A 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.

The Court's verdict will have a major impact on various cases, including the case concerning whether women of menstruating ages 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.

Dozens of review petitions were filed questioning the correctness of this ruling. In November 2019, the Supreme Court pronounced its judgment on the review petitions. 

It 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. 

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

The reference verdict may also have an impact on pending cases regarding the entry of Muslim Women in Dargahs /Mosques, excommunication of Parsi Women married to non-Parsis, the practice of female genital mutilation and excommunication practices in the Dawoodi Bohra community.

During the hearing on April 7, the Central government advocated for greater freedom in religious practices and asked whether courts are the appropriate forum to determine what constitutes an essential religious practice. On April 8, the government argued that that the restriction at the Sabarimala temple was not based solely on gender.

On April 15, the Court observed that one of the most difficult tasks for a court is to declare the beliefs of millions of people as wrong or erroneous, and that a religion cannot be stripped of its essential practices in the name of social reform.

On April 17, the Court observed that while adjudicating matters of faith, a constitutional authority must rise above personal religious beliefs and be guided by freedom of conscience and the broader constitutional framework.

On April 21, the Court remarked that it is aware of the limits of judicial review in religious matters and that there was no need for extensive arguments against it.

On April 22, the Court asked whether the State can invoke the principle of constitutional morality and Directive Principles of State Policy to justify social reform laws on religious matters.

On April 23, the Bench briefly debated on whether pre-constitutional religious customs could be protected by Article 25(2) of the Constitution of India. 

On April 28, the Court warned against making arguments that could project any one religion or Indian language as superior to others. 

On April 29, the Court observed that genuine women devotees of Lord Ayyappa may wait till they cross the age of 50 years to visit the Sabarimala temple. The Court also said that it does not want to play any part in the annihilation of a religion while interpreting the scope of religious freedoms on India.

On May 5, the Bench posed tough questions on why a 2006 PIL on the Sabarimala temple entry issue was filed or entertained by the Court at all. The Court observed that the practice of excommunicating Parsi women who marry outside their community appeared to be discriminatory.

Yesterday, the Court began hearing arguments against excommunication practices in the Dawoodi Bohra community.

Live updates from the hearing today feature on this page.

Senior Advocate Raju Ramachandran on the excommunication: Dawoodi Bohra case

Senior Advocate Ramachandran: Excommuincation led to break of Marriage, loss of employment, complete social ostracism, and most importantly, if a person is excommunicated, they can neither go to the mosque nor be buried in the community graveyard. Therefore, an individual’s Article 25(1) right is effectively taken away. The only reason for giving this instance is as part of my submission

Justice Nagarathna: Is excommunication still on?

Ramachandran: Yes.

Senior Advocate Ramachandran: All that I am saying today is that when Your Lordships are dealing with this interplay between Articles 25 and 26, it is not merely about temple worship. If Mr. Khambata had not mentioned the issue of a Parsi woman’s deemed conversion, or if Mr. Siddharth Luthra were not to mention female genital mutilation, then Your Lordships would be deciding these questions in a purely academic manner, which ought not to happen. Therefore, it becomes necessary to indicate the factual situations in which these questions arise. One cannot fully understand the scope of Articles 25 and 26 in the abstract, without some factual background.

CJI Kant: You are placing these facts only for that purpose. You are not asking us to adjudicate these individual instances.

Senior Advocate Ramachandran: Not at all. Those issues are not before the nine-judge Bench. There are several other issues also which are not before the Bench, and I will come to them later.

CJI Kant: We are not dwelling much on these individual controversies. Whatever material was available has been placed before us. It is only illustrative.

Justice BV Nagarathna: No, the Article 32 petition was filed by the Syedna to say that his Article 25(1) and Article 26(3) rights were violated vis a vis the State law. The State law came under Article 25(2). The Act was brought for the protection of certain rights of a particular community. That community was a direct stakeholder and was not impleaded. If the manner in which the provision was interpreted is questionable, that is a different issue.

