Well, what will be the consequences if the Supreme Court passes a judgment restricting the Digambar Jain Monks from practising the nudity or the Hindu Naga Sadhus from travelling anywhere without any cloth?

Section 294 of Indian Penal Code, 1860 restricts the obscenity in public place by calling it an annoyance to others. But at the very same time, the Constitution of India under Article 26 allows the citizen to manage its own religious matters. Now, the same constitution in its Article 13 also promises that laws inconsistent with or in derogation of fundamental rights shall to a certain extent, be declared as Void. When we analyse this legal triangle, this can be understood that fundamental rights are higher than other statutory laws and nobody can stop one from practising them; and that is why we have the full liberty to practice and manage our religious rights without the intervention of any institution or body and that’s a principle held sacrosanct within the Indian constitutional framework.

But yes, in spite of all the rules and principles, the Supreme Court and its cousins, ‘The High Courts’, tried to intervene in the religious matters – and they have passed orders and judgments to that effect also. The judgements have no doubt been went on to be referred to as landmark ones, but the consequences and implications of the judgements have been more significant (and ‘landmark’) than the judgements themselves, interestingly!

In the year 2015, the Hon’ble Rajasthan High Court in the case of Nikhil Soni V. Union of India[1] declared the Jain process of achieving salvation ‘The Santhara’ as illegal and declared it as equal to suicide. Later, the judgment raised silent protests all across the globe from the Jain community and the followers went on ‘silent marches’ in their respective cities. The unacceptability was not from the end of society only, but it was also seconded by the democrats and bureaucrats as well. The judgment was widely criticized and was believed that the judicial mind was not applied.

The bench was apparently ignorant of the historical beliefs and the reasoning behind it. When the matter was appealed in the Apex Court, the judgment was reversed and a stay was imposed. This incident showed that the judgment was a landmark one, but the response of society to it was more than just a milestone – that religious interference is not acceptable by society.

The alteration in the religious process will not allow a religion to be religious anymore. Religion works on faith. Court works on the judicial mind. In order to justify the faith, the mind will be lost in the oblivion, and judgments will no more be justified. And anything which is unjustified is something unacceptable for the society. Can a law still be effective when it’s not at all acceptable to the very society it intends to control?

A very recent example can be taken of the case of Indian Young Lawyers Association & Ors. V. The State of Kerala & Ors[2], better known as the Sabrimala Temple Case. The judgment of the case has given the women’s a right to enter into the temples but at the same time, it has questioned the fundamental belief of the Lord Ayyappa himself. Lord Ayyappa, according to local beliefs, is considered a lord because he practised celibacy – the determination brought him the stature of a God. He distanced himself from women. That is why if women really believe in him then they must not go to him or not made her viewing to him. Their attention to him will disrespect his principles. Staying far from him is the absolute faith for women. This is what the scripts say. Now, once again the Supreme Court’s judicial mind equated the entry of women to men but attracted the hatred against the judgment nationwide.

Now, the matter is under review petition as the whole of society is protesting against this judgment. That is why I say ‘Judicial mind cannot go with faith’. Ironically, the ratio of judgment was 4:1, 4 males and 1 female, the only lady judge in the bench Justice Indu Malhotra agreed that women must not enter into Sabrimala temple because she understood the gravity of this nuisance. She quoted “To entertain PILs challenging religious practices followed by any group, sect or denomination could cause serious damage to the constitutional and secular fabric of this country”. And the reasoning behind this given by her in the judgment is the ‘applicability of Article 25’.

Going a little back, we come to the case of Shayara Bano V. Union of India[3]. The SC held Triple Talaq unconstitutional. Now it is important to understand that the concept of Talaq-Ul-Biddat was introduced for the betterment of society itself. To resolve the disputed marriage for the sake of the troubled couples in an efficient way was the objective of this system. But again, the Supreme Court applied its judicial mind and as a consequence, the step was struck down. But still, if I quote the records then the Islamic Women are also protesting against this decision as the Hon’ble Congressman from Hyderabad Mr. Owaisi quoted this statement in the Lok Sabha himself.

Do we still think that SC will be able to pass a practical judgment which will bring tomorrow when Shankaracharyas will be appointed democratically? Will there be any possibility that the biases on the basis of different grounds in religious matters will come to an end through the judgments?

• Jains do not allow women to touch idols during religious ceremonies.
• Hazi Ali Dargah allows women in the tomb of Pir Hazi Ali Shah Bhukhari but only in December.
• Patbausi Satra Temple in Assam does not allow menstruating women.
• Lord Kartikey Temple of Haryana does not allow women.
• Nizamuddin Dargah has certain restrictions for women.
• Shree Padmanbhaswamy Temple has certain attire for women.
• Jama Masjid Delhi does not allow women after sunset.
• Ranakpur Temple Rajasthan does not allow menstruating temple.
• In Kashi Vishwanath, only hindus are allowed.
• In Puri temple, only hindus are allowed.
• In Bhairvi Temple, men are not allowed.
• This is a very small list of instances which are happening across the nation and the judgments won’t be able to do anything instead of hurting societal faith, religious beliefs and the mythical concepts. We cannot apply Law Everywhere.

This does not mean that Sati Pratha or Johar can be resumed, those were evil tactics and were also stopped by society but yes, SC never adjudicated that matter. Faith can be countered by faith only. Our constitution is about 70 years old, our laws are made by colonial rulers who followed west in their culture. Those laws cannot go with our society because we are not practitioners of westernization. The discipline behind the laws does not match with the roots of our nation.

The law derives from society, society follow morals and religion tells us about morality. Laws are the results of holy scripts and these legal bodies cannot interfere with the religious matters.

There are other conflicts left to deal with like UCC, Section 66A, CBI and etc. but intervention in religious matters will only raise chaos because the judicial mind cannot go with faith.

[1] Civil Writ Petition No. 7414/2006. Decided by Sunil Ambwani, C.J. and Veerender Singh Siradhana, J.

[2] Writ Petition (Civil) No. 373 Of 2006

[3] Writ Petition (C) No. 118 of 2016

ABOUT THE AUTHOR

Anchit Jain

Anchit Jain is pursuing law from the ICFAI University Dehradun. He is a third-year law student in B.B.A. LL.B (Hons.). He is interested in ADR, RTI and Consumer Laws. Debating, Dramatics and Chess are the hobbies he carries with him.