Sabarimala reference: Can Constitutional morality justify social reform laws? Supreme Court asks

The Supreme Court on Wednesday asked whether the State can invoke the principle of constitutional morality and Directive Principles of State Policy to justify social reform laws on religious matters.

A 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 was hearing the Sabarimala reference case.

The matter is connected to the Supreme Court's 2018 verdict allowing women of all ages to enter the Sabarimala temple in Kerala. This judgement overturned a custom restricting the entry of women of menstruating age to the hilltop shrine.

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.

Rather, the Court framed seven larger questions touching about religious freedoms in India for consideration by a larger bench of the Court.

These included deciding on the interplay between Articles 25 (freedom of conscience and religion) and 26 (freedom to manage religious affairs) on the one hand and the right to equality under Article 14 of the Constitution.

The nine-judge bench is now examining these questions

Hearing today

During today's hearing, Justice Bagchi raised certain queries on the government's powers under Article 25 (2)(b) of the Constitution.

This provision empowers the government to legislate on religious matters in the interest of social welfare and reform, or to throw open Hindu religious institutions of a public character to "all classes and sections of Hindus."

Justice Bagchi asked whether such laws can be introduced on grounds of constitutional morality or to enforce directive principles laid down in the Constitution.

"When it impacts matters of religion, the legislative competence is confined to Article 25(2)(b), that is 'social reform or social welfare' alone. So a general law cannot make an inroad (that is the petitioners' argument). What is 'social reform and social welfare'? Will the State be within its limits if it says that it is enforcing constitutional duties while making a law under the ambit of social reform? Because the State has constitutional duties under the Directive Principles of State Policy, and it also has a duty to enforce fundamental duties of citizens. Would these qualify as social reform legislation?" Justice Bagchi asked.

Senior Advocate Gopal Subramanium replied that while the State's Constitutional duties are important, freedom of religion and conscience is also crucial.

"Any legislation under Article 25(2)(b) must be read strictly. There must be a clear nexus between the need for reform and the objective sought to be achieved. Otherwise, Article 25(2)(b) could become an overarching provision, leading to a gradual erosion of religious freedom," he added.

Even customs that are not essential religious practices must be respected, he further contended.

"Customs and usages cannot be discarded lightly. Even if they are not essential religious practices, they may still deserve respect if they form part of a long-standing tradition."

The hearing today saw various senior counsel urge the Court to avoid interfering in matters of personal faith and not invoke constitutional morality as a ground to restrict religious rights.

"Court should not interfere in matters of personal faith"

Senior Advocate Gopal Subramanium argued that matters of personal faith or a devotee's personal connection to a deity is one area where the Court should not interfere.

The Court may examine what constitutes a religion and its basic tenets to scrutinise whether a law touching upon religious practices is valid or exceeds permissible limits, he added.

"The only area of non-justiciability is a devotee’s faith in a particular philosophy or towards a particular deity. That is distinct from a secular scrutiny of how rights are treated. If one remains within the constitutional framework of Articles 25 (freedom of religion and conscience) and 26 (freedom to manage religious affairs), there is no bar on the Court inquiring into and determining what constitutes a religion, what its basic tenets are, and how that religious faith is asserted," he argued.

He disagreed with a view that religious practices that are not deemed "essential" would degenerate to a non-religious practice that is devoid of any protection.

He added that the test of essential religious practice need not be completely done away with but can be used as an assistive tool to discrern whether a religious right claimed under Article 26 is genuine.

"The idea is not to allow superstitious or extraneous elements to be elevated as religious rights," he added.

He further opined that the concept of Constitutional morality - which was recently criticised by the Central government's counsel as being a vague notion - need not be discarded and has value.

"It is the underlying thread that keeps the Constitution organic and enables it to function as a living instrument," he said.

He, however, cautioned that the concept of "constitutional morality" cannot be invoked without placing it in the context of Articles that carry moral connotations.

"It is not that Article 14 (right to equality), which are anti-discriminatory, non-arbitrariness provisions, do not embody a moral principle. They themselves embody a moral principle. Begar establishes a moral principle. Likewise, Article 17 (prohibition of untouchability) is a moral principle ... They may suggest a dimension of constitutional morality. But when we use the word constitutional morality as some kind of a doctrine without reference to the constitutional provisions, the doctrine becomes deeply vulnerable," he argued.

