'Whether Constitution Protects Believer Barred From Touching Deity': Asks SC In Sabarimala Hearing

New Delhi: While hearing Sabarimala review petitions on Tuesday, the Supreme Court asked whether the Constitution would protect a believer who is barred from touching the deity, stressing that there can be no distinction between the creator and the creation.

The nine-judge constitution bench is hearing petitions related to discrimination against women at religious places, including the Sabarimala Temple in Kerala, and on the ambit and scope of the religious freedom practised by multiple faiths.

The bench comprises Chief Justice Surya Kant and Justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi.

Senior advocate V Giri, appearing for one ‘thantri’, contended before the bench that the nature of ceremonies and rituals followed in any temple forms an integral part of the religion and is therefore a religious practice.

Giri said when a devotee goes to a temple for worship, it can't be in antagonism to the characteristics of a deity because the purpose is to worship the deity. “The devotee surrenders to the divine spirit contained in the deity. He/she has to accept the essential characteristics of the deity," added the advocate.

The petitioner further contended that the continuance of such practice, which is an essential religious practice, would be part of the right to worship for every member who believes in the religion or religious denomination.

Justice Amanullah asked, "When I go to a temple, my fundamental belief is that he is the Lord, he is my creator, he has created me, right?”

“I go there with one hundred percent belief. I am totally devoted, absolutely nothing impure in my heart. And there, I am told that because of a birth, a lineage, a certain situation, permanently you are not allowed to touch the deity. Now, will the Constitution not come to the rescue? Justice Amanullah asked. He added that there cannot be a difference between the creator and creation.

Giri replied that if there is a complete ban on anybody becoming a priest, then that will be taken care of either by an Article 25(2)(b) legislation or it will be taken care of by the state itself.

I have a right to practice my religion under Article 25 of the Constitution. If the characteristics of the deity are such that it is not possible for me to enter as a woman, my practice must be in sync with those religious traits. Regarding Sabarimala, the deity's characteristics contemplate a status of permanent celibacy," Giri said.

Justice Varale asked whether a genuine believer, influenced by new technologies and philosophies, could question age-old practices. He remarked, "It is possible that a believer in earlier years thought one way. But for a believer today,with the advancement of technology, education, and exposure to other philosophies, can we say that simply believing is enough? One need not be a rationalist to question."

Justice Bagchi asked if it was open for a member of the denomination to question some of the denominational practices?

Giri submitted that it is not within the bounds of a believer to question the denominational practices, and if that happens then it would mean there is no belief.

Justice Sundresh observed that the court may not entertain a challenge if it were to come by a sole believer, who was questioning a practice followed by the majority.

Later in the hearing, Justice Nagarathna spoke about Agamas and about the practices in connection with specific deities in specific shrines.

She also spoke about how in some Shiva temples one could place water on the lingam and in others one cannot touch at all. She observed that it is not because of who the person is but due to the requirement of anushthana of that temple, and added that it has nothing to do with untouchability as such.

The apex court orally observed that despite limitations on the power of judicial review, it can examine if the state prohibits a religious practice or custom in the name of social welfare or reform.

The observations were made by the bench hearing petitions which include the submissions of senior advocate J Sai Deepak, who appeared in the court for the Pandalam royal family and the historic Shriur Mutt.

Deepak contended that if a religious practice is inherently beyond the court's jurisdiction due to its sacred nature, the mere act of the state recognising or "codifying" that practice through a law does not suddenly grant the judiciary the power to review it.

The CJI told Deepak, "If the state, in the name of social welfare, prohibits a religious practice, who will examine it? We understand that there are certain limitations, but to say that there is no power at all, it may also be a very difficult proposition to accept. There is no need to attack the power of judicial review so much."

Deepak also represented various other Hindu organisations in the court like Chetana Conscience of Women, All India Organisations of Lord Ayyappa Temples, besides the head priests of the Sree Padmanabhaswamy and Chilkur Balaji temples.

The counsel argued that legislation should not be used as a back door for courts to test the "rationality" of centuries-old religious traditions.

The hearing in the matter will continue on Wednesday.

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