Appearing for the respondents in the Sabarimala reference, Senior Advocate Indira Jaising submitted before the nine-judge Bench that “morality” under Articles 25 and 26 cannot be read as societal morality, as such morality may be shaped by prejudice, majoritarian views and stereotypes.
Nine-Judge Bench Considers Scope Of “Morality”
The nine-judge Bench hearing the Sabarimala reference is examining the meaning of “morality” under Articles 25 and 26 of the Constitution.
These provisions protect religious freedom. However, they also make that freedom subject to public order, morality and health.
The issue has arisen in the review proceedings connected to the 2018 Sabarimala judgment. Through that judgment, the Supreme Court allowed women between the ages of 10 and 50 to enter the Sabarimala temple.
Union And Review-Petitioners Oppose Constitutional Morality Test
The Union Government and the review-petitioners have argued that constitutional morality should not guide the interpretation of religious freedom.
According to them, constitutional morality remains subjective. Therefore, they submitted that courts should look at public morality instead.
They further argued that Parliament reflects public morality because it represents the will of the people.
However, the respondents opposed this approach. They argued that morality under the Constitution cannot depend on majoritarian opinion.
Indira Jaising Says Societal Morality May Carry Prejudice
Senior Advocate Indira Jaising, appearing for the respondents, addressed the Bench on April 29, the eleventh day of hearing.
At the outset, she argued that courts cannot treat societal morality as the constitutional standard. She said society itself may carry prejudice.
Jaising also responded to the argument that courts cannot strike down laws on the basis of constitutional morality. She submitted that courts strike down laws for violating fundamental rights. They do not invalidate laws merely by invoking constitutional morality.
She argued that courts have used constitutional morality to understand the content of Articles 14, 15, 25 and 26.
Respondents Include Women Who Entered Sabarimala After 2018 Ruling
Jaising represents two women who entered the Sabarimala temple after the 2018 judgment.
She argued that Article 17 prohibits all forms of untouchability. According to her, the exclusion of women from temple entry rests on ideas of “pollution and purity” linked to women’s biological functions.
She also referred to the case of one petitioner, Bindu, who entered the temple after the judgment. Jaising submitted that the Tanthri later performed a purification ceremony.
Moreover, she said the petitioner faced serious stereotyping and had to leave Kerala.
Jaising argued that such exclusion violates equality. She also submitted that it causes substantive deprivation of a person’s right under Article 25(1).
Justice Nagarathna Questions Purity-Pollution Argument
Justice Nagarathna questioned whether the restriction necessarily came from ideas of purity and pollution.
She observed that the practice could also reflect a long-standing custom. Under that custom, women between 10 and 50 years of age traditionally did not enter the temple.
Justice Nagarathna further remarked that true devotees had not questioned the practice earlier. She then asked whether the respondents represented by Jaising were devotees.
In response, Jaising said she did not accept the view that only a devotee may enter a temple. She submitted that every person should receive welcome in the house of God.
However, she added that a person must enter with reverence and not with an intention to create mischief.
At this stage, Justice Amanullah asked whether it could amount to reverence if the act upset people present there.
Jaising Defends Essential Religious Practice Test
Jaising also defended the Essential Religious Practice test.
Several parties had argued that courts should discard the ERP test. However, Jaising submitted that the test still helps courts resolve conflicts between individual rights under Article 25 and denominational rights under Article 26.
She argued that without the ERP test, courts would need another standard. She asked whether courts should then rely only on a person’s bona fide belief.
According to her, that approach would also require someone to judge the genuineness of belief.
Justice Nagarathna Says Article 26 Is Wider Than ERP
Justice Nagarathna responded that courts should not reduce “matters of religion” under Article 26(b) only to essential religious practices.
She observed that Article 26(b) has a wider meaning. At the same time, she said Article 25(2) can also operate.
Therefore, she suggested that courts must harmonise both provisions.
Justice Nagarathna further indicated that social reform through State legislation under Article 25(2)(b) may offer a better route. However, she added that reform cannot hollow out the religion itself.
Justice Sundresh agreed with this view. He said the social reform route gives courts greater flexibility.
Jaising Says Temple Entry Right Cannot Be Restricted
Jaising maintained that the result would remain the same, whatever doctrinal route the Court adopts.
According to her, women cannot lose the right to enter the temple.
She submitted that courts need not decide religion from outside. Instead, religions themselves have internal mechanisms to determine what they treat as essential or non-essential.
She referred to the Supreme Court’s decision in Shayara Bano and said the question of triple talaq also involved internal religious understanding.
Justice Amanullah Raises Concern Over Belief And Essentiality
Justice Amanullah expressed concern over the limits of the essentiality test.
He referred to the idea of examining whether a person acts as a genuine believer. He also raised the issue of whether a person can enter a religious place and act against the predominant sentiments of those present there.
Jaising clarified that she did not seek to interfere with ceremonies, rituals or the manner of worship.
She submitted that courts have already drawn a line in favour of protecting ritualistic practices.
She further stated that she could not enter a temple and dictate how puja should take place.
Justice Amanullah Refers To Customs Crystallising Over Time
Justice Amanullah then raised a broader question on long-standing customs.
He asked how courts should deal with practices that have continued for centuries and have become basic elements of religious practice over time.
He observed that history cannot be ignored. According to him, a custom may transform into a basic religious element after a long passage of time.
The Bench is continuing to examine how morality, religious freedom, equality, social reform and denominational rights must operate together under the Constitution.
