A nine-judge Constitution Bench of the Supreme Court is examining seven important legal questions concerning religious rights and freedoms in India. The top court began hearing the reference arising out of the Sabarimala review case on April 7, Tuesday.

The Court's verdict will have a major impact on various individual cases including whether women can be allowed to enter the Sabarimala temple in Kerala.

The reference is connected to the top court's September 2018 verdict in which a 5-judge Constitution Bench, by a majority of 4:1, allowed women of all ages to enter the hilltop shrine in Kerala. That decision overturned the tradition that restricted the entry of women of menstruating age.

The ruling triggered widespread protests across Kerala and led to dozens of review petitions being filed by various individuals and organisations before the apex court.

In November 2019, the Supreme Court pronounced its judgment on the review petitions but held that larger issues pertaining to the Essential Religious Practices Test, interplay between Articles 25 and 26 on one hand and Article 14 on the other and the conflict between the judgments in the Shirur Mutt case and Durgah Committee case will have to be decided by a larger Bench.

The nine-judge Bench is now considering the same.

A Bench of Chief Justice of India (CJI) Surya Kant along with Justice BV Nagarathna, Justice MM Sundresh, Justice Ahsanuddin Amanullah, Justice Aravind Kumar, Justice Augustine George Masih, Justice Prasanna B Varale, Justice R Mahadevan and Justice Joymalya Bagchi is hearing the matter.

During yesterday's hearing of the matter, the Central government argued that a secular court cannot determine whether a religious practice amounts to superstition, and maintained that India is not as patriarchal as the West perceives it to be.

Follow this page for live updates from today's hearing.

Click here to read live updates from Day 2 of the hearing.

Hearing starts.

SG Tushar Mehta: There are instances of temples where men are not allowed. Because it is a Devi Bhagwati temple, there are certain faiths and beliefs attached. There are temples, details of which I have mentioned, where male priests are under a religious mandate to wash the feet of female devotees. There are temples like the Pushkar temple, the only Brahma temple in the country, where married men are not allowed.

There is also a temple in Kerala where the practice is that men enter dressed as women. As I have read in detail, they go to beauty parlours, and their female family members help them dress in sarees and other attire. Only males go there.

So it is not a question of male-centric or female-centric religious beliefs. In the present case, it happens to be woman-centric.

Secondly, there was a question regarding Articles 25 and 26 and their interpretation. The day before, I had substantially argued on this. Yesterday, when I began, I had said that I would take that up at the end; otherwise, I would not be able to finish the other issues. I could not get the time for that. I am not re-arguing. Substantially, I have answered it. The rest is in my written submissions. That is all.

ASG KM Nataraj: Religious rights under the Constitution are well-linked, protected and regulated under the scheme of Articles 25 and 26. There is a three-tier mechanism to protect, connect and regulate these rights.

The first part of Article 25(1) guarantees an individual right. The second part, Article 25(2), provides the regulatory mechanism. Article 26 relates to institutional rights. Thus, Articles 25(1) and 26 are interconnected. Article 26 is embedded in Article 25, and vice versa. When Article 26 is enforced, it essentially relates back to Article 25(1). Therefore, Articles 25 and 26 form interconnected mechanisms... granting rights to individuals under Article 25(1) and institutional rights under Article 26.

ASG Nataraj: However, when it comes to regulation, Article 25(2) applies to both. This is the scheme of Articles 25(1), 25(2) and 26. It provides a well-balanced framework under the Constitution.

Kindly take my written note where I have pointed out the broad submissions. Starting from paragraph 2, I have identified eight salient aspects of the rights under Articles 25 and 26.

First, the scheme constitutes a three-tier mechanism—Articles 25(1), 25(2) and 26.

Second, the right under Article 25 is twofold: religious freedom, and the State’s power to regulate. Article 25(2) itself consists of two independent parts.

Third, Articles 25 and 26 must be harmonised. Neither provision is subordinate to the other.

Fourth, denomination must be understood in the Indian context. I will elaborate on this with reference to the Constituent Assembly debates.

