Sabarimala Reference: ‘Constitution Morality is a horse you can’t ride,’ argues Senior Advocate A.M. Singhvi

THE SUPREME COURT yesterday orally remarked that social welfare legislation cannot be used to hollow out a religion, as a nine-judge Constitution Bench continued hearing the Sabarimala reference on its fourth day. The bench was addressed throughout the day by Senior Advocate Dr Abhishek Manu Singhvi, appearing for the Travancore Devaswom Board.

Singhvi’s submissions ranged across several of the seven issues framed by the Court in the reference, including the scope of Article 25(2)(b), the relationship between Articles 25 and 26, the meaning and dangers of the essential religious practices doctrine, the role of constitutional morality in adjudicating religious questions, and the maintainability of PILs filed by non-adherents.

‘In the name of social reform, you can’t hollow out the religion’: Justice Nagarathna

Article 25(2)(b) empowers the State to make laws providing for social welfare and reform, or for throwing open Hindu religious institutions of a public character to all classes and sections of Hindus. Singhvi by advancing a harmonious interpretation of that provision alongside Article 26(b), which guarantees a religious denomination the right to manage its own affairs in matters of religion.

He argued that Article 25(2) is not a head of derogation in the same sense as the grounds of public order, morality, and health stipulated in Article 25(1). Rather, it is a clarificatory and enabling provision that cannot be read to reduce the substantive right under Article 25(1) to a vanishing point. He relied on the decision in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay (1962), which had struck down the Bombay Prevention of Ex-Communication Act, 1949, to argue that Article 25(2)(b) was not intended to enable the legislature to “reform a religion out of existence or identity.”

Justice Nagarathna noted that social reform could not be carried out by hollowing out the religion itself. Justice Sundresh added that laws like the Hindu Succession Act, 1956 could be regarded as social reform within the meaning of Article 25(2)(b), with Chief Justice Surya Kant noting that this would need to be determined case by case.

Singhvi also disagreed with the position taken by Senior Advocate C.S. Viadyanathan, representing the Nair Service Society, who had argued last week that Article 26(b) should prevail over Article 25(2)(b). Singhvi, instead, contended that the second part of Article 25(2)(b) must govern all questions of entry and access, leaving Article 26(b) to govern conduct and rituals once a person has entered.

“Article 25(2)(b) has to be limited to throwing open Hindu religious institutions of public character. The word ‘entry’ has to be governed by Article 25(2)(b) to the exclusion of Article 26. After you enter, for almost everything, Article 26 will take over,” he argued.

He pointed out that if a denomination’s rules required persons who had entered a public temple (entry which could not be stopped) to stand a thousand yards away from the deity and use a telescope to see it, that would not be justifiable under Article 26(b). At the same time, he maintained that Article 25(2)(b) could not be pressed into service to claim rights over the inner sanctum sanctorum, which would remain within the domain of Article 26(b).

‘Essentiality is anathema to Article 25’: Singhvi 

The Essential Religious Practices doctrine, developed through cases beginning with the judgment in Durgah Committee, Ajmer v. Syed Hussain Ali (1961), notes that only practices essential or integral to a religion are entitled to constitutional protection under Articles 25 and 26.

Singhvi argued that the words ‘essential’ or ‘integral’ are simply not to be found in Article 25. The fundamental right to profess, practice, and propagate religion is available to all persons, for all kinds of religious practices, essential or otherwise. To superimpose a requirement of essentiality is to judicially engraft a fifth derogable standard onto a provision whose framers carefully specified only public order, morality, health, and other provisions of Part III.

He traced the origins of the error to what he described as “loose language” in Durgah Committee, which was subsequently picked up and elevated into a doctrine by later courts. The actual inquiry, he pointed out, as contemplated by the Court in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954), was not whether a practice was essential within religion, but whether it was religious at all, as distinct from secular or economic activity. The contrast drawn in those cases was between the religious and the non-religious, not between the essential and non-essential within religion itself.

Solicitor General Tushar Mehta interjected to note that in Shirur Mutt, the Attorney General had moved an argument that only essential parts of religion would be protected, and that this was negated by the seven-judge bench. Singhvi agreed, saying the point was that this rejection was then misread in the Durgah Committee case as endorsing essentiality, when in fact it had done the opposite.