Singhvi: There could be cases where individuals excercise of right under Article 25(1) conflicts with articles 14 and 19. The phrase subject to has to be given importance to. But attempt has to harmonise

Justice Bagchi: We also have to give some meaning to the word "subject to"

Singhvi: Irreconcilable conflict

Justice Bagchi: Article 25 is subject to gradient difference.

Justice Sundresh: we are on person and their beliefs. Article 26 operates on a different field. It is like some executant of some will.. if a religious denomination acts against the belief.. what is important is that it is about beliefs of people concerned.

Singhvi: Individuality of article 25 forms the collectivity of article 26 Harmony means enough weight has to be given to both.

Singhvi: Having entered, then everything, how puja will be done, who will stand in line first, I will stand last, then I will go to the sanctum sanctorum also. When I have entered, I have an Article 25(2)(b) right, therefore I will take that right into the sanctum sanctorum. That, versus Article 26(b), will stop, depending on the denomination.

One more example we can take. After all persons enter, there cannot be discrimination when it comes to serving food, that only people of a particular caste should sit in one room, other caste people should sit in another room. That is also forbidden within Article 25(2)(b). There can be reform on that. There are a lot of things to be covered by Articles 14, 15 and 16 also, other provisions of this Part.

Now, it may raise some difficult questions. For example, where a denomination says, I am giving you an extreme example, that having entered, which we cannot stop, our denominational rules require all others to stand in a separate part altogether, about 100 yards away, and not come anywhere near. That will not be justifiable under Article 26(b). They will claim Article 26(b), but I do not think that works.

Sr Adv Singhvi: My submission, as blunt and as specific as possible, is this.

One, Article 25(2)(b) has to be limited to throwing open of Hindu religious institutions of a public character.

Two, therefore the word entry has to be governed by Article 25(2)(b). All forms of entry, main gates, compounds, access, no doubt about it, to the exclusion of Article 26. It is a specific derogation. Access must be covered.

After you enter, Article 26 will take over for almost everything. After you enter, now I have entered, I am this class or that class, I am not allowed to enter, law is there, no question, you cannot keep me out under Article 25(2)(b).

After I have entered, I say I have a right equally, having entered, to do worship in a particular way in the sanctum sanctorum. Why not, because I have access, I have come inside. Article 26 will take over. If the collective belief of that religion or denomination does not permit anybody except him to do worship in the sanctum, then I cannot insist. Some do, some do not, it varies.

Then there is a third angle to this. All that I have said here will not apply to a truly private temple. That is a term of art. Private temples actually are very few. They have to be genuinely private. There are a lot of so-called private temples that become so famous by customs, usage over the years, and the footfalls and the veneration, that they are actually public temples. In a public temple, all these principles apply.

However, obviously, if it is in a home, a private temple or somebody’s own domestic arrangement, this will not apply. Neither Article 25(2)(a) nor Article 25(2)(b) can be invoked.

Singhvi: Now fraternity, though a word in the Preamble, is the least used, least applied and least spoken about.

Justice Nagarathna: Least understood

Sr Adv Singhvi: I would say that this concept of religion must in some way cross-fertilise with fraternity. Without that, this does not work. Actually, the most important part of the Preamble, which works for Articles 25 and 26, is this word.

Sr Adv AM Singhvi: Somebody’s practices and beliefs of a religious community must be judged by courts purely applying a subjective test, not an external objective test. Courts cannot and should not rewrite the practices and tenets of a religion or rationalise it. That is, of course, Justice Bhagwati in the dissenting view in Sabarimala, now under review.

Factually established religion and religious practices ought not to be subject to judicial interpretation. That is the Ram Janmabhoomi judgment. These principles harmonise and effectuate the primacy given to fraternity as one word of our Constitution which has received the least attention.

There is one word that has become bigger than all other words of the Preamble without being in the Preamble, that is federal. I googled the Constitution. There is no word federalism or federal in the entire Constitution. Federal comes only for the Federal Court. So your Lordships have to be part of the basic structure. A word that does not occur in the Constitution. That is the greatness of our evolving jurisprudence. Federalism is part of the basic structure from Kesavananda and from Bommai. It is not found in the constitutional text, not a word. It is the longest Constitution of the world at that time.

Sr Adv Singhvi: is limited if Courts review minimally and so self-denying that even an absurd practice proclaimed by religion, eating only elephant meat or eating only human meat, should be non-reviewable because it is part of the bona fide belief of a person who claims to be an adherent of the religion. I had this argument put to me that why are you arguing this, you have to look at essentiality because otherwise you could have these kinds of absurd things. So I am answering that. This seemingly extreme proposition does not in any manner derogate from what has been stated by me till now.

Firstly, if the belief, an extreme one in the above example, does not form part of the collective, institutional and denominational belief of a group or sect belonging to a religion, it will be rejected, not because of an objective external standard, but because it does not constitute religion at all. Since it does not exist in the collective of a group, but is asserted only by a few maverick and eccentric individuals who claim to be adherents of a religion. That is one way of dealing with it.