Fifth, public morality is the governing standard, not constitutional morality as interpreted in earlier cases.

Sixth, determination of essential religious practices is unworkable in the Indian religious landscape. Given the diversity and plurality, the principle of essential religious practice cannot be uniformly applied.

Seventh, religious practices are to be internally assessed. External examination is impermissible. Judicial review on whether a practice is essential, and to what extent courts can enter into such matters, has a very limited scope.

Eighth, the deity’s right is an integral part of the devotee’s right, and is protected under Articles 25 and 26. If a devotee has a right, it relates to the deity; if the deity has a right, it relates to the devotee.

Therefore, Articles 25 and 26 are necessarily connected. If one has faith, one has a right under Article 26. If one has no faith, as a non-believer, one has no right under Article 26. Thus, Article 26 must be connected to Article 25(1).

ASG Nataraj: On the scope and contents of Article 25(1): without reading in detail, Article 25(1) includes not merely internal belief but also the external manifestation of religion through practice and propagation. It has two facets—internal faith and its external manifestation. Both are equally protected.

Coming to Article 25(2), it operates as an independent enabling mechanism. Article 25(2) creates a distinct field of legislative competence for the State. It is not merely a restriction on Article 25(1), but an independent constitutional authorisation allowing the State to regulate secular activities associated with religion, to achieve broader societal objectives and transform society.

The object of Article 25(2) is to enable the State to eliminate social evils and bring about inclusive reforms.

Article 25(2) contains two independent components. First, it enables the State to make laws. Second, it provides for throwing open Hindu religious institutions to all sections of Hindus.

Article 25(2)(a) and 25(2)(b) are distinct. The first part concerns social welfare and reform. The second part concerns throwing open Hindu religious institutions of a public character to all classes and sections of Hindus. Both are independent and distinctly expressed.

ASG Nataraj: Finally, coming to Article 26.

Article 25(2) itself has two parts. The first part states that nothing in this article shall affect the operation of any existing law. The second part enables the State to make laws.

The expression “existing law” refers to pre-Constitutional laws, including customs and usages. Such customs and usages, if not inconsistent with Part III, are protected. The test is whether they are consistent with Part III.

Articles 25 and 26 cannot be read de hors Part III. Both are subject to Part III and are interconnected.

Article 26 cannot exist without Article 25(1), and Article 25 must be read in relation to Article 26. When they are read together, Part III necessarily applies. Although Article 26 does not expressly state that it is subject to Part III, Article 25 establishes that connection. Article 25(1) deals with individuals, while Article 26 relates to institutions.

Without individuals, there can be no Article 26. A denomination is formed on the basis of the collective faith and belief of individuals.

Justice Bagchi: What you are saying is Article 26(1)(b) is a subset of Article 25(1).

ASG Nataraj: It is not a subset, but it can be an offshoot of an individual right collectively.

Justice Bagchi: Why I say subset is the word “maintain religious affairs” only relates to maintaining religious affairs, whereas Article 25(1) has a much expansive expression to faith and practice. And faith and practice is the larger field of which the subset is maintenance. And maintenance naturally relates to organisation. Yesterday I indicated to the learned Solicitor General that it is not the devotee, but the management whose rights are envisaged in Article 26(1)(b).

And therefore these should be harmoniously construed. Articles 25 and 26 will have to be harmoniously construed. And thereby Article 26(1)(b) is also subject to the reform legislation under Article 25(2).

But the next question is you were saying as is rightly said that if harmony is to exist for all parties how will you compatibly integrate Article 26(1)(b) with Article 15 or Article 14. That you have addressed that it can be done only by reading it under Article 25(1)

ASG Nataraj: Because Articles 25 and 26 are two faces of the same coin of religious right. One is relating to an individual right the other one relating to institutional right to form an association or to express through as a denomination.

Justice Bagchi: Article 26 is not a citizen.

ASG Nataraj: Collectively.

Justice Bagchi: Collectively an organisation. Article 25 is of individuals. Without individuals there can be no Article 26. Article 25 is a larger issue. For practical purposes Article 26 is of a narrow spectrum management.

