New Delhi: Mulling over maintainability of PILs in matters of religion, the Supreme Court on Wednesday said one of the most difficult tasks for a court is to declare that the belief of millions of people is wrong or erroneous, even as the Travancore Devaswom Board (TDB) argued that public interest litigation pleas cannot be allowed to “become a vehicle” for interpreting religious practices.
A nine-judge Constitution bench was hearing petitions related to discrimination against women at religious places, including the Sabarimala temple in Kerala, and on the ambit and scope of the religious freedom practised by multiple faiths.
Senior advocate Abhishek Singhvi, appearing in the court for the TDB, submitted before the bench headed by Chief Justice of India (CJI) Surya Kant that a PIL should not become a vehicle for interpreting a religious practice or its violation.
One of the questions framed by the bench is whether a person not belonging to a religious denomination or group can question a practice of that denomination or group by filing a PIL.
Singhvi argued that in matters of religion, the normal, predominant and overwhelming role of the court should be to prevent and discourage PILs filed under Article 32 of the Constitution.
Responding to Singhvi’s submission, CJI Kant observed, “The most difficult task is how to give a declaration that the belief of millions of people is wrong or erroneous.”
Joining the discussion, Justice B V Nagarathna said PILs should not be entertained when the petitioner is an interloper, adding, “We cannot hollow out religion in the name of social welfare reforms.”
Justice M M Sundresh also wondered if the court can decide a religious practice without hearing millions of followers and believers of a faith.
Singhvi told the bench, also comprising Justices Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi, that allowing PILs in matters of religion would fundamentally distort the constitutional scheme governing religious freedoms under Articles 25 and 26, and that the threshold in matters of religion must be “10 times higher” than in ordinary cases.
The TDB, which manages the historic Sabarimala temple, told the court that Lord Ayyappa is revered at the shrine as a “Naishtika Brahmachari”, a lifelong celibate, and exclusion of women between the age of 10 and 50 years has a direct nexus with the object, identity and manifestation of the deity.
Singhvi submitted before the bench that Sabarimala is the sole temple of Lord Ayyappa where the deity is worshipped as a Naishtika Brahmachari.
“Lord Ayyappa, I am told, has about 1,000 temples in India. Somebody says 1,499, somebody says 1,000. Let us not get into that. The sole temple of Lord Ayyappa which has him in one form as a Naisthika Brahmachari — the word Naisthika means an eternal brahmachari — is the Sabarimala temple.
“Now, the very foundation of the fame and the reverence of this deity is in the form of Naisthika Brahmachari. The only reason people revere him is because he has eschewed all forms of Grihastha Ashram and adopted penance of a very high order, which includes celibacy and self-denial to an extreme position,” Singhvi told the bench on the fourth day of the hearing.
“That is why, when you go there, you have to do vratam. Ordinary people worship for 40 or 41 days before that. You may or may not do it, that is a different matter, but that is the principle. Now, we have to relate it to Article 14. The main argument is that we are excluding females.
“First, remember, there is no total exclusion of females. Females below 10 and above 50 are allowed. So it is not gender per se. Second, within the band of 10 to 50, you are making a classification of females who cannot go,” Singhvi said.
He told the bench that the exclusion of women between the age of 10 and 50 has a direct nexus with the object, identity and manifestation of the deity.
“The validity of a classification between women below 10 and above 50 on one hand and women between 10 and 50 has to be judged in that context. You are not dealing with a toy shop, you are not dealing with a restaurant, you are dealing with a deity who is an eternal brahmachari who eschews all forms of Grihastha Ashram,” Singhvi said.
He submitted that religion is a set of beliefs and practices followed by a denomination with a broadly similar identity and the court cannot sit in judgement of that belief.
The hearing will resume on Thursday.
On April 9, the top court observed that Hinduism will be adversely impacted and the society will stand divided if temples and “mutts” restrict entry on the grounds of sect and separate denominations inside the religion.
In September 2018, a five-judge Constitution bench, by a 4:1 majority verdict, lifted the ban that prevented women between the ages of 10 and 50 from entering the Sabarimala Ayyappa temple and held that the centuries-old Hindu religious practice was illegal and unconstitutional.
Later, on November 14, 2019, another five-judge bench headed by the then CJI Ranjan Gogoi, by a majority of 3:2, referred the issue of discrimination against women at various places of worship to a larger bench.
