A 9-judge Constitution Bench of the Supreme Court is currently 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 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 organizations 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.
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.
Follow this page for live updates from today's hearing
Senior Advocate Rajeev Dhavan: It is singularly impossible for us to be accommodated till tomorrow. You say you will read our written submissions. You won't. You are the most overworked judges in the world. We write written submissions to support our oral arguments, not the other way around. I have a great reservation about what SG argued.
CJI: Let SG complete and thereafter we will follow the order of seniority and hear you all.
Dhavan: Review petition is not being decided here. Then who is here for review petitions is irrelevant.
SG: Mr Dhavan's submissions contradict our submissions the most. I perhaps will have to give a rejoinder to Mr Dhavan. Others are arguing other nuances on the same line.
CJI: That will create complications for us also. Let Mr Dhavan wrap up what he has to say. We understand because of overburdening of this court we will not read written submissions.. but we wanted to utilise the summer vacations for it.
CJI: There are a lot of lawyers who just want to replicate stuff just because live streaming is there and want to be on camera.
Senior Advocate Indira Jaising: I am in complete disagreement with the SG. I am the senior-most on my side. I will argue an hour.
Justice MM Sundresh: The tendency, with respect, is to secularise in two different ways. One cannot say that religious practice is different from religious belief and then treat them as entirely disconnected. There has to be some connection. It cannot be a loose or remote connection. What is happening is that belief is being replaced, and only the practice is being tested, without reference to the underlying belief.
SG Tushar Mehta: The question I pose to myself is this: how would the Court decide what is a superstitious practice? That is one aspect, within judicial review. But there is a more fundamental issue. Even assuming there is a superstitious practice, the answer is not for the Court to determine that this is superstition. Under Article 25(2)(b), it is for the legislature to step in and enact a reform law. The legislature can say that a particular practice is superstition and requires reform. There are several such statutes, laws dealing with black magic, prevention of such practices, and others. So, it would not fall within judicial review for the Court to classify something as superstition or religion, and then go further to examine whether it is an essential part of religion. That, in my respectful submission, is the position.
Justice Ahsanuddin Amanullah: Mr Mehta, you made it too simplistic. The Court has the right and the jurisdiction to hold whether it is superstitious. What will follow is for the legislature to decide how to deal with it. But then, in Court, you cannot say that whatever the last word is what the legislature decides. That cannot be…
SG Tushar Mehta: I have a slightly separate view. A secular court cannot decide a religious practice as mere superstition, because Your Lordships do not possess that kind of scholarly competence. Your Lordships are experts in the field of law, not in the field of religion.
Justice Amanullah: Then we have to classify those things which have that colour. When you come to court..we have to..
SG: Something religious for Nagaland may be a superstition for me. We are in a greatly diverse society. Maharashtra has black magic act..they may say that this is the practice prevalent in our area and that's why protect it under Article 25(2)(b).
Justice Joymalya Bagchi: Witchcraft is considered to be part of religious practice. Would you or would you not have it as superstition? Your argument from there is that it is the legislature to take it up and prohibit any practice which promotes it. Let us say the court is approached under Article 32 saying that there is a religious practice of witchcraft and the legislature is silent. Cannot the court use the principle of unoccupied field to give directions for prohibiting such a practice, keeping in mind not going into essential religious practice, but on the beacons of prohibition like health , morality , and public order.
SG: it will fall under public order, morality, not because it is superstition. When Your Lordships are examining a jurisprudential doctrine, Your Lordships would normally not take extreme examples and test it. That is part of jurisprudential theory.
Justice Bagchi: But that is what we do ..we stretch it to absurdium and test it.
Justice Sundresh: If we try to find the case of this, you can adopt a hands-off approach. But to say that it is to completely denude the Court of jurisdiction… the issue is of void and voidable action. If its so violative like Sati etc..court can intervene..
Justice Sundresh : That is why the purpose of the legislature is there in Article 25. But that does not take away the Court's jurisdiction in an appropriate case.
SG Tushar Mehta: I never argue that, because that argument always fails against the jurisdiction of the Court. The Court is always zealous to protect its jurisdiction, and rightly so.
