‘Bad for Hindutva’: Supreme Court flags risks of sect-based temple restrictions at Sabarimala hearing

New Delhi: Supreme Court Expressing concern over arguments in favor of sectarian restrictions on temples and mutts, India on Thursday said such exclusions could adversely affect Hinduism and divide society.The nine-judge Constitution bench headed by Chief Justice Surya Kant made the remarks while hearing a batch of petitions regarding discrimination against women at religious places, including Sabarimala Templeand the degree of religious freedom of different faiths and denominations.The bench also comprised Justices BV Nagarathna, MM Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi.Senior advocate CS Vaidyanathan, appearing for devotees of Lord Ayyappa at Sabarimala Temple in Kerala, argued that Article 26(b) of the Constitution gives religious sects the right to manage their own affairs and takes precedence over Article 25(2)(b), which empowers the state to open Hindu religious institutions of a public nature to all sections of society.Vidyanathan appeared on behalf of the Nair Service Society and other organizations associated with devotees of Lord Ayyappa, arguing that they constituted a separate religious sect and therefore had the right to manage the affairs of the hilltop temple.He proposed that sectarian temples could allow worship or restrict it to members of that sect, while insisting that public temples must be open to all.On the issue of entering the Sabarimala temple, he said: “In Sabarimala, there is no distinction between devotees. There is no restriction even for Christians or Muslims, but they must have faith and belief in the divinity of Lord Ayyappa and must adhere to rituals like 40-day Vratam and any regulations for devotees. No one is banned, so the concept is not understood yet. “Vaidyanathan also believed that placing Article 25(2)(b) over Article 26(b) would have a unique impact on Hinduism as Article 25(2)(b) clearly provides that the state can make laws to open Hindu temples to all sections of society.He also told the court that there are private family temples in Kerala where only members of a particular family can perform worship and these temples serve only their sect. He said the temples cannot seek funding from the state, private donors or the public because they are not dependent on them.He believed that if laws were to be enacted, they had to pass the test of public order, morality or health.He also believed that individual freedom of conscience defeated communal or sectarian freedom.Referring to the 2018 Sabarimala judgment, Vaidyanathan said Justice (retired) DY Chandrachud had framed the issue wrongly.“He asked whether individual rights took precedence over group or collective rights, and he mistakenly believed that individual rights could take precedence over collective religious rights,” he submitted.This argument raised concerns among the judges, particularly its wider implications for Hindu religious practice.Justice BV Nagarathna said: “There is a concern. If you say right of entry, in the context of Venkataramana Devaru (Supreme Court judgment), they said anyone other than Gowda Saraswat Brahmins is excluded, this will have a negative impact on Hinduism.”She added, “Everyone must be able to enter every temple and every mutt. Leave aside the controversy in the Sabarimala judgment (2018). But if you say this is a practice, this is a religious matter, I will exclude others and only my sect, my sect, will go to the temple and no one else and that is not good for Hinduism. Let the religion not be adversely affected. This will be counterproductive to the sect.”Justice Aravind Kumar agreed, saying such exclusions would divide society.Justice Nagarathna further said, “If the argument is that only Gowda Saraswat Brahmins have to go to the temple and followers of Kanchi Mutt can only go to Kanchi and they should not go to Sringeri and followers of Sringeri cannot go to Kanchi, then this will affect the religion”.She also said the state could step in under Article 25(2)(b) to ensure access to temples for all sections of society.“That’s why we say, don’t raise the argument too high,” Justice Kumar said in response to Vaidyanathan’s submission that Section 26(b) supersedes Section 25(2)(b).Justice Nagaratna clarified that she was not referring to private family temples and said: “Don’t let religion be adversely affected.”During the hearing, the bench also discussed the 1957 Devaru case judgment, in which the Supreme Court upheld the Madras Temple Entry Authorization Act. The ruling held that while the temple remains open to all Hindus, certain ritual activities reserved for Gowda Saraswath Brahmins are permissible under the constitution.Justice Kumar also asked Vaidyanathan whether he agreed that Section 26 was not a stand-alone provision and whether it had to be read with Section 25(2) in keeping with the Union government’s position.Vaidyanathan said he disagreed with the Centre’s stand that Article 25(2) was an enabling provision and did not confer any rights, while Article 26 conferred specific rights on a sect.The hearing will resume next week.