Supreme Court asks whether religious belief or rationality could be matter of judicial review

New Delhi: The Supreme Court on Friday said a believer is unlikely to question the rationality of a religious practice, but questioned whether the rationality could be examined if it comes from a non-believer.

The top court also asked whether belief or rationality, if it exists, could be a matter or judicial review.

The statement came while hearing questions arising out of the Sabarimala review petition.

Dealing with the matter related to discrimination against women at religious places, including the Sabarimala temple in Kerala, and on the ambit and scope of the religious freedom practiced by multiple faiths, a nine-bench led by Chief Justice of India Surya Kant, said the right to freely profess, practice and propagate religion flows from freedom of conscience, and this freedom of conscience must first be formed before an individual can freely choose to exercise those rights.

The court also said denominational practices can be subject matter of judicial scrutiny. It added that judges must rise above personal religious beliefs to be guided by freedom of conscience and the broader constitutional framework while adjudicating matters of faith.

Senior advocate Rajeev Dhavan, appearing for one of the intervenors in the case, submitted that the present reference was not confined to Hindu practices or the Sabarimala temple alone, but concerned the constitutional framework governing all religions, beliefs, and matters of conscience.

“The concern is to lay down the law for everybody, every belief and every matter of conscience,” Dhavan said, adding that the court’s endeavour must be to harmonise when there are divisions in the society.

He contended that an individual can question a religion but it must be respectful and in a bona fide manner.

“When we say freedom of conscience, we are raising a very big issue. I have a freedom of conscience to challenge anything- State, religion. This right is a very expansive right-it is a right given to all of us to question anything but respectfully and in a bona fide manner,'' he submitted.

“This right of conscience is a very expansive right. It is a right given to all of us to question anything, but in a bona fide and respectful manner,” Dhavan said.

On this, Justice B V Nagarathna asked, “Are you saying conscience is something larger than religion? Conscience should take the colour of religion?” 

Justice Nagarathna also asked Dhavan, "Can, at the instance of a non-believer, the rationality of a religious practice be gone into?"

Dhavan said the cause of action will be with the believer. “Suppose there is an Indian lawyers’ association which says look we are derivative and we are putting that claim. They will have locus,” he asserted.

Justice Nagarathna further observed, "But the believer will never question the rationality of that practice." 

Dhavan insisted that the cause of action of entry will always be with the believer.

“See, the aggrieved person cannot be on the principles of the Constitution. It has to be on the question of religious practice because just before lunch, you said the rationality of the practice, etc., cannot be gone into,” Justice Nagarathna said.

Justice Ahsanuddin Amanullah said, ”You said the freedom of conscience has a very wide proposition. Are you hinting that as judges, sitting in a constitutional court, cannot equate religion and conscience for the the reason that religion may be very personal to me but then when I have to judge, I have to rise above that religious consciousness to a level where I balance it with the constitutional provision and then see the larger picture.” 

Dhavan replied that it is the court’s discretion to interpret consciousness in a manner in which they deem it appropriate.

He contended that all religions will disappear if it is subjected to logic.

Justice Aravind Kumar said, “Denominational practices can be subject matter of judicial scrutiny.” 

Senior advocate V Giri, appearing for Sabarimala Achara Samrakshna Samiti, submitted that there is collectively a wisdom that has been followed for years in the exclusion of women aged between 10-50 not being allowed in Sabarimala temple.

He said one cannot completely jettison the principle of essential religious practice in deciding whether the right under Article 25(1) is protected or violated if such a practice is upheld and followed.

Senior advocate M R Venkatesh, appearing for Atman Trust, submitted that the practice of women voluntarily refraining from entering temples or puja rooms during menstruation is rooted in discipline and belief, and not in notions of discrimination.

“All temples in South India, primarily when women undergo a monthly biological process, voluntarily by their own discipline they do not enter temples. This is a non-written rule. Even in the house, they do not enter the puja room. This is my belief. I can’t give a scientific explanation, but when science ends, belief begins. This is practiced as a discipline by all ladies or most ladies in the South,” he said.

The matter will be taken up for further hearing next week.