CJI: First, if something is there like witchcraft, cannibalism or human sacrifice, which shocks the conscience of the Court, then on the face of it, no further adjudicatory exercise may be required. We cannot replace ourselves with the expertise of subject experts. We are only examining how far such a matter can fall within judicial review. The moment there is such a kind of practice, the Court will simply say that it is contrary to public order, morality or health.
Justice Nagarathna: The approach of the court in such a matter must also be to determine essential religious practice through the lens of the philosophy of that religion. You cannot apply some other religion and say it is not an ERP. Ofcourse subject to public order, morality. This is about how the court examines this, not whether it has jurisdiction.
SG: But here, in the Sardar Syedna Taher Saifuddin Saheb v. State of Bombay case, the Court struck down the law, holding that Article 26(b) gives exclusive rights to the denomination, including the power to excommunicate.
Justice B.V. Nagarathna: But here, in the Sayedna case, they struck down the law, saying that Article 26(b) gives exclusive jurisdiction to a denomination to excommunicate anyone.
SG Tushar Mehta: My Lords, that was also rejected… but kindly see now… excommunication…
Justice Nagarathna ' Article 25(2)(b) and Article 26(b)… ultimately, the Court said that Article 26(b) will prevail…
SG: it will not…
Justice Nagarathna: They struck down that…
SG: yes but they upheld the practice…
Justice Nagarathna: Under Article 25(2)(b)… with the result… it was struck down… excommunication… it was struck down.
SG Tushar Mehta: Now this was the case of a Tamil Nadu temple, and there is a position of Archaka. Archaka, my Lords, in our parlance outside Tamil Nadu, would mean pujaris. Pujaris who go into the sanctum sanctorum deal with the deity, give bedding to the deity, change the clothes, and perform all rituals. And there was a provision in the belief system, in the faith system, and in the religious practice that the Archaka would be hereditary. Because one Archaka would teach the particular methods of worship, how to pray, how to perform rituals, to his son and so on, because precise mantras have to be recited at particular times of the day, at particular events, for example, when the deity is taking food, when the deity is put to rest, and so on. So this goes from generation to generation. These are not abstract propositions. The Agamas provide for detailed procedures that are taught to the successor. This is called the mode of succession.
Now, my Lords, the Tamil Nadu government enacted a law saying that they would appoint Archakas, because the appointment of an Archaka is a secular activity, though he may be performing religious functions. Mr Palkhivala appeared. I have read his submissions. Beautifully put. This is how the Court records it, and correctly so.
I am told Mr. Gopal Subramaniam’s father also appeared in this matter. According to the Agamas, the appointment, the mode of succession, the qualifications, these are all matters of religious practice. Whether by nomination or hereditary succession, it is part of the religious framework. There may be situations where qualified persons are called, interviewed and appointed, but even that is part of the religious structure and should be left to the denomination. That was the argument. He therefore contended that the priest is integral to the religion… The Court notes that the priest or Archaka, when appointed, performs essential religious functions of the deity. He is not the spiritual head of the institution, but he has a more direct role in relation to the deity than even the spiritual head, in terms of performing rituals.
Now the State says that heredity may not be necessary, that qualifications can be prescribed, knowledge of rituals can be ensured, and a transparent selection process can be adopted. Therefore, they say it is a secular activity.
SG: In a public temple, the appointment of a pujari, who requires specific expertise, qualifications, and knowledge of the Agamas, can never be left to the government, my Lords. A government of non-believers, or even of believers, cannot substitute this. This tradition is rooted in faith and belief. It is how the religion has evolved. And the denomination would trust only a person with the necessary qualifications and expertise to perform rituals and touch the deity.
Justice Nagarathna: Anyone well-versed with agamas can be selected, that's what the judgment says.
SG: The denomination can say.
Justice Sundresh: There is no denomination there.
SG: Let us just not go by that temple only.
SG Tushar Mehta: It cannot be done under a statute or by the State. By this very logic, tomorrow, a Shankaracharya can be removed by the State, or an Archbishop can be removed by the State. These matters must emanate from within the religion, from the society, from the denomination itself. They cannot be State-controlled. That, in my respectful submission, is true secularism. If religion does not interfere with the State, the State must also not interfere with religion. Otherwise, this is the danger.