CJI Kant: Therefore, let us concentrate on the question of law here.

Senior Advocate Ramachandran: There is no suddenness in this, with the utmost respect. There is no suddenness at all. Generations of persons have suffered excommunication and humiliation. They have suffered indignity and died with it. It takes courage to approach the Court. These practices continue. There is exclusion, there is social ostracism. It amounts almost to a civil death for a person. I cannot be told, in a matter involving Article 21 and fundamental rights, that this is merely a procedural issue. This is not CPC. This concerns Article 21. There can be no waiver of Article 21. There are families who have suffered indignity. And now we are told that this is effectively a one party review. I could not file a curative petition because the curative jurisdiction itself did not exist at that point of time. This writ petition has remained before this Hon’ble Court for forty years, has gone through the entire process, and has now reached this Bench. Thereafter, a five judge Bench itself says that common questions arise and asks us to assist the nine judge Bench. And yet, repeatedly, I am required to come back and explain why we are here. That is the last aspect of my submission. I repeat again.

Justice BV Nagarathna: A group of individuals from your community may come before the Court and say, please restore excommunication. They may contend that it is part of their religion and that their religious rights are violated. Now, what should this Court do in such a situation? Can this Court continue deciding such issues every time different groups within a religion approach it with competing claims?

Justice Amanullah: Now, you have formulated it in a manner where, even if the issue concerns religion, you then bring in proportionality. Is that not itself difficult to reconcile with Article 26 and denominational autonomy?

The argument on the other side would be that the moment there is even the slightest religious element involved, even a small religious component, then the matter must be left entirely to the denomination to govern itself.

Because otherwise, who decides proportionality? If there is even a slight tinge of religion in the practice, then according to that argument, it must be completely within the denomination’s own discretion.

If the Court starts importing proportionality into that exercise, then the very protection under Article 26 may become diluted.

Now, you may have a point when you say that certain consequences of excommunication can be segregated and examined separately. But once you say that even though a practice has a religious flavour, the Court can still examine its proportionality, then at least tentatively you will have to satisfy us on that proposition.

Justice Nagarathna: The question is whether the act of excommunication is a secular act or a religious act.

Senior Advocate Ramachandran: If Your Lordships are asking about the nature of the act, my answer is this...

SC: Please answer the question directly. Is it a secular act?

Senior Advocate Ramachandran: It can be a religious act associated with a religious practice.

SC: Or is it itself a religious act? Answer that.

Justice Amanullah: Can one examine whether the basis of excommunication is secular or religious. The moment excommunication is founded on a secular aspect, then perhaps a challenge may lie. But if it is founded on a religious aspect, then tentatively Article 26(b) may come into play.

Senior Advocate Ramachandran: I understand the anxiety behind the question. But then the further question would arise, even assuming it is religious, to what extent and with what consequences can excommunication operate.

Justice BV Nagarathna: Once everyone starts questioning certain religious practices or matters of religion before a constitutional court, then what happens to this civilization, where religion is so intimately connected with Indian society? There will be hundreds of petitions questioning this right, that right, closure of the temple, right? We are very, very conscious of this.

Justice BV Nagarathna: What is unique about India as compared to any other region? See, we are a civilization. Why are we a civilization despite having so many pluralities and diversities? I said diversity is our strength. We continue to remain a civilization.

You may call us a sovereign democratic republic, but there is still a constant. One of the constants in Indian society is the relationship of human beings, man, woman or child, with religion. It is deeply intimate to everybody.

Now, when a religious practice or a matter of religion is questioned, where it is questioned, why it is questioned, whether it can be questioned, whether the questioning has to come from within the denomination itself for reform, or whether the State has to do it, or whether you want the Court to adjudicate upon all these aspects, these are the things troubling us. See, what we lay down as a nine judge Bench is for a civilization. That civilization is India. India has progressed despite all its developments, economy and everything else. There is still a constant within us. We cannot break that constant. That is what is troubling us.

