Fundamental rights above religious practices: SC

Making it clear that fundamental rights do not offer iron cast protection for “essential and integral” religious practices, the SC observed that such traditions can be struck down as unconstitutional if they discriminate on grounds of caste or sex.

Hearing a batch of petitions challenging Sabarimala Ayappa temple’s custom of barring entry of women between 10 and 50 years, a bench of Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra said both Article 15 and Article 25(2) enjoin a duty on constitutional courts and governments to act against a religious practice discriminatory to women.

Appearing for Nair Services Society, senior advocate and former attorney general K Parasaran said the Sabarimala Temple custom does not discriminate against women as it permits entry to those below 10 years and above 50 years. “Lord Ayappa is a naishthik brahmachari. The devotees believe in the God’s pristine celibate state, that is the reason why women in the menstruating age group are not allowed entry...” he said.

The lawyer’s arguments on the nuances of Hindu religion and spirituality — touching upon verses from Ramayan and meandering through Sankaracharya, values of celibacy and sanyas, Hanuman, Yoga and yogis — succeeded in briefly halting the bench’s desire to test the temple’s customs on the constitutional touchstone. “Religious customs cannot be tested on the constitutional point of view alone. The test must take into account devotion and faith,” he said, attempting to dissuade the SC from interfering with a decades-old religious practice.

Justices Nariman and Chandrachud waited till Parasaran completed his potent religion-coated arguments to focus on Article 25(2), which provided that legislature can enact a law to provide for “social welfare and reforms or throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus”.

Both judges said the theme of Article 25 is meant to apply to all religions and when the Constitution says no religion can discriminatingly restrict women, it applies to all religions. Parasaran said Articles 15, 17 and 25 did not bar the legislature from enacting laws to bring in social reforms, but the Constitution through a fundamental right has protected customs that are essential to a religious denomination.

Justice Chandrachud said: “Even if it is part of Hindu religious custom to exclude any particular category from entering the temple, the state has been empowered (by the Constitution) to enact a law to throw open temples to all categories of persons.”

Supplementing Justice Chandrachud’s view, Justice Nariman said since untouchability and discrimination on ground of sex is prohibited under the Constitution, the Sabarimala Temple custom to bar entry of women in a certain age group could also fall foul of constitutional ethos.

Parasaran said provisions of Article 25 could not be used to alter or do away with customs associated with Hindu religion.

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