New Delhi: The nine-judge bench of the Supreme Court, examining the key questions on religious rights and freedom on entry of menstruating women at the Sabarimala temple on Wednesday, examined whether the state can invoke constitutional morality and Directive Principles of State Policy to justify laws that reform religious practices.

During the hearing, Justice Arindam Bagchi questioned the extent of the state’s powers under Article 25(2)(b), which allows the government to enact laws for “social welfare and reform” in religious matters.

He asked whether such laws could also be justified on grounds of constitutional morality or Directive Principles. “What is ‘social reform and social welfare’? Will the state be within its limits if it says that it is enforcing constitutional duties while making a law?” he asked.

Senior Advocate Gopal Subramanium argued that while the state has constitutional duties, religious freedom must be protected. “Any legislation under Article 25(2)(b) must be read strictly. There must be a clear nexus between the need for reform and the objective sought to be achieved,” he said, warning that otherwise the provision could lead to “a gradual erosion of religious freedom.”

He also stressed that even non-essential religious customs deserve respect. “Customs and usages cannot be discarded lightly… they may still deserve respect if they form part of a long-standing tradition,” he said.

Subramanium urged the court to avoid interfering in matters of personal faith. “The only area of non-justiciability is a devotee’s faith in a particular philosophy or towards a particular deity,” he said, while adding that courts can still examine the constitutional validity of laws affecting religion.

He also defended the concept of constitutional morality but cautioned against its misuse. “It is the underlying thread that keeps the Constitution organic… But when we use the word without reference to constitutional provisions, the doctrine becomes deeply vulnerable,” he said.

Senior Advocate Aryama Sundaram argued that religious rights under Articles 25 and 26 do not inherently include gender equality in access to places of worship. “Access to places of worship does not include this concept of gender equality,” he said, adding that the state’s power to open religious institutions must be limited to “social welfare and reform.”

Senior Advocate Rakesh Dwivedi cautioned against judicial interference in religious practices. “Freedom of religion would certainly include that believers decide for themselves how they want to worship,” he said, questioning how courts could determine what constitutes an essential religious practice.

Senior Advocate Mukul Rohatgi argued that constitutional morality should not be used to restrict religious rights. “The moment you create an additional restriction by constitutional morality, you are diluting the content of Articles 25 and 26,” he said.
(With Bar and Bench inputs)