These are the words that have been carefully constructed. Just like the concept of an association or a trade union to represent the collective group.

Justice Amanullah: Okay, so you are saying that it includes not merely internal beliefs, but also the external manifestation of the beliefs, to practice and propagate it. Are you putting it in very plain terms that whatever is your internal belief, religious belief, the external manifestation of this should be protected?

ASG Nataraj: Yes.

Justice Amanullah: How can it be? It is fine internally, yes, that is yours. The moment your external manifestation affects the rights of others, then how can it be protected? That has to be tested.

ASG Nataraj: Subject to Part III. Part III immediately steps in.

Justice Amanullah: Then we cannot say that whatever internal belief you carry, you externalise it and that will be protected.

ASG Nataraj: The Article itself provides it is subject to. When you come to Article 25…

ASG Nataraj: So, while interpreting “denomination” or “section thereof”, we cannot keep in mind what prevailed in Ireland, or when they brought in the idea of the Irish Constitution or the Polish Constitution.

We have to keep in mind how they intended to introduce the concept of denomination into the Indian system. That is how it has to be understood.

For that purpose, kindly see how it was understood and how it was debated.

In fact, how it is understood in the original Hindi language, how it was expressed there.

ASG Nataraj: With due respect, is that normally, when it comes to judicial scrutiny, whether this is a particular sampradaya, whether it is correct or not, whether it has to be followed or not, that cannot be addressed by an external court. That is what that is. This is not the first stage that the courts decide what is the sampradaya or what is the religious practice or the methods of religion administered by the sampradaya.

Justice Bagchi: The courts come into question when there is a conflict between these practices. The group states this is a sampradaya, whereas the other group states this is not a sampradaya, or a group states, or a member of the sampradaya itself says that this is not the form of worship. So here, the courts necessarily require...

ASG Nataraj: On the basis of evidence.

ASG Nataraj: Exactly, because of SECTION 9 of civil procedure code, a new question where there is a divergence or a conflict requires to be resolved through the process of adjudicatory mechanisms. So to say that this cannot be answered by the court, it seems to me a very... What happens when sampradayas right as to religious practices are themselves challenged... like have a fast before going to temple etc... who will decide.

ASG Nataraj: When there are competing claims... evidence...

Justice Bagchi: We are on the forum and the forum is the court. Court will decide which is the sampradaya and what is the practice followed by them. A non-believer can also bring issues of religion before the court.

ASG Nataraj: Take, for instance, many temples where only vegetarian food is served. I am giving an example. A person, by choice or by conscience, may say that he wants to have non-vegetarian food. But he cannot go to a particular denomination of a temple and say that he has a right to have non-vegetarian food and therefore it must be served to him.

He has no such right to invade the rights of those believers under that denomination or religion.

Similarly, liquor. In some temples, liquor is given as prasadam. Tomorrow, one cannot object by saying that liquor should not be given as teertha or prasadam in a particular temple.

In many temples, as you would have seen, liquor is also given as teertham in several South Indian temples.

ASG Vikramjit Banerjee: Lordships have read Article 394A, which provides that there has to be, and there is, an authoritative Hindi version. This is not a translation, it is a Hindi version. That is what has to be taken as authoritative.

Now, in that context, my first submission, which has already been addressed by Mr Nataraj and which I am not going to revisit, is this. When he says that “religious denomination” has to be interpreted as “sampraday”, I have dealt with that in my written note in detail. I am not addressing it further.

My Lords may then see the other two provisions, Articles 25 and 26, where the word used is “morality”. In the Hindi version of both provisions, the word used is “sadachar”.

“Sadachar”, as I have explained in detail in my note, means approved customs. There is no scope to read something like constitutional morality into these provisions.

When the word used is “sadachar”, and there is a long history explaining what “sadachar” means, including what Ganesh says and what the Brihat Hindi Kosh states, “accha acharan is sadachar”, that is the direct Hindi understanding.

I have also referred to provisions and judgments of this Hon’ble Court which recognise “approved custom over a period of time”. Therefore, there is no question of reading constitutional morality into these provisions.

