"Annihilation Of Religion": Top Court Warning On Excessive Intervention

"If each person goes and says, 'I do not want this practice,' then what remains? This kind of interpretation will be a disaster for the entire concept of religion itself," said Justice MM Sundresh .

New Delhi:

Petitioners defending women's rights to enter the Sabarimala temple were warned today by the Supreme Court about "annihilation of religion" from allowing individuals to accept religious practices "selectively."

On the 10th day of hearing, the nine-judge bench of the top court examined core Constitutional questions arising from the 2018 Sabarimala verdict, including the scope of Articles 25 and 26, the extent of judicial review over faith-based practices, and what constitutes an "essential religious practice" and court's power to adjudicate on it. 

At the heart of today's proceedings was a key question posed by Justice Ahsanuddin Amanullah: "If you accept the belief in the deity, can you reject the practices associated with it?"

'Cannot Ignore Civilisational Past'

Justice BV Nagarathna, while hearing arguments by Advocate Indira Jaisingh, underlined the importance of historical context in interpreting religious freedoms.

"We cannot ignore the civilisational and religious history of this land... A living Constitution is fine but let us not forget the past. Past makes the present. You cannot ignore the past and say it is a clean slate," she observed.

When Jaising suggested it can be subjected to debate, Justice Nagarathana pointed, "it has been argued that religion cannot be hollowed out in the name of social reform."

Court Flags Risks of Excessive Intervention

During the hearing, Justice MM Sundresh warned that allowing individuals to selectively accept religious practices could have far-reaching consequences.

"If each person goes and says, 'I do not want this practice,' then what remains? This kind of interpretation will be a disaster for the entire concept of religion itself," he said.

Justice Nagarathna echoed the concern, remarking that such an approach could lead to "something like annihilation of religion, which we do not want to be a part of."

"Matters of religion must be given a broad meaning... and are generally not something that courts should intervene in," she added.

Questions on Article 25 Rights

Chief Justice Surya Kant raised a foundational issue regarding the nature of the right under Article 25(1).

"Is it a fundamental right to enter a temple, or does it represent a right which already existed as on January 25, 1950?" he asked, noting that the answer could determine the extent of Constitutional protection.

Jaising maintained that her right flows directly from Article 25(1), subject only to the limitations explicitly stated in the Constitution.

Would A Believer Challenge Existing Beliefs?

The bench also examined whether the right to enter a place of worship is limited to believers.

Justice Ahsanuddin Amanullah posed a series of questions on intent and belief: "Then the question is, if you go there as a believer, how do you get the knowledge of what you believe. You are told certain things as part of a package. Can you then say that you accept some parts but not others. Can you bifurcate that belief," he said.

He sharpened the query further: "If you accept the belief in the deity, can you reject the practices associated with it?"

Jaising responded that entry into a temple must be accompanied by "shraddha" (reverence) but argued that exclusion must be justified in terms of a "legal injury".

"If you show me the legal injury, I will not go," she said, adding that in cases of competing rights, courts will have to examine the consequences.

"Just to clarify, we are discussing the width and ambit of the right under Article 25. I am claiming a right under Article 25 to enter a public place of worship, provided I go with belief... I am also saying that it is not important whether I am a believer or not, but I must go with shraddha, with respect, to introspect." she argued.

Justice Amanullah asked, "if you say you go with reverence, but you know that you are upsetting the sentiments of the majority there, then what?"

"It is my faith. You may call it faith, but it is introspection. It is a matter of self-realisation," Jaising responded.

Justice Amanullah replied, "so your introspection is that even if others are hurt, you will still act in your own way."

Senior Advocate Indira Jaising argued that doctrine of hurt does operate in law, but it must be a legal injury. 

"You tell me what legal injury I am causing to someone. If you show me the legal injury, I will not go... I am saying both of us (women seeking to enter Sabarimala temple) are claiming a legal right. I am waiting for the answer. If there is a contest of rights, then we will have to examine the consequences," she argued.

At this point Justice MM Sundresh agreed with Justice Amanullah: 

"What my brother is saying is true. Sometimes it leads to consequences. I will tell you why. Suppose there is a common belief. People practice, profess and propagate in a particular way. Each one goes there and says, I do not want this, I want it in a particular way. 

Another says, I do not want this practice. Then what remains. If you really look at it, this kind of interpretation will be a disaster for the entire concept of religion itself."

Justice Nagarathna added: If you look at it that way, we are then faced with something like annihilation of religion, which we do not want to be a part of. What are matters of religion must be given broad meaning. We get 25(2). But matters of religion are generally not something that court should intervene in.

Line Between Entry and Rituals

Jaising drew a distinction between the right to enter a temple and interference in rituals.

"The line is not at entry. The line is at ritualistic performance," she said, adding that courts have consistently protected rituals.
"How to perform a puja, I cannot tell the pujaris... Ritualistic practices are beyond the mandate of any law," she argued, citing past judgments.

Social Reform vs Religious Autonomy

Justice Nagarathna pointed out that the Constitution does allow for social reform, particularly in Hindu religious institutions.

"The Constitution makers were conscious that matters of religion cannot be such that social reform is not permitted, or that entry is denied to different classes or sections," she said, referring to enabling provisions for legislative intervention.

"Matters of religion are a matter of conscience and cannot be a subject matter of debate. This is having regard to the philosophy of the particular idol. It is a part of religion," Justice Nagarathana added. 

This came as a response to Jaising's argument that the doctrine of recognition will come. 

"This question was asked in Shayara Bano case. Justice RF Nariman, who is an ordained priest, had asked this question. He said -- can you tell me that court of law can get into this? I said once recognition is given... it enters Part III. It becomes Constitutional law," Jaisingh argued. 

Justice BV Nagarathna replied: "That is why social reform is required, and the State Legislature or Parliament can step in. Power is enabled under the Constitution. The Constitution makers were conscious that matters of religion cannot be such that social reform is not permitted, or that entry is denied to different classes and sections of Hindus... This is only with regard to Hindu religious institutions. It is not with regard to other religions. That is why there are specific provisions in Hindu law."

The hearing will continue, with the court expected to further examine the interplay between individual rights, religious practices, and constitutional morality in one of the most significant religion-related cases before it.

In another interesting exchange, Jaising at the outset told the Supreme Court that she represents two women, including a Scheduled Caste woman, and raised the question of whether denying them entry to Sabarimala amounts to a violation of Article 17, which abolishes untouchability. 

She argued that while men of all castes are allowed entry, women between the ages of 10 and 50 are excluded, effectively forcing them to "live half a life" during what she described as the most "productive and creative period" of their lives. 

Citing the Shirur Mutt judgment of Supreme Court, Jaising contended that such exclusion constitutes a "substantial deprivation" of rights under Article 25(1), adding that any denial of equality is itself a substantial injury. 

She further informed the court that the two women she represents, Bindu and Kanaka Durga, had managed to enter the temple after the 2018 verdict but faced severe backlash --ranging from mob attacks to social ostracism -- alleging lack of state protection and highlighting the real-world consequences of enforcing the restriction.
 

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