NEW DELHI: The Supreme Court on Thursday expressed concern over arguments supporting sect-based restrictions in temples and mutts, saying such exclusions could adversely affect Hinduism and divide society.The remarks came from a nine-judge Constitution bench headed by Chief Justice Surya Kant while hearing a batch of petitions concerning discrimination against women at religious places, including the Sabarimala temple, and the extent of religious freedom available to different faiths and denominations.The bench also comprised Justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan, and Joymalya Bagchi.Senior advocate C S Vaidyanathan, appearing for devotees of Lord Ayyappa of the Sabarimala temple in Kerala, argued that Article 26(b) of the Constitution gives a religious denomination the right to manage its own affairs and would prevail over Article 25(2)(b), which empowers the State to throw open Hindu religious institutions of a public nature to all sections of society.Appearing for the Nair Service Society and other organisations linked to Lord Ayyappa devotees, Vaidyanathan argued that they constitute a separate religious denomination and therefore have the right to manage the affairs of the hilltop temple.He submitted that a denominational temple can permit worship or confine it only to members of that denomination, while maintaining that public temples must remain open to all.On the issue of access to the Sabarimala temple, he said, “In Sabarimala, there is no distinction made between devotees. There is no bar to Christians or Muslims even, but they must have faith and belief in the divinity of Lord Ayyappa and they have to follow rituals like the 40-day Vratam and whatever practices enjoined on the believers. Nobody is prohibited and therefore, this concept has not been understood.”Vaidyanathan also maintained that giving primacy to Article 25(2)(b) over Article 26(b) would uniquely affect Hinduism, since Article 25(2)(b) specifically enables the State to make laws opening Hindu temples to all sections of society.He also told the court that there are private family temples in Kerala where only members of particular families worship and such temples serve only their denomination. Such temples, he said, cannot seek funds from the State, private donors or the public because they are not dependent on them.He argued that if a law is to be made, it must pass the test of public order, morality or health.He also submitted that an individual’s freedom of conscience defeats the freedom of the community or denomination.Referring to the 2018 Sabarimala verdict, Vaidyanathan said Justice (retired) D Y Chandrachud had framed the issue incorrectly.“He asked whether individual rights would prevail over group or collective rights and he held wrongly that individual rights can prevail over collective religious rights,” he submitted.This line of argument drew concern from the bench, particularly over its wider impact on Hindu religious practice.Justice B V Nagarathna said, “There is one apprehension. If you say the right of entry, in the context of (the) Venkataramana Devaru (judgment of the apex court), where they said anybody other than Gowda Saraswat Brahmins is excluded, it will negatively affect Hinduism.”She added, “Everybody must have access to every temple and mutt. Keep aside the controversy in the Sabarimala judgment (2018). But if you say it is a practice and it is a matter of religion that I will exclude others and only my section, my denomination, will attend the temple and nobody else, that is not good for Hinduism. Let the religion not be adversely affected. It will be counter-productive for the denomination.”Justice Aravind Kumar agreed, saying such exclusions would divide society.Justice Nagarathna further said, “If the argument is that only Gowda Saraswat Brahmins must come to a temple, the followers of the Kanchi Mutt must only go to Kanchi, they should not go to Sringeri, the followers of Sringeri must not go to Kanchi, then it will affect the religion”.She also said the State can step in under Article 25(2)(b) to ensure access to temples for all sections of society.Justice Kumar, responding to Vaidyanathan’s submission that Article 26(b) supersedes Article 25(2)(b), said, “That is why we said, do not pitch the argument too high,”Justice Nagarathna clarified that she was not referring to private family temples and said, “Let the religion not be adversely affected.”During the hearing, the bench also discussed the Devaru judgment of 1957, in which the Supreme Court upheld the Madras Temple Entry Authorisation Act. The ruling held that while a temple remains open to all Hindus, certain ceremonial practices reserved for the Gowda Saraswath Brahmins are constitutionally permissible.Justice Kumar also asked Vaidyanathan whether he agreed that Article 26 is not a standalone provision and whether it must be read along with Article 25(2), in line with the Union government’s position.Vaidyanathan said he disagreed with the Centre’s stand, arguing that Article 25(2) is an enabling provision and does not confer any right, while Article 26 grants a specific right to a denomination.The hearing will resume next week.