Senior Advocate Raju Ramachandran: We are a civilization under a Constitution, and therefore nothing which goes against the grain of our Constitution can be countenanced in a civilized society governed by the Constitution.

And it requires judicial statesmanship. That is where the task of the courts, the very difficult task of the courts, comes in. The courts cannot throw up their hands and say that otherwise there will be too many petitions. No. It is then the duty and responsibility of the Court to determine whether there is a clear violation of fundamental rights warranting constitutional protection, or whether it is merely a difference between members of a religion which does not rise to that level.

Ultimately, that depends upon the wisdom and statesmanship of this Court. But this does not mean that there can be a judicial hands off approach. In my humble and respectful submission, that position cannot be accepted.

Senior Advocate Ramachandran: On constitutional morality: There is nothing sacred about a particular word. If the word “constitutional morality” is found irritating, then use another expression. Call it constitutional philosophy or constitutional ethos.

But can we deny constitutional legitimacy? Can we deny that there is a core set of constitutional values which must inform the meaning of every word used in the Constitution, including the word morality?

After the Sabarimala judgment, constitutional morality was often described in incredulous terms, almost as though it were some alien concept being thrust upon society. But to ask today what constitutional morality means is like asking what the basic structure doctrine means.

If there is a basic structure, then equally there exists a core of constitutional values which together form the constitutional ethos. If the word “morality” is objectionable, then do not use it. Use another expression.

And merely because Dr Ambedkar used the phrase in a different context during the Constituent Assembly debates, namely institutional propriety between organs of the State, that does not mean the expression is frozen in that sense forever.

This is an evolving constitutional idea. In fact, I have placed extracts where Dr Ambedkar spoke of constitutional morality in the context of majoritarian impulses operating against minorities and vulnerable citizens. Therefore, constitutional morality cannot be confined only to the sense in which it was originally used in the Constituent Assembly.

Justice Joymalya Bagchi: You will agree that constitutional morality cannot be a touchstone to test the constitutional validity either of a legislation or of a religious practice. Therefore, reading the expression “constitutional morality” into morality under Article 26 may not be the correct way of construing the provision.

I appreciate your argument that Article 26 cannot be read in isolation and that it must also be tested alongside other fundamental rights, particularly Article 21. But the testing has to be against specific constitutional rights.

As has also been held in the context of the basic structure doctrine, the basic structure itself cannot directly become the touchstone for judging constitutional validity. That is what we understood.

By using a broad and vague expression like constitutional morality, one cannot render the provision completely ubiquitous. It must instead be shown how the practice runs contrary to specific constitutional guarantees, whether under Article 15, 17, 19, 21 or other fundamental rights.

Senior Advocate Ramachandran: Since the view of one of the members of the Bench on this issue has been expressed very strongly. Equally, I, as counsel, wedded to this Court, its ethos and its values, believe that Your Lordships will grant me the indulgence of expressing my viewpoint equally strongly.

CJI Kant: First of all, let us be very clear. From our side, all observations are tentative. We are very unpredictable. The Supreme Court is always unpredictable. The stronger the question, the stronger the doubt in our minds, and therefore we seek greater clarity.

Ramachandran: I am obliged, My Lord.

CJI Kant: But you certainly have the right to present your case with the greatest force possible. Counsel’s submissions cannot themselves be tentative. You have the privilege of advancing your case with the strongest points available.

Ramachandran: The validity of the 2016 Act is not under challenge before Your Lordships. It is not under challenge. The five judge Bench which referred this matter here specifically recorded the existence of the 2016 Act. It also recorded the submission of the Solicitor General, apart from our own submissions, that the question concerning the validity of excommunication as a practice still survives. It is on that basis that the five judge Bench referred certain issues to this nine judge Bench.

Senior Advocate Sidharth Luthra argues on Female Genital Mutilation under the Dawoodi Bohra rules.

