Sabarimala Reference: ‘Morality under Article 25 is legislative morality’, Review Petitioners argue

“THERE IS A SUDDEN SPURT of constitutional morality and now it is used in 79 judgments,” argued Senior Advocate Arvind Datar yesterday, noting this was not the case till 2016-17, “including foreign exchange, decency, same sex, privacy, across the spectrum ‘morality’ is used.”

As the Sabarimala Reference hearings carried on for a third week, with Review Petitioners yet to conclude, a nine-judge Constitution Bench led by Chief Justice Surya Kant continued hearing the matter on Thursday. Senior Advocates Neeraj Kishan Kaul, Jayanth Muthuraj, Guru Krishna Kumar, Arvind Datar and M.R. Shamshad argued on the inter-operation of Articles 25 and 26, the limits of constitutional morality as a tool of judicial review, the standing of non-believers to file PILs challenging religious practices, and why the Essential Religious Practices (‘ERP’) test had to be rejected.

On Tuesday and Wednesday this week, among other interlocking issues, Review Petitioners had noted that Article 25 was “not a free-standing guarantee of Temple Entry.”

The Court is reviewing its verdict in Indian Young Lawyers Association (2018), which held the prohibition of menstruating women from entering the temple of Lord Ayyappa in Kerala unconstitutional, and a batch of petitions related to the ERP test.

‘Harmonious construction, but cannot reform a religion or denomination out of existence’: Senior Advocate Neeraj Kishan Kaul

Continuing his submissions from Wednesday, Kaul started by explaining how the Supreme Court’s decision in Sri Venkataramana Devaru (1957) laid down the interrelation of Articles 25 and 26. He clarified that Devaru does not rule that Article 26(b) is subject to Article 25(2)(b) in general, but that it is subject to the latter in the specific context of temple entry. Otherwise, he noted, the rights under Article 26(b) and 25(2)(b) are of ‘co-equal strength’. While Article 26(b) was the primary provision when it came to matters of religious affairs, on the issue of temple entry, Article 17, which abolishes untouchability, and 25(2)(b) came into the picture.