The hearing before the Supreme Court in the Sabarimala reference case on Thursday saw divergent views from the Bench on whether pre-constitutional religious customs are protected by Article 25(2) of the Constitution of India.

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 case.

The matter is connected to the Supreme Court's 2018 verdict allowing women of all ages to enter the Sabarimala temple in Kerala, which overturned a custom restricting the entry of women of menstruating age to the hilltop shrine.

In November 2019, the Supreme Court pronounced its judgment on the review petitions against the 2018 verdict but did not decide the matter one way or the other. Rather, the Court framed seven larger questions touching about religious freedoms in India for consideration, which is now being heard by a nine-judge Bench.

The reference verdict may also have an impact on other cases involving faith-based customs in other religious communities.

During today's hearing, Senior Advocate Arvind Datar appeared for certain parties who are opposing the entry of women of menstruating ages to the Sabarimala temple.

He argued that the Constitution itself acknowledges that certain religious customs may violate general anti-discrimination provisions, but the same were expressly saved.

In this regard, he observed that Article 25(2) states,

"Nothing in this Article shall affect the operation of any existing law."

'Existing law' mentioned in this Article includes customs and usages, Datar argued.

Justice Nagarathna, however, pointed out that Article 366 (10) also has a definition of 'existing laws', which does not include customs and usages.

Datar replied that the term 'law' under Article 13 (3) includes customs and usages.

Justice Nagarathna then highlighted that the term used in Article 25 (2) is 'existing law', not 'law'.

Justice Bagchi weighed in by noting that the intent of Article 25 (2) may have been to preserve pre-constitutional reform legislation on religious matters such as those prohibiting the practice of Sati.

"'Law' in Article 25 (2), in my humble submission, must be read as defined in Article 13 (3)," Datar replied.

Justice MM Sundresh, however, also expressed reservations over such a view that existing customs are preserved in Article 25.

"On the face of it, customs will not come under this (the term 'existing law' in Article 25(2)) because it is meant to restrict or limit rights under Article 25(1)," he said.

"Existing law is that which is made by an authority, not custom. See the definition under Article 366 (10)," Justice Nagarathna added.

"The word 'law' in Article 25 (2) must be understood as defined in Article 13(3), as it says 'for this part'. My submission is, the law will include customs. If the exclusion of women in a particular temple, if certain practices were prevalent, they are all protected. They don't ipso facto become invalid," Datar maintained.

"We note it down, but we find it difficult to accept," Justice Sundresh said.

Chief Justice Kant, however, said that he finds some force in Datar's stance.

"What is the ultimate argument, Mr. Datar? I am personally inclined (to accept the argument), that what you are saying is correct statement of law, but let us proceed," CJI Kant said.

Datar also supported arguments that the concept of 'constitutional morality' cannot restrict religious rights.

"The founding fathers would never have contemplated the 'morality' (in Articles 25, 26) to be 'constitutional morality' (going by Constituent Assembly debates)," he said.

The hearing will continue on April 28.

"Constitutional morality was never meant to restrict religious rights"

Senior Advocate Neeraj Kishan Kaul represented the head of the Dawoodi Bohra community.

He argued that the right of religious denominations to manage its own religious affairs under Article 26(b) cannot be viewed as subject to Article 25, except in the limited scenario of throwing open Hindu religious institutions to all classes of Hindus [Article 25(2)(b)].

"In all matters of religion, ordinarily Article 26(b) will have full play, except in the limited context of entry into temples," Kaul argued.

He added that the principle of "constitutional morality" was never meant to restrict religious rights.

"If constitutional morality is read into 'morality' (under Article 25), then we are bringing in a lot more than what was envisaged," he argued.

He further submitted that Articles 25 and 26 already provide for measures to tackle practices that are social evils, since it provides that religious freedoms are subject to public order, morality and health.

"Which abhorrent social evil will not be covered within these limitations?" he asked.

"Lord Ayyappa being derided"

Senior Advocate K Radhakrishnan appeared for the Pandalam royal family, which had set up a temple dedicated to Lord Ayappa (the deity at Sabarimala temple).

He raised concerns that those who sought the entry of all women to the Sabarimala temple have made scandalous comments against Lord Ayyappa.

"They are practically non-believers. (In their petition) all sort of denigrations, deriding remarks (were made) about Lord Ayyappa. Scurrilous remarks...Being a devotee myself, our sentiments are also wounded by the non-action by the government (against such comments)," he said.