Senior Advocate Siddharth Luthra: What is the right of the denomination, Article 26(b) becomes important because it protects institutional rights. It lays down a set of rules governing what can and cannot be done. Those rules may be inviolable, or they may be capable of modification or evolution, because societies also undergo change.

But where a denomination goes beyond governance and internal management, and begins controlling the spiritual lives of its members in a manner that goes beyond guidance and enters into the realm of constraining the exercise of other fundamental rights, I ask myself whether that would still be permissible. I believe it would not be.

And we must also keep in mind, what is a denomination? A denomination is ultimately composed of individuals. It is the individuals who together form the denomination.

There may be societies, temples, institutions or other religious bodies, but all of them are comprised of individual members. If every individual is excluded on the ground that they do not conform to a particular line, then ultimately what remains is merely an empty shell of the denomination itself.

Therefore, the denomination must also remain cognizant of, and sensitive to, the beliefs and rights of the individuals who constitute it.

Justice Amanullah: Can the person in that community prevent a person from leaving that community? Because ultimately it is a matter of belief. I may hold a belief, but to associate myself with that group, to call myself a Dawoodi Bohra, it may be said that I must owe absolute obedience, dedicate myself totally, even more than 100 per cent, to the Dai. Now suppose I decide that these things are beyond acceptable limits and I want to leave. Am I permitted to do that?

Senior Advocate Luthra: There is no restriction .

Justice Amanullah: Then there are no penal consequences.

Justice Bagchi: As far as female genital mutilation is concerned, we may not even need to travel into all these other rights. The expressions “health” and “public health” themselves may be sufficient.

Senior Advocate Siddharth Luthra: I am grateful, My Lord. That is precisely what I was submitting. The nature of the injury is that the clitoris or the surrounding skin is removed. That part of the body contains around 10,000 nerve endings. This is done at the age of seven. It is mutilation of a vital organ of the female body, and it directly impacts physical health, reproductive health and emotional health.

Justice Bagchi: And sexual autonomy.

Senior Advocate Siddharth Luthra: Yes, My Lord. Public health is clearly attracted.

Luthra: The issue is why such a practice is carried out. It affects not one but a series of rights.

It is also important to point out that this practice is not confined only to one community in India. It is followed among sections of the Sunni community in Kerala as well. Historically, it predates several organised religions. It existed in pre Judaism times, is followed among Coptic Christians, and in parts of the United States and elsewhere across the world.

Where a practice intrudes into bodily autonomy and mutilates a vital organ, it necessarily falls foul of the limitations under Articles 25 and 26, namely public order, health and morality.

And any law treating such mutilation as an offence causing hurt or grievous hurt would certainly be a valid restriction, even if not enacted specifically as a reform legislation.

Senior Advocate Siddharth Luthra: It may fall under several statutory offences already. The very expression “mutilation” indicates distortion of normal human anatomy. It serves no beneficial purpose. What makes it more serious is that it is carried out on seven year old children, incapable of consent. And because it is treated as part of the belief system, families feel compelled to comply.

SC: If parents refuse consent, is there apprehension of excommunication?

Senior Advocate Siddharth Luthra: Today, before Your Lordships, we have only a few litigants willing to speak openly about these experiences, including persons who have suffered excommunication. The difficulty is that many such practices continue behind closed doors. The issue is not merely bodily injury. It causes pain, suffering and long term impact.

SC: There is no law in India banning this practice?

Senior Advocate Siddharth Luthra: No, My Lord. Around 59 countries across the world have banned it. In some countries, including Egypt and Australia, courts have also intervened judicially. But there is no specific prohibition in India.

Justice Bagchi: What you are really challenging is the proposition that female genital mutilation can be treated as a protected matter of religion despite its impact on the physical and mental health of a minor child. So it is not only secular acts leading to excommunication which may require scrutiny, but also religious practices which seriously intrude upon bodily and mental integrity.

