The Central Government has shown support towards the Sabarimala temple’s prohibition against women aged 10-50 entering the temple. Solicitor General Tushar Mehta claimed that this regulation was based on religious beliefs and corresponds with the temple’s independence or autonomy as a religious body and thus beyond the purview of courts to review under their jurisdiction. He asserted that each religion and their respective customs must be honoured.
Also, in two days, assembly elections will be held in Kerala, and the Sabarimala controversy continues to be a major electoral issue for many parties. The federal government has also wrongly claimed that the Supreme Court’s 2018 ruling to permit all women to enter Sabarimala was an error and needs to be re-examined.
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The arguments presented by Mehta were made before a nine-member Constitution Bench that will decide on a more fundamental constitutional question regarding whether or not women shall have the right to worship in religious spaces such as temples (including Sabarimala) in general.
The nine judges on the Bench are:
- Chief Justice Surya Kant
- Justices BV Nagarathna
- MM Sundaresh
- Ahsanuddin Amanullah
- Arvind Kumar
- AG Masih
- Prasanna B Varale
- R Mahadevan
- Joymalya Bagchi
The Centre is set to continue its arguments on Wednesday.
Mehta argued that courts should not make determinations about what an essential religious practice is. For instance, if a ritual/cultural practice violates the basic tenets of law and order, decency, or public health, such as human sacrifice, the court can declare that practice as being non-justiciable, without having to go into the question of whether that practice is religious or not. Also noted by Mehta were the principal elements of constitutional morality that do not exist in the Constitution, but have been created through judicial activity.
Cannot be untouchable for three days
During the hearing, Justice BV Nagarathna, the only woman judge on the bench, remarked on Article 17, which prohibits untouchability, in the context of Sabarimala. She stated that a woman cannot be considered untouchable for three days of the month and “untouchable-free” on the fourth. She said, “Speaking as a woman, there can't be a three-day untouchability every month, and on the fourth day, there is no untouchability," PTI quoted Justice Nagarathna saying.
Questions before the Constitution Bench:
- What is the scope and limits of the right to freedom of religion under Article 25 of the Constitution?
- What is the relationship between individual rights under Article 25 and the rights of religious denominations under Article 26?
- Are the rights of religious denominations under Article 26 subject to public order, morality, and health, as well as other Part III provisions?
- What is the scope of the term ‘morality’ under Articles 25 and 26, and does it include constitutional morality?
- What is the scope of judicial review over religious practices mentioned in Article 25?
- What does the phrase “class of Hindus” in Article 25(2)(b) signify?
- Can a person who does not belong to any religious denomination challenge a practice of a religious group via public interest litigation?