The Supreme Court is examining whether the State can use constitutional morality and Directive Principles to justify laws reforming religious practices. The debate in the Sabarimala reference case may redefine the balance between religious freedom and equality in India.
The Supreme Court of India on Wednesday raised an important constitutional question—can the State rely on ideas like constitutional morality and Directive Principles of State Policy to justify making laws that reform religious practices?
A nine-judge Constitution Bench led by Chief Justice of India Justice Surya Kant, along with Justices BV Nagarathna, MM Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi, is currently hearing the long-pending Sabarimala reference case.
This case is linked to the landmark 2018 judgment where the Court allowed entry of women of all age groups into the Sabarimala temple in Kerala, ending the earlier restriction on women of menstruating age. Later, in 2019, while hearing review petitions, the Court did not give a final verdict but instead referred larger constitutional questions to a bigger bench. These questions mainly deal with the balance between religious freedom under Articles 25 and 26 and the right to equality under Article 14.
The present nine-judge Bench is now examining these broader issues, which may have far-reaching consequences for religious practices across India.
During the hearing, Justice Joymalya Bagchi focused on the scope of Article 25(2)(b), which allows the State to make laws for social welfare and reform in religious matters. He questioned whether such laws can also be justified using constitutional morality or Directive Principles.
“When it impacts matters of religion, the legislative competence is confined to Article 25(2)(b), that is ‘social reform or social welfare’ alone. So a general law cannot make an inroad (that is the petitioners’ argument). What is ‘social reform and social welfare’? Will the State be within its limits if it says that it is enforcing constitutional duties while making a law under the ambit of social reform? Because the State has constitutional duties under the Directive Principles of State Policy, and it also has a duty to enforce fundamental duties of citizens. Would these qualify as social reform legislation?”
Senior Advocate Gopal Subramanium responded by stressing that laws under Article 25(2)(b) must be strictly interpreted and should not weaken religious freedom.
“Any legislation under Article 25(2)(b) must be read strictly. There must be a clear nexus between the need for reform and the objective sought to be achieved. Otherwise, Article 25(2)(b) could become an overarching provision, leading to a gradual erosion of religious freedom,”
He further argued that even long-standing customs deserve respect, even if they are not considered essential religious practices.
“Customs and usages cannot be discarded lightly. Even if they are not essential religious practices, they may still deserve respect if they form part of a long-standing tradition.”
He also emphasised that courts should not interfere in matters of personal faith.
“The only area of non-justiciability is a devotee’s faith in a particular philosophy or towards a particular deity. That is distinct from a secular scrutiny of how rights are treated. If one remains within the constitutional framework of Articles 25 (freedom of religion and conscience) and 26 (freedom to manage religious affairs), there is no bar on the Court inquiring into and determining what constitutes a religion, what its basic tenets are, and how that religious faith is asserted,”
He disagreed with the argument that non-essential religious practices should lose protection and said the “essential religious practices” test can still be useful.
“The idea is not to allow superstitious or extraneous elements to be elevated as religious rights,”
On constitutional morality, he said it is important but must be used carefully.
“It is the underlying thread that keeps the Constitution organic and enables it to function as a living instrument,”
“It is not that Article 14 (right to equality), which are anti-discriminatory, non-arbitrariness provisions, do not embody a moral principle. They themselves embody a moral principle. Begar establishes a moral principle. Likewise, Article 17 (prohibition of untouchability) is a moral principle … They may suggest a dimension of constitutional morality. But when we use the word constitutional morality as some kind of a doctrine without reference to the constitutional provisions, the doctrine becomes deeply vulnerable,”
Senior Advocate Aryama Sundaram argued that Articles 25 and 26 do not directly deal with gender equality in places of worship.
“Access to places of worship or freedom of religion does not include this concept of gender equality even in the directive principles,”
He added that the State’s power to open religious institutions must be limited.
“It is not an absolute right, it is a right certainly circumscribed,”
He also clarified that gender equality is addressed in other constitutional provisions.
“Wherever gender equality is specifically intended, the Constitution provides for it expressly … Gender equality, therefore, is not necessarily part of the manner of worship. It is a broader constitutional value, but it is not integral to determining the validity of religious practices,”
Senior Advocate Rakesh Dwivedi spoke about the historical importance of religious traditions and warned against weakening the rights of religious denominations.
“Our civilisation, if it is surviving today, we owe a lot to the Hindu religion, the religious denominations, the Bhakti movements and the great Acharyas. It is because of them that this civilisation is alive. Otherwise, there was enormous attack on our civilisation.”
He argued that Article 26 rights should not be diluted.
“We should not put any construction of Article 26 which dilutes the rights which have been given there … Article 26 rights cannot be eroded and made subject to Article 25(2),”
During this exchange, Justice BV Nagarathna observed:
“Opening of an institution simpliciter, entry, it will not affect the religious affairs of a denomination,”
Dwivedi responded by referring to social reform laws like temple entry for Dalits.
“I am only saying that such a law (permitting the entry of Dalits, other classes earlier excluded) would be valid under Article 26 itself, because it is highly immoral to keep them out after Article 17 (prohibiting untouchability) has been inserted, so that is enough,”
He strongly criticised the essential religious practices test.
“How will the court decide what is non-essential? All I know is that when a child is three years old, and when his grandmother rings a bell at the temple, he runs for the prasadam – that is how he knows it is a temple, and this is a God. Can that be said to be essential or non-essential? … Freedom of religion would certainly include that the believers decide for themselves how they want to worship … Please jettison this (essential religious practice test) … One judgment says that unless the removal of that practice destroys the religion, that is the test (to decide if a practice is an essential religious practice). There is no end,”
He further added that courts should be cautious in interfering with religion.
“People react very strongly if that emotion is hurt. Therefore, courts will have to be very slow, with a soft light touch in judicial review (of religious practices). When it comes to testing the law (that regulates religious practices), it should be harsher … Unless there is some malintention or someone is playing fraud on the religion itself and creating something not established by any evidence at all (court should not interfere). But if the tenets are there, and if the practice is proved, and it is a long-standing practice, the Court should refrain from (interfering), especially if it is not hurting anybody,”
Senior Advocate Mukul Rohatgi argued that constitutional morality should not be used to limit religious rights.
“To give a handle to the government to make law on the basis of morality as is commonly understood may not be appropriate in the context of Articles 25 or 26,”
“Morality is already a restriction under Articles 25 and 26. The moment you introduce ‘constitutional morality’, you are either expanding the meaning of morality beyond what the Constitution provides, or you are adding an additional restriction … The moment you create an additional restriction by constitutional morality, you are diluting the content of Articles 25 and 26,”
Senior Advocate Neeraj Kishan Kaul also made brief submissions on behalf of the Dawoodi Bohra community, as the outcome of this case may impact the legality of excommunication practices within the community.
The hearing is set to continue tomorrow, and the final decision in this case is expected to have a major impact on how courts interpret the relationship between religious freedom, social reform, and constitutional values in India.
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