"Religious rights can't be viewed from non-believer's standpoint"

Senior Advocate Jayant Muthuraj represented female devotees of Lord Ayyappa who support the customary restrictions on women's entry at the Sabarimala temple.

He asserted that courts should not interfere with a religious denomination's beliefs.

"When such matters come before a court, how is one to define a denomination?" Justice Bagchi asked.

Muthuraj replied that if a practice is found to be religious, then the inquiry should stop there. Hinduism is immensely diverse and its practices vary widely. Such practices must be understood within their own context, he asserted.

Religious practices must be tested from the standpoint of the believer of the religious group, not against a uniform standard of the religion as a whole or from the viewpoint of a non-believer, he added.

"If I accept Darwin's theory, the evolution theory of Darwin - every religious belief will become irrational, superstitious. That is not a test. A non-believer cannot test our belief. It is my belief, it is my right," he contended.

"State intervention in religion politicises it"

Senior Advocate Krishnan Venugopal represented certain Jain organisations.

"State intervention in religion has actually resulted in the introduction of politics into religion, which corrupts both the State and the religion. State intervenion is not necessarily the panacea for all ills in a religion; it can come from within the religion itself," he argued.

He also argued that the "essential religious practices test" has no textual foundation in Article 25(2)(a) - which permits government regulation of economic, financial, political, or other secular activities associated with religious practice.

He went on to express that the courts should not be engaging in ecclesiastical jurisdiction, which has arisen after the essential religious practices test came to be evolved.

"Article 26 not subject to Article 25's restrictions"

Senior Advocate S Guru Krishnakumar questioned the view that a religious denomination's rights to manage its own affairs under Article 26 is subject to restrictions to the freedom of religion under Article 25.

"Restriction found in one fundamental right cannot be read as a restriction on another fundamental right," he contended.

He went on to argue that access restrictions claimed by a religious denomination in the exercise of Article 26 rights must be viewed as inherent parts of the religious denomination's faith.

"The correct approach is not to view these as restrictions, but as prescriptions flowing from the tenets or doctrine of that denomination. The entire discussion has proceeded through the prism of restrictions, whereas it should be understood as prescriptions inherent to the faith," he said.

He added that Article 26 rights are distinct from Article 25 rights.

"If Article 26 is merely an extension of Article 25, there would have been no occassion for the Constitution makers to separately provide for them," he argued.

"State's incursion into religion must not result in excessive government entanglement"

Senior Advocate Shyam Divan appeared from some intervenors from the Jain, Hindu and Christian faiths.

"State incursions into the right to freedom of religion is only permissible only for stated constitutional purposes that are essentially secular in character (public order, morality, health). The incursion cannot result in excessive government entanglement, which fails the test of proportionality. Denominational autonomy is sacrosanct and ought to be preserved by and protected by this court," he urged.

Muslim women free to enter mosques but not compulsory: AIMPB

Notably, one of the issues on which the reference case may have an impact concerns the entry of women in mosques.

Senior Advocate MR Shamshad appeared for the All India Muslim Personal Board and recalled that a petition was filed seeking directions so that women are allowed to stand in the first row at mosques during namaz.

He contended that such prayers are irrelevant since it pre-supposes that mosques have a "sanctum sanctorum" (most sacred area of a religious place).

He clarified that women are free to go to the mosque but that it is not compulsory for them.

While men are required to go to the mosque and offer namaz in congregation, women are free to also offer namaz at home and get the same religious reward, he said.

"They (women) can enter into mosque, but there are certain discipline to be followed. Prophet Muhammad himself said, don't stop women from coming to the mosque. But at the same time, there is consensus across denominations that it is not essential for women to be part of congregation to offer namaz. A woman is free, preferably at home, to offer namaz," he told the Court.

"Give the reason also. The reason was, if everybody goes from the house, who looks after the children?" Justice Amanullah added.

Shamshad joined other petitioners in urging for restraint when it comes to judicial interference in religious practices. He questioned the view in Ismail Faruqui Etc, Mohd. v. Union Of India, which had held that a mosque is not essential to the religion of Islam.

"Issue was not there whether masjid was essential or not. When the majority judgement came, it said that since namaz can also be offered in open, masjid is non essential. This parameter is completely wrong. It has been applied in so many judgements...Masjid is the core of the belief of Muslims. All practices are ultimately relatable to mosque. But when we face (a proposition that) masjid is not essential, then what will we do with Article 25?" Shamshad asked.

"It’s as good as saying temple is not essential. Who is the court to decide that?" Justice Nagarathna asked.

"Exactly. That is the point," Shamshad replied.

[Live Coverage]