Your Lordships are a nine-Judge Bench, and the question is whether Articles 25 and 26 will be read in the manner they have been interpreted in Seshammal judgment.
Justice Nagarathna on the Auroville judgment: Please keep the illustration separate. Let us see Aurobindo. Is that philosophy a religious denomination? It can be a denomination but not religious.
SG: It is religion. This may be your ladyship's honest and informed view but what is relevant is my view as a follower. Whether I believe that to be religion.
CJI: we get your argument. It is because Aurobindo's followers believe that the view they follow is a religious view, it carries all the ingredients of a religion; therefore, they themselves carve out to be an exception or denomination, therefore others cannot impose on them that no, no, you are not a religion. If someone says I follow Aurobindo right from morning since I get up till I sleep. I follow his idea, his philosophy, his guidance and treat him as my supreme being then who are you to tell me that it's not religion. This is your submission.
Justice Nagarathna: It can be freedom of conscience . But cannot come under religious denomination..
SG: it would be a religious denomination... Else under 26(b) state can say for these followers something is not allowed.
Justice Nagarathna: but it's not a religious denomination
Justice Bagchi: You are applying the test in the wrong place. What is the test being applied to? Is it to the people visiting the institution or to the Mutt? I understood the ratio to be that the test is applied to the organisation of the group of persons who are managing the temple or the Mutt. Whether they have a common faith, whether they have a common organisation, whether they are chosen by the followers of the Mutt, and that they themselves are followers and bound by that faith. That is the viewpoint.
Justice Ahsanuddin Amanullah: Mr. Mehta, you were just referring to Ajmer Sharif Dargah.... it is a denomination. ... it is a part or a section of a religion. Because, basically, Islam has Sufi thought, and that practice comes out of it, and then it gets protection. I am sorry, but merely because anyone can go there does not mean it falls outside the purview of a broader denomination of that religion. Why are we trying to interpret Articles 25 and 26 where the language is very clear, unless a particular factual situation arises as to whether that fact would be covered by Articles 25 and 26? The question is: what is the level of protection, to what extent, and in respect of what nature of activity? Unless we keep that in focus, I think there is no dispute. Otherwise, anybody may decide it in that way.
Justice Joymalya Bagchi: Constitutional morality governs secular life. In the religious sphere, what governs is the understood morality of the society, as reflected in the religion followed by a particular denomination or sect. So, can the secular character of the citizen and the religious belief of the citizen be merged in a secular democracy, or tested only on one touchstone, that is, constitutional morality, if the practice is otherwise socially accepted and in consonance with the cultural ethos of the nation? Societal morality…
SG: Constitutional morality is not a ground for judicial review. Our former AG has said that it is an unfortunate concept and must die as soon as possible.
SG Tushar Mehta: But the question is what “morality” means. Is it constitutional morality, or public morality, or societal morality? There is intrinsic guidance in the Constituent Assembly Debates as to how the framers understood this clause.
SG: I am on the point that “morality” here means societal morality. I am not on whether the State can impose a particular view… not every law, whether on morality or otherwise, will have to pass constitutional muster. You do not need a judgment for that proposition.
Justice B.V. Nagarathna: Please, with the passage of time in Indian society, what was once considered immoral or obscene is no longer regarded as immoral or obscene. That is the problem now in India. The problem in India is this. The standards that existed in the 1950s are not the standards today. You said that the standards of the 1950s are narrow-minded. It is not. What is happening today is being portrayed as open-mindedness, but that does not necessarily mean it is. Because now everything earlier is labelled as narrow-minded, myopic, and old-fashioned. This is the problem of Indian society today.
CJI: struggle of evolving society
SG: Tranformative constitutionalism. I have been hearing this. But never understood quite
Justice Nagarathna: not about transformative constitutonalism. That is a good thing.
Bench to resume post 2 pm
SG Mehta resumes submissions.
SG Mehta: Constitutional morality is a sentiment. It is not a doctrine upon which a legislation can be tested.
