Nine-judge SC bench reserves verdict in Sabarimala reference

ANine-judge bench of the sublime margaret court on th questioned the continued centrality of the “ indispensable spiritual practices” (ERP) doctrine in adjudicating faith-based disputes, observing during the concluding hearing in the Sabarimala reference that the test could become “elitist” by privileging some religious practices over others.The observation came as the constitution bench, after 16 days of marathon hearings spread over several weeks, reserved judgment in the long-pending reference arising out of the 2018 Sabarimala verdict that had allowed entry of women of all ages into the hill shrine in Kerala.The proceedings before the bench led by Chief Justice of India (CJI) Surya Kant evolved into one of the widest constitutional debates on religious freedom in recent years, touching upon the scope of judicial review in matters of faith, the meaning of religious denominations, the balance between equality and autonomy, and the continued validity of the ERP doctrine.Apart from the CJI, the bench comprised justices BV Nagarathna, MM Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi.During the concluding hearing on Thursday, amicus curiae senior advocate K Parameshwar criticised the ERP doctrine for effectively ranking religious practices.“What the ERP doctrine tends to do is privilege certain practices over others. The easiest critique of the ERP doctrine is, one, that it is not constitutionally there in the text,” he submitted.Justice Sundresh responded that the doctrine also tends to be “elitist in a way”.Parameshwar agreed. “It is very elitist. Because an individual’s spiritual pursuit is as much a part of Article 21 as it is of Article 25. And therein lies the connection between Articles 21 and 25. If you remove my religious practice or my spiritual pursuit, to that extent you are also denting my identity under Article 21,” he argued.Justice Nagarathna, however, suggested that the ERP doctrine may still have limited utility as a classificatory aid rather than a constitutional weapon to invalidate practices altogether.“ERP doctrine can be used only as a tool to say that ‘a practice is so essentially religious, it’s not secular’. But you (courts) can’t say ‘it is not a religious practice and therefore I won’t protect you’. It is an aid, not a test,” she observed.The reference traces back to the Supreme Court’s 2018 judgment permitting women of menstruating age to enter the Sabarimala Sree Ayyappa Temple, overturning a centuries-old custom that barred their entry.When review petitions against that verdict came up in 2019, the top court refrained from directly reconsidering the ruling and instead referred seven broad constitutional questions to a larger bench, including the interplay between Articles 25 and 26 guaranteeing religious freedom and Article 14 guaranteeing equality.Over the course of the hearings, the Centre and several intervenors pressed for a restrained approach to judicial review in matters of faith, warning against courts entering theological terrain or subjecting religious practices to broad constitutional rationality review.Solicitor general Tushar Mehta repeatedly argued that courts should ordinarily defer to legislatures and religious communities in matters of reform and that judicial review in religious matters must remain limited.Senior advocate Gopal Subramanium similarly contended that the standard of scrutiny applicable to Articles 25 and 26 cannot be equated with ordinary Article 14 review.“The scope and intensity of judicial review under Articles 25 and 26 is not identical to the scope of review ordinarily exercised under Article 14,” he argued. He submitted that while rationality may assist courts as a tool of inquiry, the standards applicable in faith-based matters cannot mirror arbitrariness review under equality jurisprudence.Senior advocate Rajeev Dhavan also cautioned against courts becoming arbiters of theology through excessive reliance on the ERP doctrine. “Your Lordships are not the high pope or priest to wander into this particular area,” he said, warning that if essentiality becomes a threshold requirement, entire Article 25 and 26 protections may disappear.Dhavan argued that in the original Sabarimala judgment, the finding that the exclusionary practice was not “essential” effectively extinguished denominational and religious claims at the threshold itself.Senior advocate Rakesh Dwivedi, appearing for parties supporting denominational autonomy, similarly opposed attempts to dilute Article 26 protections.“Hinduism is also a religious philosophy. It is also a deeply evolved social structure,” Dwivedi submitted, while cautioning against reducing Hinduism merely to a “way of life”. He argued that the State’s power of social reform under Article 25(2)(b) cannot automatically override denominational rights under Article 26.Senior advocate Abhishek Manu Singhvi, during earlier hearings, had similarly warned that courts must not decide whether religious practices are “rational or irrational”, “progressive or regressive”, or redesign faith traditions according to judicial preferences. “The court should not decide whether a religious practice is rational or irrational. That is a complete no-go area,” Singhvi had argued.On the other side of the debate, several counsel urged the court to preserve a meaningful constitutional role for judicial scrutiny where religious practices infringe dignity, equality or personal autonomy.Justice Bagchi, during earlier hearings, had crystallised this concern by observing that India may be a democracy governed by numbers, but constitutionalism ultimately places limits on majoritarian impulses. “It is not majoritarianism which the court is bothered about. The court is essentially bothered about majoritarianism trumping constitutionalism and that is the lakshman rekha,” he had remarked.Senior advocate Indira Jaising argued that conflicts between competing fundamental rights cannot be resolved merely through deferential judicial review and that courts must assess the extent of injury caused to constitutional rights.Advocate Sneha Kalita argued that customs originating centuries ago cannot remain immune from constitutional scrutiny in a transformative constitutional order, citing Nepal’s abolished “Chaupadi” practice involving isolation of menstruating women.Prof G Mohan Gopal, appearing for the Sree Narayana Manavadharman Trust, argued that Indian constitutional jurisprudence has historically silenced reformist voices within religions themselves. “Please do not allow faith in clergy to defeat faith in God originating in the conscience of the individual,” he submitted.The hearings also traversed disputes beyond Sabarimala itself, including questions relating to Parsi excommunication practices, denominational rights of mutts, access to religious institutions, bodily integrity, and the constitutional meaning of “religious denomination”..