- Kerala government told Supreme Court that freedom of religion is individual and limited by others' rights
- Nine-judge bench to review 2018 Sabarimala verdict on women's entry to the Lord Ayyappa temple
- The judges will examine seven key constitutional questions on religious freedom, morality and judicial review
The Kerala government has told the Supreme Court that the right to freedom of religion under Article 25 of the Constitution is an individual right and not absolute and cannot override the right of another individual. The nine-judge Constitution bench will begin hearing arguments on Tuesday for the Review petitions filed against the 2018 Sabarimala verdict which had opened doors to women devotees to the Lord Ayyapa temple.
Read: Kerala Faces Dilemma As Supreme Court Reviews Sabarimala Women's Entry
The top court has allotted three days each to the review petitioners - those seeking to uphold the traditional restriction on women aged 10-50 entering the Sabarimala temple and thus opposing the 2018 judgment - and those opposing the review.
Hours before the scheduled hearing, the Kerala government requested to be heard alongside those seeking to uphold Sabarimala traditions. The state has requested for an hour to present its position.
What Kerala Has Argued
In its written submissions accessed by NDTV, the Kerala government has said the Article 25 of the Constitution guarantees freedom of conscience, including the right to profess, practice and propagate religion but this right is subject to constitutional limitations such as public order, morality, health and other fundamental rights.
The government has argued that a true democracy is one where even the smallest minority feels recognised and protected under the Constitution when interpreting Article 25.
"It is no more res integra that the principle that has to be borne in mind, while interpreting Article 25, is to the effect that the real test of a true democracy is the ability of even an insignificant minority to find its identity under the country's Constitution. The religious freedom guaranteed by Article 25 extends to acts done in furtherance of religion and contain a guarantee for rituals and observances, ceremonies and modes of worship, which are integral part of the religion," read the submission made on behalf of Kerala government. The government stressed that religious freedom includes rituals, observances and modes of worship that are integral to a religion. It, however, underlined that such freedoms cannot encroach upon the rights of another individual.
Read: Sabarimala Temple Open To Women Of All Ages, Says Supreme Court: 10 Facts
Addressing the interplay between Articles 25 and 26, the Kerala government has said while Article 25 protects individual rights, Article 26 deals with the rights of religious denominations to manage their own affairs.
It has argued that denominational rights are subordinate to laws made for social reform, including those that open Hindu religious institutions of a public character to all sections of Hindus.
The state has also clarified that the term "sections of Hindus" includes all groups, castes and women, and said constitutional provisions were designed to ensure access to temples for historically excluded communities.
On the question of "morality" under Articles 25 and 26, the Kerala government has said that it must be understood as constitutional morality, rooted in principles such as equality, non-discrimination, abolition of untouchability and protection of dignity.
The submission has also addressed the scope of judicial review in matters of religion, stating that courts should examine whether a belief is genuinely and conscientiously held, rather than whether it appeals to reason.
At the same time, practices that are pernicious, illegal or against public policy cannot be protected as essential religious practices.
On public interest litigations, the state said that ordinarily, non-followers should not challenge religious practices of a denomination. The courts, however, may intervene where there is a grave violation of human rights, it has added.
"It cannot be stated as a rule that the followers of a religion or practitioners of a religious practice will always be socially disadvantaged. As stated above, the essentiality of a religious practice has to be primarily tested with regard to the tenets of that religion. It may not be a matter susceptible to adjudication by scales of it being appealing to reason or sentiment but should be as to whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. In deciding the question as to whether a given religious practice is an integral part of the religion or not, the test normally should be as to whether it is regarded as such by the community following the religion or not," the submission read.
What The Top Court Will Consider
The Supreme Court will be examining a batch of review petitions in the Sabarimala case, with a nine-judge bench tasked with settling key constitutional questions on the scope of religious freedom.
In 2018, the top court held the ban to be unconstitutional and violative of Article 15 and Article 25.
"To treat women as children of a lesser god is to blink at the Constitution itself," the then Chief Justice Dipak Misra-led bench of five judges said. It was further held that Ayyappa devotees were not a separate religious denomination, and hence it was not an essential religious practice protected by law. Justice Indu Malhotra (now retired) wrote the sole dissenting opinion, arguing that "notions of rationality cannot be invoked in matters of religion".
Read: Why Justice Indu Malhotra, Only Woman On Bench, Dissented On Sabarimala
In November 2019, a five-judge bench referred the review of the 2018 decision to a larger bench. This reference was upheld by a bench of nine-judges in February 2020.
The Court will consider seven questions when it takes up the review:
1. What is the interplay between the freedom of religion under Articles 25 and 26 of the Constitution with other provisions under Part III of the Constitution?
2. What is the scope of "public order, morality and health" under Article 25(1) of the Constitution?
3. What is the scope and extent of the word 'morality' under Articles 25 and 26 of the Constitution of India and whether it is meant to include constitutional morality?
4. What is the scope and extent of judicial review with regard to identification of essential religious practices?
5. What is the meaning of expression "Sections of Hindus" occurring in Article 25(2)(b) of the Constitution of India?
6. Whether essential religious practices are protected under Article 26?
7. 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?
