Sabarimala case: Supreme Court defends judicial review, flags ‘civil war’ risk

Senior Advocate Gopal Sankaranarayanan, appearing for some of the petitioners, submitted on the interplay between Articles 25 & 26 of the Constitution. While Article 26(b) gives religious denominations the right to manage their own religious affairs subject to public order, morality and health, Article 25(2) empowers the state to regulate economic, political or secular activities of such institutions.

The Centre has taken a stand that if religious denominations are given absolute autonomy to manage temple affairs, it might lead to some of them refusing entry to Dalits. The bench too echoed similar concerns in the previous hearings.

Referring to these, Sankaranarayanan said that no such discrimination is possible under Section 26, and that the state can control it through executive action, adding that there was no need to curtail the autonomy of temples on that excuse. “How can a denomination then say I can exclude Dalits! A denomination can never say that,” he said.

As the bench cited the example of Shaivaites and Vaishnavaites, the senior counsel said if the Article 26 argument was to be stretched, it would mean the two groups could exempt the other from their shrines.

Replying to this, Justice Aravind Kumar said one had to think of the entire society and expressed fears that stretching it that far may lead to “civil war”. The counsel replied that he only attempted to improve his argument.

Senior Advocate J Sai Deepak, also appearing for some review petitioners — including the Pandalam royal family which is the foster family of Lord Ayyappa, the deity of Sabarimala — argued that as per the drafting history, Article 25(2) was meant to be a proviso to 25(1), in turn meaning it was never intended to extend to Article 26. He termed any argument to the contrary “ahistoric”.

Sai Deepak contended that restrictions under the two Articles can be imposed only by the state, and not judiciary in its judicial capacity, adding it was not appropriate for courts to entertain petitions challenging religious practices.

Justice Nagarathna said that in the Sabarimala case, the state did not prohibit entry but made rules promoting entry, making an exception to the custom.

To this, the senior counsel said, “…codification of a preexisting religious practice by the state does not make the practice amenable to judicial review.”

Defending the power of judicial review, CJI Kant replied: “if the state in the name of social reform prohibits a religious practice, who will examine?” He added: “The power of judicial review… There is no need to attack on that power so much. We understand that limitations are there but to say there is no power at all, it may also be very difficult as a proposition. It will again depend on [the] situation.”

The hearing will continue Wednesday.