Recognising that denominational practices may come under judicial scrutiny, the Supreme Court on Friday observed that judges must rise above their personal religious beliefs and decide matters of faith in accordance with freedom of conscience and the broader constitutional framework.
The observation was made by a nine-judge Constitution Bench while hearing petitions concerning discrimination against women at religious places, including Kerala’s Sabarimala temple, as well as issues relating to the scope and extent of religious freedom across different faiths.
The Bench comprises Chief Justice Surya Kant and Justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan, and Joymalya Bagchi.
Senior advocate Rajeev Dhavan, appearing for one of the intervenors in the case, submitted before the top court that the present reference was not confined to Hindu practices or the Sabarimala temple alone, but concerns the constitutional framework governing all religions, beliefs, and matters of conscience.
"The concern is to lay down the law for everybody, every belief and every matter of conscience," Dhavan said, adding that the court's endeavour must be to harmonise when there are divisions in the society.
He argued that an individual can question a religion but it must be respectful and in a bona fide manner.
"When we say freedom of conscience, we are raising a very big issue. I have a freedom of conscience to challenge anything-State, religion. This right is a very expansive right-it is a right given to all of us to question anything but respectfully and in a bona fide manner.
"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," Dhavan said.
At this juncture, Justice Nagarathna asked Dhavan, "Are you saying conscience is something larger than religion? Conscience should take the colour of religion?"
Justice Amanullah also joined the discussion and said," You said the freedom of conscience has a very wide proposition. Are you hinting that as judges, sitting in a constitutional court, cannot equate religion and conscience 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."
Dhavan replied it is the court's discretion to interpret consciousness in a manner in which they deem it appropriate.
He contended that all religions will disappear if it is subjected to logic.
"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," Dhavan said adding that there is a huge confusion about applying the concept of denomination.
Justice Kumar then observed, "Denominational practices can be subject matter of judicial scrutiny."
Senior advocate V Giri, appearing for Sabarimala Achara Samrakshna Samiti, submitted that there is collectively a wisdom that has been followed for years and years in exclusion of women aged between 10-50 not being allowed in Sabarimala temple.
Giri submitted that every temple has its own distinct characteristic and the maintenance of those characteristics is part of the worship.
"In my respectful submission, one cannot completely jettison the principle of essential religious practice in deciding whether the right under Article 25(1) is protected or violated if such a practice is upheld and followed.
"What I seek to submit is that my fundamental right under Article 25(1) is to practise the religion to which I belong, in this case Hinduism, which includes idol worship," Giri said.
As the hearing commenced on the fifth day of the hearing, senior advocate MR Venkatesh, appearing for Atman Trust, submitted that the practice of women voluntarily refraining from entering temples or puja rooms during menstruation is rooted in discipline and belief, and not in notions of discrimination.
"All temples in South India, primarily when women undergo a monthly biological process, voluntarily by their own discipline, they do not enter temples. This is a non-written rule. Even in the house, they do not enter the puja room. This is my belief. I can't give a scientific explanation, but when science ends, belief begins. This is practised as a discipline by all ladies or most ladies in the South," he said.
The hearing will resume next week.
On April 9, the top court observed that Hinduism will be adversely impacted and the society will stand divided if temples and "mutts" restrict entry on the grounds of sect and separate denominations inside the religion.
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 Sabarimala Ayyappa temple and held that the centuries-old Hindu religious practice was illegal and unconstitutional.
Later, on November 14, 2019, another five-judge bench headed by the then CJI Ranjan Gogoi, by a majority of 3:2, referred the issue of discrimination against women at various places of worship to a larger bench.
(With inputs from PTI)
