The Supreme Court on Tuesday said it was aware of the limits of judicial review in religious matters and that there was no need for extensive arguments against it..A Constitution Bench of Chief Justice of India (CJI) Surya Kant along with 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 made the observation during the hearing of a reference case arising out of the Sabarimala temple entry matter.The Court said it was difficult to accept the proposition that religious practices are completely beyond judicial review, asking who else would examine laws prohibiting such practices in the name of social reform."The power of judicial review. There is no need to attack on that power so much. We understand limitations are there but to say there is no power at all, it may also be very difficult as a proposition. It will again depend on situation," CJI Kant said.The Court made the remark after Senior Advocate J Sai Deepak contended that codification of a pre-existing religious practice by the State would not make that practice amenable to judicial review."Because at the core of it, one would still be entering into the question of Article 25(1) and Article 25(2) in that sense," the senior counsel said..Background.The Constitution Bench is examining various legal questions concerning religious rights and freedoms in India. The reference being heard by the Constitution Bench is connected to the top court's September 2018 verdict in which a 5-judge Constitution Bench, by a majority of 4:1, allowed women of all ages to enter the hilltop shrine in Kerala. That decision overturned the tradition that restricted the entry of women of menstruating age.The ruling triggered widespread protests across Kerala and led to dozens of review petitions being filed by various individuals and organizations before the apex court.In November 2019, the Supreme Court pronounced its judgment on the review petitions against the 2018 verdict but did not decide the matter one way or the other.It held that larger issues pertaining to the Essential Religious Practices Test, interplay between Articles 25 and 26 on one hand and Article 14 on the other and the conflict between the judgments in the Shirur Mutt case and Durgah Committee case will have to be decided by a larger Bench.Hence, the matter was referred to a 9-judge bench..Hearing today.Senior Advocate V Giri said if a person doesn’t believe in the deity or religion, they can’t claim a protection of their legal right to enter that place of worship under Article 25(1)."There is no question of going to a temple to find out what are the characteristics. No. I know that. It is part of my right. I believe in the deity wherever I go, whichever is the public place of worship, whether it is a church or a mosque, I should believe in the concept. If I do not, then my entry is not protected under Article 25(1)," the senior counsel said.However, Justice Bagchi asked Giri about Court's role in cases where a believer itself challenges a religious practice."Let us say a person who is a believer comes to the Court and challenges the belief of the denomination itself, which is being canvassed as a religious practice of the denomination. He says ‘no, this has no ancient antiquity, this is not connected to the core tenets to which we all confess, and it has been put up for certain reasons'. In this situation, will or will not a believer be in a position to challenge the denomination’s claim of matters of religion?"Giri responded that unless there is an inner churning within the denomination about a particular practice, a face-off between a member of the denomination and the denomination itself will not be contemplated."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, the deity is worshipped, and the temple is maintained, is out of bounds for me insofar as Article 25(1) is concerned, because this is part of the practice of my religion which alone is protected under Article 25(1)," he added..Giri also submitted that the Agamas state that only those who are the followers of the four Rishi traditions of Bhrigu, Atri, Marichi and Kashyapa, and born of Vaikantha parents, are competent to do puja in Vaikantha temples of Vaishnavaite."They only can touch the idols and perform the ceremonies and rituals. None others, however placed in society as pontiffs or Acharyas, or even other Swamis, could touch the idols, do puja or even enter the Garbhagriha. Not even a person belonging to another Agama is competent to do puja in Vaikantha temples," he said.Justice Amanullah said whether the Constitution can come to the rescue of a person facing such restriction of even touching the deity."This is an extreme example. When you move so far down the path of faith and belief, I go to a temple, my fundamental belief is that he is the Lord, he is my creator, he has created me, right? I go one hundred percent. I am totally devoted, absolutely nothing impure in my heart. I go there. And there I am told that because of a birth, a lineage, a certain situation, permanently you are not allowed to touch the deity. Now, will the Constitution not come to the rescue? Ultimately, there cannot be a difference between the creator and creation... Because ultimately what you are projecting is that he is the God, he is the creator, but the creation will not be able to touch his creator. To what extent will you limit it?," the judge said.However, Justice Nagarathna remarked that it may not have anything to do with untouchability. "If the practice is associated with a particular deity, involves certain Agamas, a certain way of worship, etc., one of which may be that persons who are qualified to do that worship only can do that worship, therefore a believer believes that only certain persons with qualifications can do that worship, and the benefit of that worship the believer also gets. It is not necessary… in some Shiva temples you say “Om Namah Shivaya”, you can put water on the lingam. In other temples, you cannot. There are various practices. In other temples, you are not permitted to touch, because that is part of what is called anushthanas, or the practice, or whatever it is. Nothing to do with untouchability as such.".Senior Advocate Gopal Sankaranarayanan urged the Court to look at a broader picture in the matter, considering the multiple issues prevalent in the country. "We have been seeing a lot about temple entry because that is an issue in one case in this batch. There are other cases also in this batch. Look at different aspects. One is looking at mutilation. The other is looking at a Parsi woman marrying outside her community, whether she is allowed entry into the fire temple or the Agyari. There are different issues that keep coming at every stage. We have had the issue with the hijab in schools. So there are multiple issues which will arise in a country which is so rich in its culture, and so rich in the practices that you have. All of this will be encompassed in it," he said.Sankaranarayanan contended that the right to manage religious affairs of a religious denomination stands on a higher pedestal. "When I say, as a religious denomination, I am entitled, and please do not look at it with this idea of keeping society together, that is really not our task, my Lords. Our task is to test the constitutional principle. What I am saying is, if a religious denomination identified as such, or Aurobindo for example, they are not identified, but if you were to, they get together and say, sorry, if you do not ascribe to ABCD, I am not going to allow you entry, I do not see a problem with that, and I think that arises from Article 26," the senior counsel added.He also argued against the essential religious test doctrine."Do we need essential religious practices test, my answer is no. It is not. It is very clear on its own terms. And partly, like Justice Amanullah said in the morning, in many cases it will come down to the facts of the case. There may be a very unique practice. So rather than putting down broad-based labels, putting down an essential practices test, the phrase is very clear, both in Articles 25 and 26, about managing a faith in relation to matters of religion. If there is a connection to the religion, defer to what the denomination is saying. It is critical to us.".Senior Advocate J Sai Deepak argued that Article 25(2) is a limitation only on Article 25(1) and does not extend to Article 26, the freedom to manage religious affairs . "Any argument to the contrary, in my respectful submission, would be ahistorical. There is no basis in history for such an argument," he said..He further said that Part III of the Constitution does not apply to Article 26."Third, the expression “religious denomination” as used in Article 26 is a reference to any religious association of people held together by a common belief," he added.Since there is no definition of “religious denomination” in the Constitution, nor any separate identification of rights for non-denominational institutions, it means that Article 26 was intended to cover the collective rights of religious associations, Deepak submitted."Put simply, Article 26 is another form of Article 19(1)(c), but applied in a religious context," he further said..Deepak added that the grounds of public order, morality and health are wide enough to accommodate concerns of social reform within the framework of Article 26 itself, without having to rely on Article 25(2)..Senior Advocate Gopal Subramanium argued that the Court may consider looking at the Constituent Assembly debates to examine whether there was a need to place “religious denomination” separately instead of within Article 25(1). "In other words, Article 25(1) lays down the general principle for all persons. They are entitled to freedom of conscience, and to freely profess, practice and propagate religion. But when one looks at the words in Article 26, every denomination, unless a restricted meaning is given to the word “denomination”, it must mean every religious denomination of whatever kind. This is an important point to consider. It would give equality to all religions in the first place," the senior counsel submitted.Subramanium further said that an examination of the Irish Constitution makes it clear that the word “denomination” was used in the context of all religions. "That is why in Article 26 we have the expression “every religious denomination”. What meaning is to be given to the word “every” when it is preceded by Article 25, which only uses the word “religion”? ... So religion in Article 25 and denomination in Article 26 must be understood as every religious denomination. If that is done, it applies across all religions. You are then applying a uniform test," he added.The arguments in the matter will continue on Wednesday..[Read Live Coverage on X]
