Sabarimala Reference: ‘Constitution Morality is a horse you can’t ride,’ argues Senior Advocate A.M. Singhvi

THE SUPREME COURT yesterday orally remarked that social welfare legislation cannot be used to hollow out a religion, as a nine-judge Constitution Bench continued hearing the Sabarimala reference on its fourth day. The bench was addressed throughout the day by Senior Advocate Dr Abhishek Manu Singhvi, appearing for the Travancore Devaswom Board.

Singhvi’s submissions ranged across several of the seven issues framed by the Court in the reference, including the scope of Article 25(2)(b), the relationship between Articles 25 and 26, the meaning and dangers of the essential religious practices doctrine, the role of constitutional morality in adjudicating religious questions, and the maintainability of PILs filed by non-adherents.

‘In the name of social reform, you can’t hollow out the religion’: Justice Nagarathna

Article 25(2)(b) empowers the State to make laws providing for social welfare and reform, or for throwing open Hindu religious institutions of a public character to all classes and sections of Hindus. Singhvi by advancing a harmonious interpretation of that provision alongside Article 26(b), which guarantees a religious denomination the right to manage its own affairs in matters of religion.

He argued that Article 25(2) is not a head of derogation in the same sense as the grounds of public order, morality, and health stipulated in Article 25(1). Rather, it is a clarificatory and enabling provision that cannot be read to reduce the substantive right under Article 25(1) to a vanishing point. He relied on the decision in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay (1962), which had struck down the Bombay Prevention of Ex-Communication Act, 1949, to argue that Article 25(2)(b) was not intended to enable the legislature to “reform a religion out of existence or identity.”