The Supreme Court on Friday said that while adjudicating matters of faith, a constitutional authority must rise above personal religious beliefs and be guided by freedom of conscience and the broader constitutional framework..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."You said the freedom of conscience has a very wide [application]. Are you hinting that as judges, as a Constitutional Court, religion and conscience cannot be equated for the the reason that religion may be very personal to me but then when I have to judge, I have to rise above that religious consciousness to a level where I balance it with the constitutional provision and then see the larger picture. Per se, everything has been focused that when it is religion, don't touch. Probably as constitutional authority and in the scheme of Constitution, we are called upon to get into the area of conscience also and that probably may not be restricted by term religion," Justice Amanullah said.The judge made the remarks while responding to Senior Advocate Rajeev Dhavan's submissions about importance of freedom of conscience..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.Advocate MR Venkatesh, appearing for Aatmartham Trust, submitted that the word 'denomination' itself has foreign roots and thus has its limitations in Indian context. He also argued for protection of rights of non-denominational temples. "This requires interpretation and proper intervention of this Court. Moreover, if there is a definition for denominational temples and a certain class of temples falls into denominational temples, then what happens to non-denominational temples. Do they have no rights. Do they have no protection under the Constitution. And how do we deal with non denominational temples. The way it has been interpreted by law, and I will demonstrate very shortly, the problem is that all this becomes a sort of public place, which is equated to a car, railway station or a bus stand, where anybody can enter and anybody can leave," he said.Venkatesh also submitted that some women, on their own, refrain from visiting temples during menstruation."Women, when they undergo a monthly biological process, by their own discipline do not enter temples. This is an unwritten rule. Even in the house they do not enter the place of worship. This is a matter of belief. I cannot give a scientific explanation. When science ends, belief begins, and when belief ends, science begins.".Senior Advocate Rajeev Dhavan submitted that the Court in the present case would be deciding the rights of all religions."Your Lordships are not just protecting Hindu practices. The concern is to lay down the law for everybody, every belief and every matter of conscience," Dhavan said.Dhavan added that faith will always change over time and that change would not come by statute alone. "What Your Lordships decide will affect tribal religions also. This is important because there is pain in these areas. Often, we say social reform provisions should apply there or should not apply there. When it comes to manifestations of external superstition, should they apply there or should they not apply there. Take the example of witchcraft. Should it apply there. I have worked with an NGO in Jharkhand where the concept of branding someone a witch exists, and there was an attempt to bring legislation to address it. What do we do about that. It cannot be decided on Hindu law principles," the senior counsel said.Dhavan also submitted that the Court’s endeavour must be one of harmonious interpretation when divisions in society exist."After Partition, the Constitution was a solemn promise to heal a diverse nation. Healing is a part of the Constitution for everybody. After the Emergency, it was used to fight tyranny. Today, we live under intimations of divisive forces where healing becomes crucial. A question was raised by Your Lordships whether this litigation will divide society or harmonise it. I would submit that the endeavour must be to harmonise. The healing process is very much part of the interpretation of Articles 25 and 26," he said.Dhavan further argued that one can respectfully question a religion but hate speech cannot be permitted."When we speak of freedom of conscience, we are raising a very large issue. I have the freedom of conscience to question anything. I can question the State, I can question a religion, but it must be done respectfully. The question of hate speech has also arisen before Your Lordships, and I do not wish to go into that. But this right of conscience is a very expansive right. It is a right given to all of us to question anything, but in a bona fide and respectful manner," he said.Dhavan also contended that certain rights in the Constitution are above religious affairs."Certain provisions of the Constitution stand on a different footing. Take Article 17 on untouchability. It is an absolute mandate. No court, no religion can ever flout the command of Article 17. It does not matter who manages religious affairs, this mandate must be observed. The same can be said of Article 14, which speaks of equality. Articles 23 and 24 also lay down universal mandates. These provisions stand on a different footing. We do not need to examine them through the doctrine of limitations under Articles 25 or 26. These are constitutional statements of universal application which operate across the board," he said.Dhavan disagreed with Senior Advocate Abhishek Manu Singhvi's submission that there are other temples of Lord Ayyappa other than Sabarimala where menstruating women can go."Once you enter the premises, it cannot be said that your right ends and the right of the denomination begins. Your right is to pray, and that has to be adjusted. It is not entry simpliciter. I just put that point and leave it there, because that is a matter of interpretation. There is also the question of choice. It is said that you can go to some other temple. That is not the point. I want to go to this temple. It is the most important temple for me. The second aspect is, what is my right of entry. Is it merely crossing the perimeter? No. It is a right to worship. That is the right I have. I have the right to go to any part of the temple, possibly not the inner sanctum, as Mr Ranganathan argued. That part may be correct. I went to a temple, I went all the way, and then I was stopped at a particular point. That position, as reflected in precedent, may be acceptable," he said.Dhavan argued against narrow interpretation of denominations and sects. "When you interpret it, you must say all groups, all institutions of the faith, whether it is a tribal faith or a church or a mosque or whatever it may be," he said.Justice Nagarathna remarked that it would mean no protection for non-denominational temples. However, Dhavan said,"What I am saying is, if Your Lordships move away from denomination and sect for a moment and look at religious institutions, then they will get broader protection... If you take a wide view of denomination and include all religious institutions within it, then they will get protection, including rights to manage their affairs and property. If you take it away, then they will get no Article 26 rights."Dhavan also submitted that he was against the doctrine of essential religious practice (ERP)."The courts did not invent it. They were made to respond to it," he said.Dhavan further submitted that even superstitious beliefs should be protected, except in cases of external manifestation, like witchcraft or prostitution."The reason why superstition has to be recognised is this. All religions will disappear if you subject them to the logic of scientific discovery. The test of scientific discovery, as given by Karl Popper, is verifiability. Can you verify if God exists. Can you verify spiritual experience. You cannot verify these things. Therefore, superstitious beliefs have to be accepted as part of the law," he said..Senior Advocate V Giri argued that principle of essential religious practice cannot completely be dropped. He also submitted that every temple has its own distinct characteristic because every deity has its own character. "When idol worship is an integral part of Hindu faith, the idol becomes a deity, and the deity has its own characteristics. The maintenance of those characteristics is part of the worship," he added.Giri further said that essential characteristics of a deity also form part of the worship conducted in that temple. "When I go to a temple, I do not go to challenge. I go for asserting my belief. I do not visit a temple or any place of worship to question the character of the deity. I do not go there to question it. They cannot come to the temple like a museum," he argued..[Read Live Coverage on X]