"Article 25 rights not tied to gender equality in places of worship"

Senior Advocate Aryama Sundaram submitted that rights under Article 25 and 26 do not concern gender equality in access to any place of religious worship.

"Access to places of worship or freedom of religion does not include this concept of gender equality even in the directive principles," he argued.

He added that the State's power under Article 25(2)(b)to make laws to "throw open" any religious institution to other classes of persons has to be read as being only for the purpose of "social welfare and reform."

"It is not an absolute right, it is a right certainly circumscribed," he said.

He highlighted that there are other provisions which expressly address gender discrimination and that Articles 25 and 26 are not among them.

"Wherever gender equality is specifically intended, the Constitution provides for it expressly ... Gender equality, therefore, is not necessarily part of the manner of worship. It is a broader constitutional value, but it is not integral to determining the validity of religious practices," he maintained.

"How can courts decide what are essential religious rights?"

Senior Advocate Rakesh Dwivedi elaborated on the origins of Articles 25 and 26 of the Constitution. He observed that the continuity of India's civilisation owes much to the Hindu religion.

"Our civilisation, if it is surviving today, we owe a lot to the Hindu religion, the religious denominations, the Bhakti movements and the great Acharyas. It is because of them that this civilisation is alive. Otherwise, there was enormous attack on our civilisation."

He added that this is why the rights of religious denominations were specifically recognised in Article 26.

"We should not put any construction of Article 26 which dilutes the rights which have been given there ... Article 26 rights cannot be eroded and made subject to Article 25(2)," he argued.

He added that if Article 26 rights are made subject to Article 25(2)(b), then the State may get the power to open up religious denominations themselves to outsiders.

The Court, however, expressed its reservations over such a view.

"Opening of an institution simpliciter, entry, it will not affect the religious affairs of a denomination," Justice Nagarathna observed.

"I am only saying that such a law (permitting the entry of Dalits, other classes earlier excluded) would be valid under Article 26 itself, because it is highly immoral to keep them out after Article 17 (prohibiting untouchability) has been inserted, so that is enough," Dwivedi replied.

There is no need to draw support for such measures from Article 25, he asserted.

He further contended that the essential religious practices test cannot be used even as an assistive tool to discern what religious practices are genuine.

"How will the court decide what is non-essential? All I know is that when a child is three years old, and when his grandmother rings a bell at the temple, he runs for the prasadam - that is how he knows it is a temple, and this is a God. Can that be said to be essential or non-essential? ... Freedom of religion would certainly include that the believers decide for themselves how they want to worship ... Please jettison this (essential religious practice test) ... One judgment says that unless the removal of that practice destroys the religion, that is the test (to decide if a practice is an essential religious practice). There is no end," he added.

He observed that religion also includes strong emotions and courts must be slow to interfere in such matters.

"People react very strongly if that emotion is hurt. Therefore, courts will have to be very slow, with a soft light touch in judicial review (of religious practices). When it comes to testing the law (that regulates religious practices), it should be harsher ... Unless there is some malintention or someone is playing fraud on the religion itself and creating something not established by any evidence at all (court should not interfere). But if the tenets are there, and if the practice is proved, and it is a long-standing practice, the Court should refrain from (interfering), especially if it is not hurting anybody," he said.

"Constitutional morality can't be used to restrict rights under Articles 25, 26"

Senior Advocate Mukul Rohatgi pointed out that every religion has its own morals, which may have been in existence for thousands of years. What is moral for one may not be moral for another, Rohatgi argued.

"To give a handle to the government to make law on the basis of morality as is commonly understood may not be appropriate in the context of Articles 25 or 26," he added.

He went on to argue that Constitutional morality has no place in creating a restriction on the rights under Articles 25 and 26.

"Morality is already a restriction under Articles 25 and 26. The moment you introduce 'constitutional morality', you are either expanding the meaning of morality beyond what the Constitution provides, or you are adding an additional restriction ... The moment you create an additional restriction by constitutional morality, you are diluting the content of Articles 25 and 26," he said.

Senior Advocate Neeraj Kishan Kaul also made brief submissions for the head of the Dawoodi Bohra community, Sayyedna.

Notably, the reference case verdict may have a bearing on the validity of excommunication practices in the said community. The hearing will continue tomorrow.

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