Senior Advocate Siddharth Luthra: Keep one thing in mind. There will be three levels at which Your Lordships may consider this. One is where the community or denomination impairs the life of a minor. That is relatively straightforward because the issue there is absence of consent. A minor cannot meaningfully consent.

Then comes the question of power relations. Even in the context of sexual offences, the law recognises that unequal power structures constitute some of the gravest forms of violation. The same recognition exists in workplace jurisprudence as well, which is why we had the Vishaka judgment.

Therefore, my submission is this: whether it concerns minors or adults, what we are really confronting is the power of a denomination being asserted against the individual believer. And if an individual believer ultimately feels oppressed by such a practice, are we then to merely debate whether it is an extension of religion or not? Or are we to examine whether it violates Articles 14, 19 and 21, and if it does, strike it down?

That is the real issue I want Your Lordships to consider.

Justice Nagarathna: But within Article 25(1) itself, there are already limitations.

Senior Advocate Siddharth Luthra: Absolutely.

Justice Nagarathna: Therefore Article 26 also has to be read in that context.

Senior Advocate Siddharth Luthra: Yes, it has to be read together.

Justice Nagarathna: The entire issue concerns individual practices and reform. But would not Article 25(1) itself contain the necessary limitations? Public health and morality are already there. Therefore, it may be preferable to locate the argument within Article 25(1) itself rather than rely entirely upon a broader theory.

Senior Advocate Siddharth Luthra: I completely agree. The same three limitations are there: morality, public health and public order. My submission only goes slightly further because Article 25(1) is also expressly subject to the other provisions of Part III. And I, as the believer, form the denomination itself. Therefore Articles 25 and 26 cannot be read as entirely disconnected provisions.

CJI Kant: If I have understood your final proposition correctly, you may be putting forward a broader constitutional argument. Namely, that even apart from the interplay between Articles 25 and 26, the larger constitutional guarantees themselves may override practices that infringe fundamental rights.

In other words, even if there were no direct dependence upon Article 25, Article 26 by itself could not justify or reinforce something fundamentally violative of constitutional protections. Is that what you are suggesting?

Senior Advocate Siddharth Luthra: That is one part of the submission, yes. But I am not saying these rights are absolute or unregulated.

That is why I said that when we deal with minors, or with persons who may not have the ability to approach courts themselves or fully appreciate the consequences imposed upon them, then does not access to justice itself require that they be allowed to invoke Articles 226 or 32?

Because if they cannot approach the Court, then where else are they to go?

Advocate Nizam Pasha: Actually, the very description of it as “mutilation” is itself disputed. That is a separate aspect. But in any case, this is certainly not a matter involving excommunication. That is factually incorrect.

Justice Bagchi: Please answer this. If the father of a seven year old girl refuses to permit this process, would he be acting in breach of the dictate of the Dai or not?

Advocate Nizam Pasha: My Lords, there is no temporal or worldly consequence attached to this spiritual act. For instance, if I do not offer namaz, there is no punishment imposed upon me, however mandatory namaz may be. Similarly, there is no excommunication attached to non observance of this practice. There is no worldly sanction in the Dawoodi Bohra faith for non adherence to this practice. No excommunication, no religious sanction.

Justice Nagarathna: Then is it merely an exhortation without consequence?

Advocate Nizam Pasha: That is why I gave the example. A practice may be mandatory in faith, but that does not necessarily mean there is a worldly sanction attached to non compliance.

It is similar to circumcision for boys. There is no worldly sanction against a person who does not undergo circumcision, though it is treated as mandatory. It remains an individual practice.

Justice Joymalya Bagchi: There is a clear distinction between circumcision and female genital mutilation.

Advocate Nizam Pasha: My Lords, that itself is the issue. The description is disputed. It is not mutilation. It is described within the community as a symbolic circumcision. The procedure referred to is known in the West as hoodectomy, involving the prepuce of the clitoris.

Justice Bagchi: Circumcision of the penis cannot be equated with genital cutting involving the clitoris.

