file comprehensive written submissions by May 29.

During the hearing, the apex court said the power of judicial review was a constitutional duty and that it could not give up its responsibility in matters concerning social reform and welfare.

The observation came during the hearing by the CJI-led Bench comprising Justices B.V. Nagarathna, M.M. Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B. Varale, R. Mahadevan and Joymalya Bagchi.

Senior advocate K. Parameshwar, who is assisting the court as amicus curiae, submitted that the primary responsibility for social welfare and reform lies with the legislature, which has a constitutional mandate. However, he said this did not mean that the court was powerless in certain circumstances. The amicus said the judicial role was neither that of an overzealous reformer nor that of a passive onlooker.

Concurring with his submission, the CJI said, “You are absolutely right that the constitutional court can’t give up its responsibility, that we can’t surrender that. It’s not a question of power. It’s a constitutional duty of a constitutional court.”

Parameshwar contended that the validity of religious rights should not be judged on factors such as rationality.

“There is a huge difference between faith and rationality. The moment you bring in rationality, Articles 25 and 26 go out of the Constitution, with all due respect,” he said, adding that courts could interfere with religious practices if such intervention was necessary to preserve the liberty or integrity of people.

The amicus urged the apex court to give a broad meaning to the term “religious denomination”, saying, “We have inherited an Irish term; it is up to Your Lordships to Indianise it.”

Earlier, senior advocate Mukul Rohatgi, appearing for one of the interveners, submitted that the 1986 writ petition challenging the Syedna judgment had effectively abated due to the death of the original petitioners and the absence of a registered body to prosecute it.

Rohatgi told the court that there had been no instance of excommunication in 75 years and dismissed the suggestion of arbitrary authority.

In September 2018, a five-judge Constitution Bench, by a 4:1 majority verdict, lifted the ban that prevented women between the ages of 10 and 50 from entering the Ayyappa shrine at Sabarimala. The court held that the centuries-old Hindu religious practice was illegal and unconstitutional.

On November 14, 2019, another five-judge Bench headed by then CJI Ranjan Gogoi, by a 3:2 majority, referred the issue of alleged discrimination against women at various places of worship to a larger Bench.

The top court had then framed broad issues on freedom of religion across faiths, saying they could not be decided without the facts of a particular case.

Besides the Sabarimala case, the verdict also referred to the larger Bench issues concerning the entry of Muslim women into mosques and dargahs, and the entry of Parsi women married to non-Parsi men into the holy fire place of an Agiary.

On May 11, 2020, another Bench held that a five-judge Bench had the power to refer questions of law to a larger Bench for adjudication while exercising its limited review jurisdiction in the Sabarimala temple entry case.

During the hearing, the top court read out seven questions it had framed on the scope of religious freedom. The court said it would consider the scope and ambit of the right to freedom of religion under Article 25 of the Constitution.

The second issue concerns the interplay between the rights of persons under Article 25 and the rights of religious denominations under Article 26.

The third question is whether the rights of a religious denomination under Article 26 are subject to other fundamental rights, apart from public order, morality and health.

The fourth question concerns the scope and extent of the word “morality” under Articles 25 and 26, and whether it includes constitutional morality.

The top court said it would also examine the scope and extent of judicial review concerning a religious practice under Article 25.

The sixth issue relates to the meaning of the expression “sections of Hindus” under Article 25(2)(b) of the Constitution.

The seventh question is whether a person who does not belong to a religious denomination or religious group can question a practice of that denomination or group by filing a public interest litigation.

The top court said the larger Bench would have to evolve a judicial policy to do “substantial and complete justice” in matters of freedom of religion, including restrictions on the entry of Muslim and Parsi women into their respective places of worship.