Sabarimala reference: Cannot annihilate religion in name of reform, says SC

The question is if the state fails to do it, can the court bring incremental equality clauses when it comes to religious freedoms and can we apply the test of equality to completely negate an integral practice of a religion. During the hearing, the bench observed that it cannot annihilate religion in the name of reform and that matters of belief and conscience cannot be subjected to judicial debate.

Observing that religion cannot be ''hollowed out'', the Supreme Court on Wednesday said it cannot annihilate a religion in the name of reform and the matters of belief and conscience cannot be subjected to judicial debate. A nine-judge constitution bench hearing issues pertaining to discrimination against women across religions in the country remarked that certain things have crystallised and become an essential part of the religion over the years. The bench headed by Chief Justice Surya Kant, during its hearing on the tenth day, asked whether it can apply the test of equality in cases of religious freedom in complete negation of an ''integral practice'' of a religion. The top court referred to constitutional aspiration on bringing about the Uniform Civil Code in the country keeping it in tune with the social reform and asked if the State fails to legislate, then can the judiciary do it. Justice BV Nagarathna, also part of the bench, observed that different states have enacted Uniform Civil Code to regulate marriage and succession rights of citizens and when the society is ready for it, Parliament will enact it. The bench also comprising justices M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi was told by senior advocate Indira Jaising, appearing for two women claiming right to enter Sabarimala temple in Kerala, that every state has made temple entry laws and if one wants to claim his right, he has to go by the statute. Justice Bagchi told Jaising that there is no such law in respect of non-Hindu religious institutions and can the court in its zeal for maintaining equality among citizens enforce similar directions for non-Hindu institutions, or should it defer to legislative decision. He told the senior lawyer that the court would have consistently directed for a Uniform Civil Code. Jaising, who argued for the whole day submitted that the question of a UCC has been placed in the Directive Principles of State Policy (DPSP) and it is a matter of policy. ''India does not have an all-India Uniform Civil Code. But we do have central statutes like the Hindu Marriage Act, the Hindu Adoption and Guardianship Act, and the Hindu Succession Act. That is a policy decision taken by the State. They are free to change it whenever they want. I am not disputing that. But if a Uniform Civil Code is enacted, then its constitutionality may have to be examined,'' she submitted. Justice Bagchi said, ''Our question is not on what form UCC is brought. The constitutional aspiration of UCC is admitted and the social reforms understood in Article 25 (2) (b) have to be linked with constitutional aspirations of DPSP that it will bring UCC. The question is if the state fails to do it, can the court bring incremental equality clauses when it comes to religious freedoms and can we apply the test of equality to completely negate an integral practice of a religion.'' During the hearing, the bench observed that it cannot annihilate religion in the name of reform and that matters of belief and conscience cannot be subjected to judicial debate. Jaising argued that the religious freedom guaranteed to individuals under Article 25(1) of the Constitution would prevail over the rights of religious denominations and the court cannot adopt a complete hands-off approach in religious matters, as judicial review is an inherent constitutional power. ''There cannot be complete Balkanisation of Hinduism. It cannot be a case where one denomination is denied entry to the temple of another denomination. Otherwise, every denomination will claim themselves to be unique,'' Jaising submitted, adding that every religion has to reform itself from within to survive. Justice Nagarathna told Jaising, ''In the name of reform, don't hollow out the religion... Let us not open rituals and ceremonies which have been there for centuries. It will be annihilating a religion, which we don't want to be a part of. Matters of conscience cannot be a subject matter of debate in a secular court.'' Jaising submitted that if somebody's practice is harming a woman's right, then what is the remedy and the temple has to show a theological basis for such a custom. Justice Nagarathna told her that it was the temple's custom that women in the age group of 10-50 years should not go there. Jaising claimed that there is no theological basis for such a custom. Justice Amanullah intervened and asked whether a person can go to a deity by accepting only some aspects of the deity and whether a person can suddenly question customs which have been prevalent for long. ''Over centuries, certain things which are custom and practice have crystallised and become an essential part- You can't just forget history. With so much passage of time, it has been transformed into a basic element. Suddenly, after so many years, somebody comes up,'' Justice Amanullah observed. The bench further observed how can a non-believer in north India claim the right of entry to the Sabarimala temple in and while deciding the issue regarding the right to enter temples, it has to examine whether a devotee or a non-devotee is claiming that right. A five-judge constitution bench, by a 4:1 majority verdict in September 2018, lifted a ban that prevented women between the ages of 10 and 50 years from entering the Sabarimala Ayyappa temple and held that the centuries-old Hindu religious practice was illegal and unconstitutional.