Constitutional morality may be an objective which one seeks to achieve in the future. But “sadachar” refers to something that already exists and is accepted as proper conduct.

So morality, in this context, has to be read as “sadachar”.

Yes, constitutional morality operates in a different sphere. It is relevant in the context of constitutional functioning, conventions and structures. But not in the context of Articles 25 and 26.

As your Lordships indicated, that was the way the Greeks understood it. It was about respect for the Constitution, which is what constitutional morality signifies.

But it cannot be used as a constitutional instrument to interpret or circumscribe Articles 25 and 26, because that was not envisaged.

Your Lordships have also referred to a swadeshi interpretation of the Constitution in that Presidential reference, the Governor’s reference regarding Bills. I have also relied on that.

Senior Advocate CS Vaidyanathan: We do not have a system of a Pope, Archbishops or Bishops. That kind of ecclesiastical structure we do not have. But if Hindus want to visit a particular temple, the sampradaya attached to that temple must be followed. Now, take the case of Ayyappa. We do not have that rigid system. All Hindus are Hindus. But interestingly, in Sabarimala, no distinction is made. There is no bar to Christians or Muslims entering. They can also go. But they must have faith and belief in the divinity of Ayyappa. Therefore, they have to follow the vratam, the 40-day vratam, and whatever practices are enjoined on the believers, and then approach. Nobody is prohibited from this. Therefore, this concept, unfortunately, has not been properly understood. It is not necessary that a religious denomination means that a person should belong to a particular religion and that it is a branch or sub-branch of that religion. That is not necessary. That is an erroneous understanding. You may belong to one sampradaya or follow one math, but nothing prevents you from going to another math or to a temple belonging to another sampradaya. But you must respect that sampradaya..., in the Kashi Vishwanath case again, once you go under a sampradaya in a religious temple or institution, the moment you start questioning it, you go out of that denomination... But you cannot try to change the beliefs. Either you go under it or you leave it. Under Article 25, you may have your individual belief. You are entitled to that. But if you want to go to a temple or an institution belonging to a particular sampradaya, then you must believe in that sampradaya, be part of that sampradaya, and follow its practices.

CJI Kant: In guruvayoor temple we have to take off our shirts, in the Amritsar golden temple we have to cover our heads. There are many such temples.

Justice Aravind Kumar: So article 26 is not an island provision right ?

Senior Advocate CS Vaidyanathan: The question is not whether it is an island provision, or whether it can be controlled by Article 25(2)(b). Article 25(2)(a) and 25(2)(b), leave that aside.

Justice Kumar: If you say that this is an island provision or a standalone provision, that would mean you are canvassing that if it is not governed by Article 25(2)(b), then by virtue of that, you go out of Part III.

CS Vaidyanathan: Articles 25 and 26 fall under the heading “Right to Freedom of Religion”. Therefore, it is not, in that sense, an island provision. But the question is, can the right under Article 26(b), that is the right of a denomination to manage its own affairs in matters of religion, be subjected to any law made pursuant to Article 25(2)(b)? That is perhaps the prime question which I have to address. Because the issue earlier was in the context of Article 25(2)(a). Under Article 25(2)(a), the question which arose in Shirur Mutt was this, the submission of the Attorney General, as recorded at pages 173 and 180, was whether this is a secular aspect which can be regulated under Article 25(2)(a), or whether it is something to do with religion which cannot be regulated under Article 25(2)(a).That was the limited aspect canvassed before the seven-judge Bench.

Senior Advocate CS Vaidyanathan: My Lords asked whether Articles 25 and 26 form a separate island. My respectful submission is that this is a distinct constitutional framework. Article 26 has to be dealt with separately.

Article 26 is not subjected to other provisions of Part III, nor does Article 25(2)(b) enable the rights under Article 26 to be controlled.

Article 25(2)(b) only enables a law to be made which can, in a sense, regulate the rights under Article 25, that is, individual rights. Therefore, there is no prohibition in making any law for social reform.

For example, if it is said that there should be a Uniform Civil Code, that is something which can be made under Article 25(2)(a) or the first part of Article 25(2)(b). There are two parts to Article 25(2)(b). The second part relates to entry. The first part relates to social welfare and reform, not religious reform.