Second, alternatively, in any case, it would be hit by your Lordships’ textual derogations available. That is part of the framework and the balance. However, notwithstanding the above, if there is in fact hypothetically a religion whose collectivity genuinely believes in and can trace back its lineage to the factual, genuine existence of such practices, then the Court, having found that such a religion does in fact exist, cannot stigmatise such practices on personal or subjective judicial notions of abhorrent behaviour or imposed external societal norms, except under those three words in Article 25. That goes without saying. They would, however, be fully entitled to examine whether such practices fall under those three standards. Conversely, if we now take an example of what might well be an abhorrent practice by normal, average and external standards, but is genuinely believed to be a core part of an unknown and established religion, then the application of Article 25 in its full plenitude becomes clear. Now, I am not giving an example because I am a Jain, but this is a very good example. In any form of obscenity and morality, you cannot be allowed to roam naked. Digambar Jains, even today at big functions, the actual sadhu will come completely naked. There are a large number of women at that function who are actually doing the principal honours. I myself have been at this function.

Now, Digambar Jain, by that set of standards, should be abolished. It is a very good example for the extreme proposition. Because nudity in all other forms is proscribed. But it is nobody’s case that Mahavira, who was the elder contemporary of Buddha in the 6th century BC, and who was the 24th Tirthankara, that religion which then branched out to Shvetambara and so many other traditions, will be abolished because of some external standard which will not find a warrant.

Justice Nagarathna : Therefore, it is not Constitutional morality, but public morality.

Justice Nagarathna: Ultimately, under Article 25(2)(a), religious practice is not to be touched. You can regulate anything, but not a religious practice.

Singhvi: But the court cannot say this practice is wasteful, etc., at all. Not the court's domain.

Sr Adv Singhvi: Nine judges ought to be careful with the language of line drawing because that binds us all. And that will also bind Shirur Mutt; it will also bind Dargah. That classification will happen in all these nuanced examples.

For example, I would say that the intention to carry pilgrims to a place of high religious significance may also be religious. But how you purchase the bus, you do all kinds of accounting, if malpractice is there, or you overdo it, you take the bus, the bus is given as a facility to start taking people to Sabarimala where you are supposed to walk barefoot, those are matters of regulation. Your Lordships understand those distinctions.

AM Singhvi: Firstly, the distinction has to be religious versus non religious. Secular is an acceptable word, but religious versus non-religious is a better word. That is my point one. I am being as clear as possible. Your Lordships may note my submission in whatever form.

Second, that test, I have already said, has to be subjective, not objective.

Third, in either event, please eschew and eradicate the essentiality or integral test, which has caused some confusion in the case law, and a nine-judge bench has purified that.

Fourth, in the very close-knit examples given by my learned friend, ultimately it has to be a case-by-case decision. There can be no general answer.

Fifth, there is, however, a general answer in the flavour of every case. For example, ghee. Should I purchase it, which quality ghee will please the deity, whether the deity can have anything? These will remain within Devaru and the several other judgments on religious practices. However, in the purchase of ghee, if you are clearly going to the highest seller, one person is selling at ten rupees, the same ghee is selling at two rupees, and you are pocketing the difference, and the State makes a law to audit those accounts, that is not a ghee question. That is an accounting question. It must be secular. It must be regulatable. Now, in most cases, according to me, your Lordships’ judicial talents are able to sift the chaff from the grain. But there is no general answer.

Justice Bagchi: You see that example in Shirur Mutt, that I have to purchase wheat, I have to purchase, let us say, sugar, to make offerings to God. So making offerings to God is definitely a religious act. But in what manner do I make this purchase? Whether it will be religious or not. Shirur Mutt connects it to religion.

Singhvi: That is the unfortunate headache which the law has to face sometimes, in that very narrow number of cases where it is inexplicably intertwined, as my Lord was just about to put it, between secular and religious.

Justice Bagchi: Clarify on this. A certain activity, which is religious, is completely covered by Article 25, but when an activity has both a flavour of religious practice and also a secular aspect, how will the Court define that activity? Will it fall in the religious category or will it fall in the non-religious category? Will it jointly see the word essential from that angle?

Sr Adv AM Singhvi: The premise is, the premise, the false premise according to me, is that yes, this is religion, but now I, the Court, will see whether there is anything essential in this religion or not, and whether this is an essential part of the religion or not. That becomes a walk down a path that is full of problems. Whether it is religious or non-religious, or as your Lordships put it, religious or secular, is an inquiry. But that inquiry is also limited by looking through the prism of the religious adherent, not through the objective prism of a judge. That is the way Shirur Mutt put it.

Justice Nagarathna: One other way of saying this is, anything which does not come within the scope of Article 25(2)(b) has to be protected.

Justice Nagarathna: So, from the point of view of Article 25(2)(a), a secular activity which can be regulated by the State, for that essential religious practice test must be discarded, that is your submission

Singhvi: According to me, it is slightly loose language used in Dargah committee judgment, which was picked up and taken as it occurred.

