
The remarks came when senior advocate Gopal Subramaniam told the CJI, comprising Justices BV Nagarathna, MM Sundaresh, Ahsanuddin Amanullah, Arvind Kumar, AG Masih, PB Varale, R Mahadevan and J Bagchi, that the personal faith and belief of a devotee is non-justiciable and even the government cannot infringe the religious rights of a sect or community in the name of social reform.
“Social reforms and religious reforms come from the wishes and desires of the people, to which the government responds (by bringing laws). But it is very difficult for the court to act on such issues (social or religious reforms). Courts can decide the validity of a social reform law by examining whether it interferes with the faith or religious beliefs of devotees.
The important observation acknowledging the limitations of the court in playing its role as a social reformer came on the seventh day of hearing on the fundamental rights versus faith issue.
The bench continued to express its reservations and doubts on judicial monitoring of religious issues. Justice Kumar asked, “Can the courts adjudicate a dispute over religious practice between two groups within the same sect or temple? What could be the judicial basis for a constitutional court while considering a writ petition or PIL to decide whether one type of religious practice is more desirable?” Justice Sundaresh said it appears that apart from the three constitutionally specified grounds – public order, morality and health – there is no other ground, not even a violation of fundamental rights, to restrict an individual’s right to freedom of conscience and the right to freely profess, practice and propagate any religion.
Appearing for the general secretary of Sabarimala Karma Samiti, senior advocate CA Sundaram said the court’s constitutional or legal views are immaterial to the devotees’ conscientious and genuine religious beliefs and practices of worshiping God, which is protected as a fundamental right under Article 25.
Criticizing the 2018 verdict for misapplying the equality and non-discrimination test to religious practices at the Sabarimala Ayyappa temple, Sundaram said the right to equality applies to government employment and cannot be a tool to quash a long-standing religious tradition that is intrinsically linked to people’s faith and belief about the attributes of the deity.
Senior advocate Rakesh Dwivedi said that the judiciary should adopt a soft stance in religious matters.