That is how the Hindu Code was brought in. Prior to the Hindu Code, even among Hindus, there were persons who had three or four wives. There was no restriction. That came to be prohibited thereafter.

Therefore, we have to keep all this in mind. Even today, if in some other religious context regulation is required, perhaps Article 25(2)(b), first part, can be invoked. But that is for the legislature to decide. It is not for the Court. The legislature has to come up with a law in that regard.

My respectful submission is that Article 25(2)(b) expressly creates a kind of exclusion only in regard to individual rights under Article 25, and not in regard to the denominational right under Article 26.

CJI Kant: That overlaps with two distinct concepts. Article 25 talks of religious practice. Article 26 talks of religious affairs.

Religious affairs deal with the management of religious practice. It is a much broader and wider concept, which is distinct from practice.

Therefore, what applies to Article 25 will not necessarily apply to Article 26.

Suppose a law is made under Article 25(2). Even if that law affects religious practice, and may have some effect on matters under Article 26, that law will still be confined to the power given under Article 25(2).

Senior Advocate CS Vaidyanathan: On the issue of essential religious practices, I submit that in Shirur Mutt, the question arose under Article 25(2)(a). That was in the context of whether the matter related to secular aspects of the management of a temple or institution. It was not concerned with testing whether any practice is essential to religion.

That is a very important distinction.

In in Dargah Committee, Seshammal, and Adithyan cases, the Court has erroneously approached the issue and adopted a test of essential religious practices without going into these aspects.

Senior Advocate CS Vaidyanathan: Whether it is religious in character or secular in character is a test for the purpose of determining whether a law can be made, but not whether a particular practice is essential to the religion.

That is not a matter which can be considered by the Court. It does not fall within judicially manageable standards.

Justice Nagarathna: Keep aside the Sabarimala controversy. Generally, if you say only persons of a particular group are allowed, only they must come here, followers of Sankhya must go only to Sankhya, followers of Sankhya must not go to Sringeri, followers of Sringeri must not go elsewhere, that is not the reality. That is why it cannot happen. See, the reality is that people go here and there.

Senior Advocate Vaidyanathan: Hindu temple will be disadvantaged if we say that 25(2)(b) effects 26(b)... that this is a matter which should be taken note of by every denomination and they may take a decision.

Justice Nagarathna: We are now testing the provisions of law based on the constitutional provisions. That is why we are telling you, do not pitch it so high.

Senior Advocate Vaidyanathan: I have to go by the text of the Constitution. I am going by what Your Lordships have said in Shirur Mutt, a seven-judge Bench. Today, the decision of a seven-judge Bench in Shirur Mutt is that. If Your Lordships want to revisit that, that is a different issue. Shirur Mutt is correct. It holds this position...

What is a public temple? Gopal Mukundar’s definition is relied upon... it is stated, it is clear from the above that temples were intended for the worship of people belonging to all castes without exception. Even outcastes were not wholly left out of the benefits of temple worship, their mode of worship being, however, made subject to certain restrictions.

Then paragraph 22 says that a Hindu institution of a public character, by plain meaning, cannot be an institution of a religious denomination or a section thereof. That is the judgment in Venkataramana Devaru, relying on Gopal Mukundar.

CJI Kant: These arguments probably will not survive for two reasons. One, what you are arguing is directly in the teeth of the language of Article 25(2)(b). Directly in the teeth of it.

Assuming Article 25(2)(b) applies, you are using the argument that it will have no effect on Article 26. But Article 26 itself is subject to public order, morality and health. Article 17 is on morality.

Senior Advocate Vaidyanathan: If a law passes the muster of those three, then I have nothing further to say. I am bound by it. But not by saying that a law under Article 25(2)(b) will have no application at all.

Justice Nagarathna: Another way of looking at it is this. If we restrict it to a particular denomination, it may itself be contrary to morality under Article 26.

Vaidyanathan: That is also a possible view.

Hearing ends

Hearing to resume on April 14.