Let me explain the very first thing. What they mean everywhere, possibly in Dargah, is that we are entitled to decide whether it is religion or not. We are entitled to decide whether it is religion or not. As I said, I profess a practice to have teleological approaches. Can it be that you will not accept it just because I tell you it is part of my religion? Is this religion called X supportive of this. That is a logical inquiry. That was perhaps by loose language or whatever described as, is it an essential part of religion. So the test is, yes, by a subjective belief test, you must examine whether it is part of religion or not. So anybody can say anything outlandish.

Justice Nagarathna: For what purpose was the essential religious practices test was propounded by the Court to mean that only that is protected and nothing else?

Singhvi: I am not putting that word, but specifically, I add that word. Relationship between man and God. Except that when you go into these special areas of Hinduism, whether Charvaka followers would also be considered Article 25 religious adherents is a question that need not be defined. Because, according to Charvaka followers, atheists would also be following religion. So, in that way, the man-and-God formulation may not apply. Otherwise, the logic is right to apply it everywhere else.

Justice Nagarathna: Commonality in practices and beliefs may be there, but with regard to what? It is about the relationship between man and God.

Sr Adv AM Singhvi: This is about religion here.

Singhvi: Religion, though incapable of precise definition, must involve a cohesive commonality of beliefs and practices for a community. Their beliefs, practices and customs can be reviewed, if at all, where absolutely necessary, only by applying the subjective test of the beliefs of the community itself and only to the extent as to whether the belief or practice is in fact a part of the religion. So if you say that, look, this is something outlandish, that cannibalism is a part of my religion, let us examine it. But not otherwise apply objective tests. It cannot be reviewed or tested by external, supposedly objective tests imposed by society or judges in an adjudicatory matrix. A large volume of rituals, ceremonies, practices and other seemingly procedural practices would nevertheless be entitled to the full protection of Article 25, so long as they are held to be part of the religion concerned. Article 25 protects the common beliefs and practices of a community.

Sr Adv Singhvi: It can be said that this place only Hindus can come. This place only Muslims can come. It is only like that. That is not violative of Article 16(1) and 16(2). Consequently, Article 16(5) is intended to be an exception to Article 16(2) and other parts, inasmuch as such religious or denominational institutions can restrict, by virtue of Article 16(5), appointments to offices or governing bodies.

Article 16(5), however, does not immunise, this is my submission, from the charge of discrimination those appointments on other discriminatory standards of race, caste, sex, descent, place of birth, provided such persons are of the same religion and denomination as the institution. So suppose only Hindus are allowed, but then the institution says only Hindus from the north will come, not from the south. Only Hindus who belong to a particular denomination will come. That you cannot do. Religion is immunised, not the others. At a social level, you cannot be so discriminatory.

CJI: so there can be discrimination within denomination or within the same sect?

Singhvi: I would respectfully give a nuance to what Mr Vaidyanathan argued, a little differently. Now, this will be required for, again, kindly go to that. Seshammal is significant for the discussion of the principle that despite numerous rituals and ceremonies of the Hindu religion, which may have little nexus with objective third-party reality, rationality and objectivity, they cannot be dismissed on that basis. That is the ratio of Seshammal.

Now, Mr Vaidyanathan said that Article 16(5) was not looked at, and therefore Seshammal would have been overruled. He cited Article 16(5). This is a short digression on that, in my submission.

I want to harmonise Seshammal with Article 16 and Article 16(5). Yes, kindly hand over it. This is the divergence that happened in three or four places only because it is necessary. So I am taking a little different view. I am suggesting that Seshammal can be harmonised with Article 16(5) and the rest of Article 16.

Senior Advocate Abhishek Manu Singhvi: First, religion is a set of beliefs and practices followed by a group, sect, or denomination with a broadly similar identity. While Article 25 clearly vests in an individual the right to profess, practise and propagate religion, such individual rights cannot be allowed to extend into an area which encroaches upon the mass of individual rights of all other adherents of that religion or denomination. This is just a summary. I will be elaborating these submissions in a moment.

Second, the beliefs and practices of the community are to be judged by the specific beliefs of the community. The court is bound to accept the belief of the community, provided it is genuine and exists, is not fanciful, nor imaginary. It is not for the court to sit in judgment on that belief.

Third, it is impermissible to add, modify or subtract from the specific constitutional text. Accordingly, the additional derogation, or so-called derogation, of essentiality as engrafted by some judgments is entirely impermissible. This will be dealt with, but I will only deal with that part of my note which has not been dealt with. Those cases have not been dealt with. I will not repeat those.

Fourth, the permissible restrictions or derogations for the right to practise, profess and propagate religion found in Article 25 were arrived at after detailed and meticulous deliberations in the Assembly. Any other explicit or implied dilution of the right by interposition of other judicial restrictions would break down the delicate and intricate system of checks and balances envisioned by the framers.

Last, the rights of persons under Article 25 are to be read harmoniously with the phrase “other provisions of this Part”. So one cannot lead to the vanishing point of the other. That is going to be my submission.

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.

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.

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.