The hearing in the Sabarimala matter in Supreme Court today witnessed some interesting arguments and discussions between the counsel and the Bench..Senior Advocate Abhishek Manu Singhvi appearing for the one of the review petitioners dealt in detail with the test of Constitutional morality evolved by the Court to judicially review laws..He said that where rights under Article 25 are under consideration, Constitutional morality has to be applied keeping in mind the ‘occupied field’ facet. Further, while applying Constitutional morality in such religious matters, the subjective morality of devotees has to be considered..He also warned against mixing faith with science arguing that religious institutions are not science museums. Thus, courts should be circumspect while applying Constitutional morality to matters of faith..“Many aspects of faith will be irrational. But it is not a Science museum but religion. So Constitutional Morality should not be applied in all of it. Courts should be careful while applying Constitutional morality in matters of religion.”.He also questioned the application of the Essential Religious Practice Test to Hinduism contending that the religion is so diverse and a test which might be applicable to Semitic religions might not apply to Hinduism..“Hinduism is one of the most diverse religions. There is so much diversity within it. To seek an “essential religious practice” in it might not be the correct approach.”.Interestingly, the Essential Religious Practices Test also found place in the submissions made by State of Kerala. Senior Counsel Jaideep Gupta who was appearing for the State submitted that essential religious practice of a religion should not be confused with the essential religious practice of a temple..“On essential practice there is tendency to confuse between essential practice of religion and essential practice of a temple. In this case, it is not an essential religious practice of the religion..If Your Lordships go into essential practice of temple, each temple will have unique essential practice and hence each temple will be a denominational temple. This would mean complete destruction of essential practice test. So essential practice of individual temple will not amount to essential religious practice of religion for the purpose of Constitutional test.”.The stance of Travancore Devaswom Board (TDB) during today’s hearing was most interesting. When the original case was heard, the TDB had opposed entry of women. Thus, it had argued against the State government. However, today the TDB supported the State and argued against review..This change in stance caught the eye of Justice Indu Malhotra who asked Senior Counsel Rakesh Dwivedi who was appearing for TDB about the same..“TDB has taken a decision to respect the judgment and not seek review”, replied Dwivedi..The brief interaction between Justice Rohinton Nariman and Senior Counsel Indira Jaising was also one of the highlights of the hearing..Jaising, while arguing her case, cited Article 51A regarding the need to develop scientific temper and humanism..Justice Nariman asked her “What about Article 51A (e)? To promote harmony and brotherhood?”.“It should be brotherhood and sisterhood”, replied Jaising..One noteworthy aspect of the hearing today was the silence of Justice DY Chandrachud. Justice Chandrachud is one of the most vocal judges on the Bench and is known for constantly engaging with the counsel, particularly in Constitution Bench cases..However, he remained silent through the hearing today..Read a full report of the hearing here..Read the order:
The hearing in the Sabarimala matter in Supreme Court today witnessed some interesting arguments and discussions between the counsel and the Bench..Senior Advocate Abhishek Manu Singhvi appearing for the one of the review petitioners dealt in detail with the test of Constitutional morality evolved by the Court to judicially review laws..He said that where rights under Article 25 are under consideration, Constitutional morality has to be applied keeping in mind the ‘occupied field’ facet. Further, while applying Constitutional morality in such religious matters, the subjective morality of devotees has to be considered..He also warned against mixing faith with science arguing that religious institutions are not science museums. Thus, courts should be circumspect while applying Constitutional morality to matters of faith..“Many aspects of faith will be irrational. But it is not a Science museum but religion. So Constitutional Morality should not be applied in all of it. Courts should be careful while applying Constitutional morality in matters of religion.”.He also questioned the application of the Essential Religious Practice Test to Hinduism contending that the religion is so diverse and a test which might be applicable to Semitic religions might not apply to Hinduism..“Hinduism is one of the most diverse religions. There is so much diversity within it. To seek an “essential religious practice” in it might not be the correct approach.”.Interestingly, the Essential Religious Practices Test also found place in the submissions made by State of Kerala. Senior Counsel Jaideep Gupta who was appearing for the State submitted that essential religious practice of a religion should not be confused with the essential religious practice of a temple..“On essential practice there is tendency to confuse between essential practice of religion and essential practice of a temple. In this case, it is not an essential religious practice of the religion..If Your Lordships go into essential practice of temple, each temple will have unique essential practice and hence each temple will be a denominational temple. This would mean complete destruction of essential practice test. So essential practice of individual temple will not amount to essential religious practice of religion for the purpose of Constitutional test.”.The stance of Travancore Devaswom Board (TDB) during today’s hearing was most interesting. When the original case was heard, the TDB had opposed entry of women. Thus, it had argued against the State government. However, today the TDB supported the State and argued against review..This change in stance caught the eye of Justice Indu Malhotra who asked Senior Counsel Rakesh Dwivedi who was appearing for TDB about the same..“TDB has taken a decision to respect the judgment and not seek review”, replied Dwivedi..The brief interaction between Justice Rohinton Nariman and Senior Counsel Indira Jaising was also one of the highlights of the hearing..Jaising, while arguing her case, cited Article 51A regarding the need to develop scientific temper and humanism..Justice Nariman asked her “What about Article 51A (e)? To promote harmony and brotherhood?”.“It should be brotherhood and sisterhood”, replied Jaising..One noteworthy aspect of the hearing today was the silence of Justice DY Chandrachud. Justice Chandrachud is one of the most vocal judges on the Bench and is known for constantly engaging with the counsel, particularly in Constitution Bench cases..However, he remained silent through the hearing today..Read a full report of the hearing here..Read the order:
