Sabarimala reference: You cannot hollow out religion in name of social welfare and reform, says top court

The remarks came as Senior Advocate Abhishek Singhvi appearing for the Travancore Devaswom Board which administers the temple, was making his submissions on the relation between “the rights of persons under Article 25 of the Constitution and the rights of religious denominations under Article 26”.

Article 26(b) gives religious denominations, and any section thereof, right to manage their own affairs in matters of religion while Article 25 (1) guarantees every person freedom of conscience and the right freely to profess, practise and propagate religion subject to public order, morality and health. Article 25 clause (2) sub-clause (a) empowers the state to make laws for regulating or restricting any economic, financial, political or other secular activity, which may be associated with religious practice, while clause (b) allows the state to make laws for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of the faith.

Singhvi urged that “Article 25(2)(b) may not and should not be interpreted so as to decimate or extinguish the primary right under 25(1)” as doing so “would mean the decimation of the main religious right under 25(1) on the alleged basis of social reform…”
Justice Sundresh asked why Article 25(2)(b), unlike Article 26, had used the words social welfare and reform instead of public order, morality and health.

Singhvi said that it must be because of “certain practices, which even by an objective standard, would not be upheld even though they were religious practices. The best example being multiple marriages”.

Justice Nagarathna also took exception to the finding of the top court’s five-judge Constitution bench in the 1972 decision in ‘Seshammal and Others Vs State of Tamil Nadu’ wherein it upheld the abolition of hereditary appointment for ‘archaks’ (temple priests) in the state terming it a secular function.

“The appointment is secular but the person who is appointed ultimately is for religious performance. That is not secular. Dissect…the two. The appointment process is a secular act but he is appointed for a religious purpose. The entire thing cannot be secular. It is contradictory,” the judge said.

Singhvi submitted, “They are not saying that. They are saying that you have to be from that community, and you have to follow the requirement of only ‘archaks’ doing ceremonies. That is the religious part. But … that the ‘archaks’ who alone will do the ceremonies must be the next in line (hereditary), irrespective of suitability, that we are striking down.”

He added that the term secular was used in the judgment only to mean non-religious aspects.

The Board also sought to differ with the Nair Service Society (NSS), a prominent Hindu community organisation which is also one of the major stakeholders in the case, on the question of appointment of priests and autonomy of temples.

Senior Advocate C S Vaidyanathan, who appeared for the NSS, had contended that Seshammal judgment did not take into account Article 16(5) which says that provisions of Article 16(2) – which bars discrimination on the basis of religion, race, caste, sex, descent, place of birth or residence in matters of public employment — will not apply to appointments to any religious or denominational institution.

The senior counsel said that the protection of Article 16(5) would only lie to the extent that the priest is from the same religious denomination but does not uphold discrimination in public employment based on any of the other non-religious criteria mentioned in 16(2).

“So suppose only Hindus are allowed. But then the institution says only Hindus from the north will come, not from the south. Only Hindus who profess a particular dispensation will come, that you can’t do. Religion is immunised, not the others … You protect the religious character of that, or the denominational character of that. That does not mean you protect against every other form of discrimination,” he submitted.

Singhvi said he also differed from Vaidyanathan on the applicability of Section 25(2)(b) dealing with the “… throwing open of Hindu religious institutions of a public character”.

The senior counsel said that “the word ‘entry’ is used in the sense of the entry into the main gate of the Hindu public religious institution and also its compound. This cannot be extended to subsume entry into the inner sanctum sanctorum of such institution …

Having once exercised the right of entry and not being liable to exclusion at the entry point by any rules, practice or custom of the Hindu religious institution, Article 26(b) would necessarily take over within the precincts of such an institution.”
Vaidyanathan, he pointed out, had argued that the decision on entry rights must be left to the denomination.

Meanwhile, responding to submissions on the question of maintainability of a Public Interest Litigation in matters of faith, the CJI said, “The most difficult task for a court might be how to give a declaration that the belief of millions of people is wrong or erroneous.”

The hearing will continue Thursday.