1. During the hearing, while responding to the counsel’s submission on Article 26, Justice A Amanullah said, “The basic focus should be on the right to manage. Everything there is a modality to everything. There cannot be anarchy. Suppose there is a dargah or a temple, there will be elements associated with the entry, with the modality, how you worship, and the sequence. Somebody has to do that.”
He continued, “There’s nobody… I walk in, I do whatever, and I come back. It’s all the gates are left open 24 hours, so who is that body who manages? And then that will come into the protection because it has to be regulated. Per se, an entry cannot be banned. There cannot be discrimination on the broader constitutional parameters. But then, for every institution, there has to be some norm, and who sets the norm?”
“It cannot be that I decide my norm. You decide your norm. Every individual decides their norm. There has to be a body, and that body has been given the protection to decide,” he added.
2. Justice BV Nagarathna said, “If there is polarisation, the state will step in under Article 25 2 b, that is, reform. That is what Venkataranama Devru, they said, ultimately you see which is the what is the right here? As you are saying, there is polarisation, then the state can step in under 25 2 b with regard to social reform,” responding to senior advocate Madhavi Goradia Divan’s contention on denominational status.
3. Justice BV Nagarathna said, “Their autonomy to practice their religious practices is protected under 26 b. The state or the court cannot say, no, this is not a religious practice. The autonomy is protected. That is what 26 b says.”
4. Justice BV Nagrathna remarked, “There is no exclusion as such… in other religions… There is no exclusion; it’s specific to the Hindu religion. That is why the constitution framers were conscious of the fact that Hindu temples could not exclude the depressed classes, particularly as they were called earlier. This is something.. depressed classes, you can say depressed cast.. such a thing in our system is not there.. in other religions, then why should they write about other religions in the article. They are conscious of the reality of the Hindu society.”
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5. While referring to denominational rights, Justice BV Nagarathna said, “For example, suppose there is a temple. They want to have an annual festival, like they have the annual Kar festival, you can’t block all the roads around the temple…one is public order, that nothing to do with the religious activity. You do your religious activity, but not by blocking all the roads.”
She added that the state can always step in…Any activity, which is not religious in nature, that is the autonomy, which is given under Article 26(b)…they can decide. What are religious affairs? The court cannot sit in judgment over it. That is the right, which is created under Article 26.
“Suppose they say, ‘we have a particular way of worship in this temple, ‘ et cetera. That is the autonomy that is given in the manner of worship. The court cannot sit in judgment and say, no, this cannot be done. That is the idea of multiple 26(b). While exercising, if you are going to… public order, it is already there. Apart from that, if a secular activity is also being affected, then the state can step in. There is to be a balance,” she said.
Sabarimala in Supreme Court
The Supreme Court is hearing the pleas concerning discrimination against women at religious places, including the Sabarimala temple, and the scope of religious freedom under the Constitution.
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The Supreme Court nine-judge bench headed by Chief Justice of India Surya Kant is hearing the case and includes Justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan, and Joymalya Bagchi.
On September 28, 2018, a five-judge bench of the Supreme Court, by a 4:1 majority, lifted the age restriction on women visitors and struck down as unconstitutional Rule 3(b) of the Kerala Hindu Places of Public Worship Rules, 1965, which allowed the exclusion of women on the grounds of custom.
Questions for consideration
There are seven questions for consideration before the Supreme Court:
- What is the scope and ambit of the right to freedom of religion under Article 25 of the Constitution of India?
- What is the interplay between the rights of persons under Article 25 of the Constitution and the rights of religious denominations under Article 26?
- Whether the rights of a religious denomination under Article 26 of the Constitution are subject to other provisions of Part III of the Constitution, apart from public order, morality and health?
- What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution, and whether it is meant to include constitutional morality?
- What is the scope and extent of judicial review of a religious practice under Article 25 of the Constitution?
- What is the meaning of the expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution?
- Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?
Day 8 Supreme Court Sabarimala hearing: ‘Not WhatsApp university’
The Supreme Court cautioned on sharing information from “WhatsApp university” when senior advocate Neeraj Kishan Kaul cited the words of politician Shashi Tharoor from an article published in The Indian Express-“When the gavel falls on matters of deep-seated belief, it must do so with an awareness of the limitations of legal logic.”
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Justice Nagarathna responded with this caution when Kaul contended that there is never any harm in all humility.
Justice BV Nagarathna said, If there is polarisation, the state will step in under Article 25 2 b, that is, reform.
