Supreme Court on Sabarimala: Need to ensure social reform conforms to ‘lakshman rekha’, doesn’t hollow out religion
One of the key questions before the bench is “the interplay between the rights of persons under Article 25 of the Constitution and the rights of religious denominations under Article 26”.
“The question is how to rely on these kind of surveys. Everybody knows how these are tailored …,” the CJI said, adding that to reflect the reality, “there has to be some very authenticated data … it can’t be only because some people are sitting in air-conditioned rooms writing some articles with some particular pre-judge agenda…”
Underlining the need to ensure that social reform measures conform to the “lakshman rekha” set by the legislature and do not hollow out a religion, the Supreme Court on Tuesday said courts may be compelled to interfere if any such reform is thrust upon people against their wish.
“If the people of this country, through their elected representatives, raise a common voice that this issue requires social reform, probably the court will accept it as a social reform. But if it is against the wish and will of the people — something is thrust upon them or, as a rule of gagging them, maybe the court will interfere,” Chief Justice of India Surya Kant, presiding over a nine-judge bench, said.
The bench also comprising Justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi, is considering questions arising from petitions seeking review of the SC’s September 28, 2018, judgment striking down age restrictions on entry of women to the Sabarimala temple in Kerala.
One of the key questions before the bench is “the interplay between the rights of persons under Article 25 of the Constitution and the rights of religious denominations under Article 26”.
Article 25(1) guarantees the freedom of conscience, while Article 25(2) (b) empowers the state to make laws for social reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Article 26 (a) gives religious denominations, and any section thereof, right to establish and maintain institutions for religious and charitable purposes, while Article 26(b) gives them the right to manage their own affairs in matters of religion.
Appearing for the state of Kerala, Senior Advocate Jaideep Gupta asserted that Article 25(2)(b) makes it clear that steps taken for social reforms will not be a trespass on religious rights.
Gupta said, “…many social rules and practices historically came to be sanctified as religious customs. Therefore, if the State wishes to undertake social reform, it may inevitably have to engage with religion itself. That is why the Constitution expressly grants that power to the State … The Constitution itself creates a separate compartment for such legislative intervention, thereby making it clear that when the State acts for social welfare and reform under Article 25(2)(b), it is not necessarily trespassing upon protected religious rights.”
Justice Nagarathna said that under Article 25(2)(b), “in the name of reform, you cannot violate what is guaranteed under Article 25(1) … No doubt it is empowering the state, social reform … cannot hollow out religion”.
Gupta said “you cannot hollow out the entirety of the religion, but social reform if it requires change, in that event, and if you do it, somebody will not be able to use Article 25(1) against you”.
Justice Kumar asked, “Suppose there is a religious practise in Guruvayur temple, they close the temple for 8-10 times a day for some rituals. Then there will be heavy rush, number of people will be waiting. Under the guise of saying that it is causing public nuisance, under the guise of social reform, can they say no you stop it, restrict it to only 3, 5…?”
Gupta said, “Speaking for myself, I am sure Your Lordships will not accept that kind of reform.”
“But the framers were most conscious of what should be protected, that the civilisation must continue, and therefore, they have come to certain … articles are framed in a particular way. Today, are we as a nine-judge bench going to upset the civilisation is the question,” Justice Nagarathna said.
Senior Advocate Menaka Guruswamy appearing for Swami Agnivesh said that the words “sections of Hindus” in Article 25(2)(b) includes women of all age groups within Hinduism and therefore, should be given a broad interpretation. She contended that a restrictive interpretation would effectively wipe out the rights of Hindu women to practice their religious beliefs and customs.
Senior Advocate Shadan Farasat appearing for two academics said the expression morality in Articles 25 and 26 includes both public and constitutional morality. He said though the two largely go hand in hand, there may be instances where public morality “reflects the prejudices of the time”.
To buttress his argument, he cited a 2025 survey according to which more than 50 per cent Indians were against inter-caste marriage and more than 60 per cent were against inter-religious marriages. “That’s the public morality of 2025. Your Lordships will not enforce it,” Farasat said.
The CJI, however, questioned how such surveys can be trusted.
“The question is how to rely on these kind of surveys. Everybody knows how these are tailored …,” the CJI said, adding that to reflect the reality, “there has to be some very authenticated data … it can’t be only because some people are sitting in air-conditioned rooms writing some articles with some particular pre-judge agenda…”
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