Advocate Nizam Pasha: My Lords, the understanding within the faith is different. The stated object is not suppression of sexuality. According to the belief, the opening of the tissue around the prepuce of the clitoris is considered to increase sexual pleasure for women. There is also a practice known as hoodectomy in parts of the Western world.

I am only placing before Your Lordships the position as understood within the Dawoodi Bohra faith because in this matter I represent the community. Around 60,000 women from the Dawoodi Bohra community have formed an association and approached this Court through us. I speak on their behalf.

CJI Kant: The larger legal question before us is different. While reading the majority opinion striking down the 1949 Act, we were indicating that the doctrine of stare decisis was applied. Therefore, to the extent the Act was found inconsistent with protected denominational rights, it was struck down, and to the extent it fell within permissible constitutional parameters, it was upheld.

Justice Amanullah: Don't divert the issue. It is compulsory in India. If FGM is compulsory we have to adjudicate on the basis of that.

Senior Advocate Jaideep Gupta: May it please Your Lordships. I appear in the Sabarimala matter for the State of Kerala. I must begin by saying that since I represent a State presently in the midst of political change, I may disappoint several people in this courtroom by not addressing Your Lordships specifically on Sabarimala itself. Of course, if Your Lordships have any questions, I will certainly answer them.

Secondly, I am not shirking my responsibility because when the matter was referred to this Bench, one of the express questions was whether these issues could be decided independent of specific factual disputes. Your Lordships answered that in the affirmative, much like in T.M.A. Pai Foundation, where broader constitutional principles were considered without entering into individual factual controversies. And as Your Lordships have already seen over the course of yesterday and today, the moment we descend into factual disputes, the entire atmosphere changes.

Senior Advocate Gupta: The State itself is undergoing a transition, and at the same time, I have the rare advantage of not being required at this moment to defend a rigid political position. That allows me to assist the Court with a greater degree of freedom.

Senior Advocate Gupta: One aspect of the doctrine of precedent is undisputed: a higher court binds the lower court. To that extent, once a nine judge Bench is constituted, there is effectively no precedent of this Court or any other court in the country which is binding upon Your Lordships. That particular aspect of precedent therefore does not arise here.

However, there are two other principles underlying the doctrine of precedent which I wish to emphasize. These emerge from the House of Lords judgment in Bourne v. Keane, which has been accepted in Halsbury and later accepted by this Court in several judgments... In other words, though not strictly binding, even a higher court would ordinarily follow a settled line of authority unless there are compelling reasons to depart from it. Of course, if the interpretation is plainly erroneous, or if it produces injustice or inefficiency, then Your Lordships may certainly depart from it.

My limited submission is this: the interplay of Articles 25 and 26 has been debated and developed in this Court over seventy five years. The accumulated constitutional wisdom of those seventy five years ought to be carefully examined before any departure is made.

Gupta: We are interpreting existing rights, naturally including Article 21. We are only understanding the core of those rights in order to define their ambit. As paragraph 260 of Puttaswamy itself indicates, this is ultimately an exercise in interpretation.

One may interpret the freedom of religion to mean that essential religious practices are protected. That is entirely within Your Lordships’ interpretive domain. This doctrine has therefore been followed for decades. It is not some addition to the Constitution.

Justice Nagarathna: But who is to adjudicate whether something is essential or not?

Gupta: That is the next aspect of my submission, though since Your Lordships have raised it, I will briefly answer now and elaborate later. If the issue arises whether something constitutes an essential religious practice, the Court adjudicates it on the basis of evidence from members of the religion itself. The Court does not substitute its own theological opinion. Please do not view this on the same footing as judicial review invalidating a religious practice. If a practice violates equality and Your Lordships strike it down, then the Court may be overriding a religious claim. But this exercise is different.

Justice Nagarathna: Then would it not be more accurate to say that the exercise resembles proof of custom and usage?

Gupta: Quite right. It is similar to proof of custom and usage, which courts undertake regularly. The inquiry is whether a particular practice is regarded as essential within that religion.