SG Mehta: In a country governed by democratic principles, it is always the majoritarian view which prevails, particularly when it comes to testing a law, because it is the majority which enacts the law. How then do you define morality on that basis? Thereafter, subsequently, there may be an evolution or change in understanding…
Justice Amanullah: No no... Just because a law is passed by majority does not make it majoritarian.
SG Mehta: I will not go much into it.
SG Tushar Mehta: I would request Your Lordships to allow me to read this fully, for two reasons.
One of the questions which Your Lordships have framed is: What is the extent and scope of judicial review? And the second is: What is “morality”? Whether it is societal morality or constitutional morality.
In that context, there is a judgment in Joseph Shine v. Union of India.
CJI Surya Kant on Joseph Shine v. Union of India judgment which cited Jeffrey A Segal, a well-known American legal scholar (in Justice DY Chandrachud's concurring opinion): Who is this Segal? He has almost been referred here as if he is second Ambedkar?
CJI Kant: These are viewpoints… subjective viewpoints of some professors, some writers, some authors, whosoever it may be. We do not know. We have no clear idea about the eminence of the author whose view has been followed. But ultimately, the judgment as such is not under question…
Justice Nagarathna: Constitutional morality is in the realm of constitutional governance. It may not be palatable to you but that is not the scope here.
Justice Bagchi: That was just the view point of one of the judges. But the ratio was on gender discrimination.
SG Tushar Mehta: I am referring to paragraph 195 of the Joseph Shine judgment, where a JNU professor, Professor Nivedita Menon, is quoted. I do not wish to trouble the learned professor. She is known for certain views, including that the Indian State is illegally occupying certain States, etc., etc. I am not going into that.
But now, that view finds place in a Supreme Court judgment. It has the status of being part of the record.
CJI Kant: If so many foreign authors cited why not some Indian professor?
CJI Kant: How can it be an offence for the woman but not a man. On that ground alone...
SG Mehta: But here dignity of woman has been brought into Sabarimala.
CJI Kant: Atleast we will not be said that representation was not there (concerning members of different faith and gender on the bench). Of course outcome can be wrong etc.
Justice Nagarathna: Thanks to the honorable Chief Justice. Hinting about composition of the bench. You can't say no representation etc.
SG Mehta: It is representative. None of you all are from Harvard, and Yale. This reflects those who have risen from the ranks and played on the streets. So we know what social morality is...
SG Mehta: Dissent is a call to the brooding generations of the future.
Justice Bagchi: You are quoting American judge Huges now. We should look for the best from everywhere and not be a slave to any.
SG Tushar Mehta: My Lords, we should expect light from every quarter of the world, provided we are in darkness. But let us not reverentially follow something coming from the West and selectively introduce it into our jurisprudence.
Justice Nagarathna: Now you are citing Chief Justice Roberts to us…
SG Mehta: Article 26(b) is not an island. But between the two, being a denominational right, it may have precedence, provided that where there is a law requiring it to be curtailed, regulated or restricted, that would be under Article 25(2).
My concern, which I have already shared, is this: if we say Article 26(b) is completely unhindered, then even persons from Scheduled Castes, leaving aside Article 17, could be excluded.
The worry is larger. If Article 26(b) is interpreted as a standalone provision, without any balancing, one denomination within Hindus or Muslims may exclude another denomination of the same religion.
That would create internal disharmony within religions. We may not create a situation where denominations begin to exclude each other.
Therefore, it may be in rare circumstances that Article 26(b) is read subject to Article 25(2)(b), but it can never be treated as an isolated island provision.
SG Tushar Mehta: There are difficulties. Take religions like Hinduism. We have Hinduism, Islam, Christianity. The other religions have one creator, one originator, one holy book, from which you can demonstrate what is stated and therefore what is essential.
Hinduism, as I understand it, not only has plurality, it has internal plurality. There is no one originator, no one creator, no one God, no single religious scripture.
At times, it becomes impossible to demonstrate what is “essential”. It creates an arbitrary situation.
Therefore, in my respectful submission, the essential religious practices doctrine, which has been introduced, is wrongly inserted. It is contrary to .
Textually also, it does not emerge from Articles 25 or 26.
