Supreme Court questions limits of judicial scrutiny under Article 25

NEW DELHI: Travancore Devaswom Board (TDB) on Wednesday asked a nine-judge bench of the Supreme Court that despite the Constitution making every religious denomination subject to ‘public order, health and morality’ and nudity in public being an offence, can the courts ban public appearance of naked sadhus of Jainism’s Digambar sect?

This response from senior advocate A M Singhvi, on behalf of TDB, was to persistent questions from a nine-judge bench led by Chief Justice Surya Kant - why the courts cannot test whether a custom or tenet is part of an essential religious practice to be immune from judicial scrutiny and whether judicial test should be confined to the constitutional parameters of ‘public order, health and morality’ under Article 25.




Singhvi said even certain extreme examples do not come under the ambit of judicial scrutiny. Citing the example of a significant Jain sect of ‘Dagambars’, he said, “There is no doubt that nudity is abhorrent to normal canons of civilized behaviour in most societies. Yet, since Digambar Jain practices, including nude existence and nude movement in public, are undeniably accepted as a core part of a well-known religion, it would not be liable to be struck down under Article 25.”

Solicitor general Tushar Mehta joined Singhvi and cited the example of ‘Naga Sadhus’, who roam naked. Interestingly, the Nepal Supreme Court in last September had dismissed a petition, which had sought a ban on entry of Naga Sadhus at Pashupatinath temple during Mahashivaratri festival claiming that obscenity due to their public nudity disturbed other devotees.

The Nepal SC had ruled that nudity mandated by religion cannot be regarded as obscene and dismissed a public interest petition. The apex court of the neighbouring country had said, “Nudity is simply a physical state, usually referring to the exposure of sexual organs or body parts. However, obscenity means something that arouses sexual desire or is socially and culturally considered shameful or offensive. Therefore, not all instances of nudity can be considered obscene.”

“For example, nudity expressed in artistic imagination, for religious purposes, or for medical/therapeutic use, cannot be regarded as obscene. Similarly, ancient sculptures of deities with decorative art in temples, or nude paintings/statues displayed in museums, cannot automatically be labelled as obscene,” the Nepal SC had said, adding that since the tradition of Naga Sadhus visiting the temple is centuries-old, “prohibiting their entry would violate religious faith at both national and international levels.”

Singhvi said, " Crucially and significantly, an external adjudicator like a Court of Law cannot and should not sit in judgment over what is considered the belief or practice of a religion. It is reiterated that the bona fide albeit subjective belief of the community is crucial and dispositive for determining the belief or practice of a religion. The Court is required to accept the practice and belief of the community which is determined by the community itself."
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