Bench: But how does one distinguish religion from secular activity? Article 25 itself refers to secular activity associated with religious practice. The State may argue that it is easy to identify secular activity, and everything else is religion.

Counsel: While I agree with Your Lordships and am grateful for the question, I must add the caveat that the distinction is often not easy. Your Lordships have yourselves observed that in earlier cases.

Justice Nagarathna: Take the example of Paryaya. The question there was whether a large amount of money required for the once in two years ceremony was necessary, or whether that expenditure was secular. Now, Paryaya itself is undoubtedly a religious practice. Suppose a certain quantity of ghee is required for a havan. One cannot simply say that purchase of ghee is entirely secular. Buying ghee itself is not religious.

Gupta: No, My Lord. The issue is how much ghee the Agamas prescribe for the ritual. If the Agamas prescribe ten grams of ghee, then there is no question of the Court examining whether ten grams ought to be used or not. When Your Lordships are distinguishing between secular activity and religious practice, the doctrine of essential religious practices does not truly arise in the same way.

Senior Advocate Gupta: Suppose something is accepted to be a religious practice. Suppose it is not essential. Then the question whether it may nevertheless be overridden will depend upon public order, morality and similar constitutional limitations. One may even argue constitutional morality if Your Lordships accept that framework.

When the State legislates under Article 25(2)(b), for example to permit temple entry, what is admittedly a religious practice is being overridden by something authorised by law.

But if something is merely secular activity associated with religion, then it is not really a religious practice at all. Therefore, we do not apply the essential religious practices test merely to distinguish the secular from the religious.

However, if two religious claims come into conflict under Article 25(1), then some principle of resolution becomes necessary.

Justice Nagarathna: Then we will have to examine whether it falls within Article 25(2)(a) or 25(2)(b).

Gupta: My Lord, I am not arguing Sabarimala specifically.

Justice Nagarathna: But what is the test then?

Gupta: Suppose two persons with locus standi approach the Court.

Justice Nagarathna: If they are believers, then...

Gupta: Of course they are believers.

SC: Then why would believers challenge one another?

Gupta: Because one practice may infringe what the other believes to be his fundamental rights. One believer holds one understanding of religion, another believer holds a contradictory understanding.

Justice Aravind Kumar: But the mechanism you are suggesting, where do you locate it within Article 25(1)? You are asking us to resolve a dispute raised by a member of a religious denomination against the denomination itself on the basis of Article 25(1). How and where do you derive that from?

Justice MM Sundresh: No, that is not the issue in Devaru at all. What we are saying is this: when you say power is exercised, you must identify the source of that power. That is all.

Senior Advocate Jaideep Gupta: Yes, Your Lordship will certainly identify the source of power. There was no challenge to the section itself. The issue was whether the legislation conflicted with Article 26(b).

Justice MM Sundresh: What we are putting to you is this: when you speak of social welfare and social reform, those are concepts distinct from ordinary regulation. The threshold is much higher. The restriction cannot simply be justified in a routine manner. The State must satisfy why interference is necessary in the interest of social welfare or reform.

Senior Advocate Jaideep Gupta: Please see, My Lord, there is a second part to Article 25(2)(b). It specifically speaks of throwing open Hindu religious institutions. The legislation in Devaru was enacted precisely to satisfy that constitutional mandate. The argument there was that in giving effect to Article 25(2)(b), the legislation infringed the rights protected under Article 26(b).

There was also a question whether there existed a pre constitutional denominational right.

Justice MM Sundresh: No, there were really three questions. The third question was whether they had a right under Article 26(b). That is what we are dealing with now. We are not disputing the structure of the argument. What we are saying is that if Article 25(2)(b) is interpreted as universally overriding all denominational rights under Article 26, then that creates another issue. That was the debate there. That is not necessarily the same issue here.

Senior Advocate Jaideep Gupta: Yes, My Lord. That argument can certainly be tested if it arises.

Bench rises.