Sabarimala Temple entry: Courts should not determine ‘essential religious practices’, Akhil Bharatiya Sant Samiti tells SC

Ahead of April 7 hearing before a nine-judge Constitution Bench, Akhil Bharatiya Sant Samiti has sought to intervene in the Sabarimala Temple entry case, saying courts should not determine "essential religious practices" as they are a matter of faith held sacred by the followers of a religion.

The nine-judge Constitution Bench led by Chief Justice of India Surya Kant will examine discriminatory practices in other religions as well to lay down constitutional principles for determination of such issues.

The other judges on the Bench are: Justice BV Nagarathna, Justice MM Sundresh, Justice Ahsanuddin Amanullah, Justice Aravind Kumar, Justice Augustine George Masih, Justice Prasanna B Varale, Justice R Mahadevan and Justice Joymalya Bagchi.An umbrella body representing 127 sects of the Sanatan Dharma, including approximately 18.5 lakh priests and 12 lakh seers, Akhil Bharatiya Sant Samiti has submitted that courts are not equipped to act as “experts” in religious matters.

“Religion is a matter of faith and religious beliefs are held to be sacred by those who share the same faith. Thought, faith and belief are internal, while expression and worship are external manifestations thereof … the phrase ‘equally entitled to’, as it occurs in Article 25(1), must mean that each devotee is equally entitled to profess, practise and propagate his religion, as per the tenets of that religion,” it submitted.

“Courts should not determine the essential religious practices because the court is not an expert in religious matters/practice. The courts should step in only when such religious practice violates public order, morality or health,” it contended.

The fundamental right to equality (Article 14 of the Constitution) should not be used to override the right to freely profess and practise religion (Article 25), it submitted.

Supporting the entry restrictions at the Sabarimala temple, the Samiti said certain shrines followed purity rituals and specific traditions.

The All India Muslim Personal Law Board (AIMPLB) has also told the top court that courts should refrain from determining what constitutes an “essential religious practice”. It cautioned the court that such judicial scrutiny may amount to encroachment on the freedom of religion guaranteed under Articles 25 and 26 of the Constitution.

"There are some unforeseen bridges which we may have to cross when we are hearing the case," a Bench led by Chief Justice of India Surya Kant had said on February 16, adding the hearing would likely conclude on April 22.

By a 4:1 verdict, a five-judge Constitution Bench led by the then CJI Dipak Misra had on September 28, 2018 allowed entry women, irrespective of their age, into the Lord Ayyappa’s temple at Sabarimala, overturning the age-old tradition that restricted the entry of women in the age group of 10 to 50 years.

Justice Indu Malhotra, the lone woman judge on the Bench had delivered a dissenting verdict and supported the practice.

The verdict led to massive protests by Lord Ayyappa’s devotees -- particularly after the entry of two women into the temple. The devotees believed the age-old tradition of the shrine should be respected as the deity was an eternal celibate.

The ruling led to the filing of a large number of review petitions by various individuals and organizations. On November 14, 2019, the Supreme Court delivered its verdict on the review petitions which didn’t decide the issues involved.

Enlarging the scope of Sabarimala Temple entry restrictions issue, it referred to a seven-judge Bench the issue of discriminatory practices in other religions as well for laying down constitutional principles for determination of such issues.

By a majority verdict of 3:2, a five-judge Bench headed by the then CJI Ranjan Gogoi framed seven issues for consideration of the seven-judge Bench for enunciating constitutional principles to be followed in dealing with such issues in any religion. Now, all these issues will be considered by a nine-judge Bench.

The Centre has supported the petitions for review of the Sabarimala verdict that allowed entry of women of all age groups in the sacred hill-top shrine in Kerala.

Issues to be considered by nine-judge Bench

•What is the ambit of interplay between freedom of religion under Articles 25 and 26 and other fundamental rights, particularly right to equality under Article 14?

•What is the sweep of expression “public order, morality and health” Article 25(1)?

•What is the meaning of “morality”? Is it over arching morality in reference to preamble or limited to religious beliefs?

•How far can courts inquire into a particular practice being an integral part of a religion/religious denomination? Should it be left exclusively to be determined by the religious group’s head?

•What is the meaning of “sections of Hindus” appearing in Article 25(2)(b)?

•Whether “essential religious practices” of a religious denomination or a section thereof are protected under Article 26?

•What’s the permissible extent of judicial recognition to PILs challenging religious practices by persons not belonging to such religious denominations?