SG Tushar Mehta: My respectful submission is that the right to practise religion should be sufficient. In every religion, there are certain attributes attributable to the deity, and one must proceed on the basis of those attributes.
Secular courts are not expected to sit in appeal over the validity, legality, propriety or rationality of those attributes.
For example, in the case of Lord Ayyappa, the attribute is that of a Naishtika Brahmachari. Based on that, certain practices have evolved. It would neither be possible nor permissible to examine the attributes of the deity. Every deity, across religions, has particular attributes.
SG Tushar Mehta: Third, comparative intra-fundamental rights conflict. This is my last submission.
Whenever we speak of one fundamental right, it affects more than one individual. For instance, my right to free speech affects my learned friend’s right not to be offended. I cannot say something defamatory.
Similarly, the right of entry into a temple must be tested against the rights of devotees who believe that a particular class of persons should not be permitted entry.
That aspect has never been examined.
It is said that one or a few individuals want to enter. But has the corresponding right under Article 25 of other devotees been examined?
My right under Articles 25 and 26 is that if my religious tenets or beliefs prohibit something, then that will not be done. So even my right as a follower must be considered.
And proportionality… that has not been considered.
Justice Amanullah : Will you also be addressing us on the characteristics of Lord Ayappa?
SG Tushar Mehta: Let me say this, the Sabarimala judgment is, in my respectful submission, incorrect, which I will demonstrate, irrespective of the view Your Lordships may ultimately take on Articles 25 and 26, whether they are read together or separately.
I am in favour of the review. I am saying it is a wrong judgment.
But the reference before this nine-Judge Bench, as I understand it, is to decide the larger judicial policy, how to deal with questions of religious freedom. Therefore, as all of us have understood, the merits of the Sabarimala judgment, and its correctness or otherwise, are not to be gone into here.
Justice BV Nagarathna: What follows from what you have just submitted is this, the original writ petitioners, if we have understood correctly, are not devotees. No devotee has approached this Court challenging this. Then who are the writ petitioners who are assailing this?
Justice BV Nagarathna: Who is the original petitioner?
SG Mehta: The original petitioner is the Indian Young Lawyers Association.
Justice Nagarathna: They are not devotees. But… let us be clear. Can any devotee of Lord Ayyappa file a writ petition challenging this? It is not… If a non-devotee, a person who is not concerned with that temple, challenges it, can this Court entertain such a writ petition?
Justice BV Nagarathna: So, Mr Solicitor, we have all been trained… we have all practised in trial courts. If a suit is filed by an association, the first question would be under Order VII Rule 11 a... no cause of action, no causal connection... the plaint would be rejected.
CJI Kant: I have often used the term invisible victims of the judicial system.
SG Mehta: I call it a fight between silent majority vs vocal minority.
SG Mehta: On PIL jurisdiction, my Lords… Your Lordships rarely sit in a Bench of nine. PIL jurisdiction was initiated in Bandhua Mukti Morcha v. Union of India, at a time when people had no means to approach the Court. I have pointed out in my written submissions that today the judicial system has become far more transparent and accessible. By e-filing, even a letter can reach the Court. Now, no one really needs representation through another for an unrepresented class. National Legal Services Authority is there. District Legal Services Authorities are there.
SG Mehta: If someone has no means, they can approach the District Legal Services Authority and say, my fundamental rights are violated, advise me, or file a petition on my behalf before the Supreme Court or the High Court. Then why, my Lords, should such PILs be entertained? And we know that many PILs today are motivated PILs. Somebody else is behind them.
CJI Kant: The answer is very simple. Nowadays… and “nowadays” does not mean only the last few years… These Courts themselves have been very, very careful in entertaining PILs. We have laid down parameters to test them. Every day, we examine the real cause. There are several factors we now apply while testing a PIL. If you sit in Court No. 1, you would have seen how many PILs we actually entertain. Notices are issued only when there is substance. Perhaps from 2006 to now, 2026… over these two decades, the situation has evolved, and the Court has become more cautious. The point is this, on a general principle of PIL, we may not even need to hear you. We agree with you that the Court has to be very cautious in entertaining PILs today, particularly when people come with different kinds of agendas.
Bench to resume hearing tomorrow.