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‘Freedom of conscience not given in 1950’: Supreme Court top 5 remarks on Day 10 of Sabarimala hearing
The nine-judge bench of the Supreme Court was hearing pleas concerning discrimination against women at religious places, including the Sabarimala temple, and the scope of religious freedom under the Constitution.
On Wednesday, the apex court started to hear the submissions from the respondents in the case. (File Photo)
On the 10th day of the Sabarimala case hearing, some interesting remarks, including on gender discrimination, diversity and other notable subjects, came from the nine-judge Constitution bench of the Supreme Court.
1. Responding to senior advocate Indira Jaising’s argument that the prohibition on women’s entry reflected discrimination, Justice Nagarathna said, “No, you are not prevented because you are a scheduled caste woman, but because you belong to the 10 to 50 group.”
2. When senior advocate Indira Jaising argued that she is claiming the right to non-discrimination based on gender and her right to enter as a scheduled caste, Justice BV Nagarathna asked, “Who is claiming this right? Is a devotee claiming the right or a non-devotee at whose instance? A person who has nothing to do with this temple is somewhere in North India. This temple is in South India. Is claiming a right of entry that also has to be addressed.”
Justice Joymalya Bagchi said you are being prohibited from entering as an age-banned.
3. Justice Bagchi responded and said, “No, you are being prohibited from entering as an age-banned, among women. So there is an intersectional exclusion”.
4. While deliberating on the freedom of conscience in reference to denominations, Justice Nagarathna said, “See, freedom of conscience was not given to us on January 26, 1950. Yes, that is something which demands civilisation, with the evolution of the spiritual aspect of man, through the passage of years and years and years and years, it is something which has been evolving.
She continued, “Constitutionally, it has been circumscribed by certain aspects. Now the question is what has been evolved by man over the civilisation, how much of that has to be protected, and at the same time, protection of that, how far it will sort of intrude into the other aspects, which are the riders of the freedom, that is the whole essence of this debate.”
5. Emphasising the constitutional recognition of diversity, Justice Nagarathna underscored, “What is unique in India… is diversity is our strength, and what Section Article 26 (b) does is to recognise the diversity. We are strong because we are diverse, and diversity is our strength.”
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To bring about a recognition of the diversity in denominations, Article 26 (b) protects it. By giving such protection, there is also a unity developed in the country…that is how we should look at it, she added.
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.
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.
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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?
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