CJI Surya Kant: Article 25(1) is your real hallmark. If you are confined, you are seeking liberty. You are claiming freedom. To understand Article 25(1), is it a fundamental right to enter a temple, or does it represent a right which already existed as of 25th January 1950? That is why existing laws are saved. If you are able to show that Article 25(1) confers a fundamental right, that is one position. But if it is only a recognition of an existing right, then the situation may be different.

Senior Advocate Indira Jaising: That is my submission. I get my freedom from Article 25(1). The limitations are those that are written there.

Senior Advocate Indira Jaising: In addition to that, a Hindu has a right to enter a Hindu temple, a Hindu as defined by law. For the moment, I am not going into whether a non-Hindu can enter. Let me confine it to Hindus.

Justice Ahsanuddin Amanullah: The basic question is also about lifting the veil of intent. Suppose you say you are a true believer, but you go to a place and violate the general predominant sentiments. Is it the role of a true believer that I will go there and act in my own way. Is that belief. Do general practices also require us to look at the intent behind such conduct. Our questions are only to understand this, so that you can proceed further.

Justice B. V. Nagarathna: Let us say, for example, we take the temples of Kashi. Suppose it is said that anybody from South India is not permitted entry into any temple in Kashi. A Hindu temple, and a Hindu is trying to enter. In such a situation, can that not be addressed?

Suppose either Parliament or the State of Uttar Pradesh makes a law that temple entry is open. Can such a denominational restriction be set aside in that manner.

Jaising: Article 25(2)(b) does not create a right in anybody with regard to temple entry. It is an endowment of power. It immunises a law which is made. I am not saying it creates a right under Article 25(2)(b).

Senior Advocate Indira Jaising: There is a distinction between mandatory and advisory, between void and voidable. That exists in every system of law. It exists in Islam, in Hinduism, in the Constitution. Courts have often held that certain provisions are not mandatory but only advisory. So the distinction exists....I do not want confusion on this issue. Whatever test you apply, you may apply. But it is incorrect to suggest that the Court is deciding what is essential. The religion itself determines what is essential. That test is then used for harmonisation. If you still wish to do away with the test, that is a different matter.

SC: To what extent do you want the Court to examine essentiality. What is your position? Do you want the Court to go into the religiosity or essentiality of a practice.

Senior Advocate Indira Jaising: I am only saying this much. Theology is a matter of fact, because it is written. It is found in the Quran, the Hadith, the Vedas, the Puranas, the Agamas. What constitutes religion is a question of fact. That is my submission. At the end of the day, this is a civil right. It has been elevated to the level of a constitutional right by the Constitution. It existed even before the Constitution. It is inherent in being human. The Constitution recognises it but also places limitations.

Senior Advocate Indira Jaising: It is not a civil court or a constitutional court which is deciding what is essential and non-essential. All religions have that test internally. Every religion has that distinction within itself.. One example is a judgment of this Court in the Sabarimala matter, where the question arose whether a particular practice was an essential religious practice. How was that decided? Not because the Court thinks it is not essential, but because the religion itself does not treat it as essential. ..i am not saying that the Court decides what is essential.

I am saying that the religion itself determines what is essential and what is not. Even in Hinduism, there are dictates which are mandatory and others which are advisory. Every normative system of law makes this distinction.

Justice Nagarathna: It has been argued that religion cannot be hollowed out in the name of social reform

Justice Sundresh: If you remove essentiality, and keep only social reform it will help then

Justice BV Nagarathna: We cannot ignore the civilisational and religious history of this land and it is in this background that article 25 and 26 has come now. Living constitution and all is fine...Let us not forget the past. Past makes the present. You cannot ignore the past and say that it is a clean slate etc.. and that there is a vaccum etc.

Jaising: We can have a debate. It is a clean slate.

Senior Advocate Indira Jaising: One aspect is conscience, which is between you and yourself. You need not go to a temple at all if you do not wish to. It does not mean you are irreligious or not a Hindu. But if you wish to go, then that right is protected under Article 25(1). That is my submission. This right has always been a civil right. It is a right in rem. There is no magic about it. It is a civil right. What is the meaning of a right in rem. A right in rem determines my status. Just as marriage determines my status, if I say I am a Hindu, it determines my status in law. If I say I am a Muslim, it determines my status in law. Then the question becomes, if this is the nature of my right, what prevents you from saying that this status right of mine cannot be violated by another person who is also claiming a right under Article 25.

Senior Advocate Indira Jaising: If we agree that Article 25(2) controls Article 25(1), what prevents me from entering a temple as a woman. That has been said. Mr. Gopal Subramaniam also said it. I have been enlightened by hearing many submissions, but the logical conclusion is not being reached. Why are we playing hide and seek with the scope. ..: My role is to indicate what, according to me, is the clarity on the questions to be decided. The decision is a different issue. For that, the key is understanding what exactly is the right to religion and what is the content of that right.

Senior Advocate Indira Jaising: I was a bit taken aback when I heard suggestions agreeing with the proposition that Article 25(2) overrides Article 26(b). Submissions were made on the other side, but no reason was given. Why does it override Article 26(b). Submissions have been made in harsh sentences, but the logical conclusion has not been reached.

Senior Advocate Indira Jaising: The right of temple entry in a public temple is a fundamental right guaranteed by Article 25(1) of the Constitution. No, that right is guaranteed to me by the Constitution itself. Now, it is Article 25(2). In fact, in Devaru, if I am not mistaken, this Court has said that Article 25(2) controls Article 25(1) and Article 26(b), both. It is not as if Article 25(1) is not controlled. It is also controlled by Article 25(2). For want of a better expression, I will call Article 25(2) the hero of these two rights, because it controls both. It controls Article 25(1) and it controls Article 26(b).

Senior Advocate Indira Jaising: How do you decide religion? It is written down. You have the Quran. Are you going to say that is not religion? You cannot. The Shastras tell you what religion is. That is what is relied upon...let me take one specific question. Christians were asked how you distinguish conscience from practice. This is also relevant.

Senior Advocate Indira Jaising: What is the question that you are deciding first. I would like Your Lordships to decide what you are going to decide in these proceedings and how you are going to decide it...I understand that discretion not to entertain a particular petition is different from lack of jurisdiction. What has been said is that you cannot decide questions of religion because you are not theologians. If you are not theologians, you can call a theologian to advise you, because what constitutes religion is a question of fact. It is not always a mixed question of fact and law.

Justice Joymalya Bagchi: See Devaru makes a proportional impact that the fundamental religious identity or integral identity of a religion is not being eroded, and at the same time, there is an assertion of rights under Article 19, 21 or 14. In such a situation, although we are not deciding Sabarimala finally, let us take an example of this nature. Where Article 26 definitely trumps Article 25, it would still be required for the Court to examine whether Article 26 is of such an exclusionary nature that it completely dims Articles 14, 19 or 21. We need not go to a constitutional test to see how a denomination will manage its affairs.

Justice Nagarathna: But we have to see who is seeking the entry at all? Someone in North India is trying to get the entry. Are they devotees at all. We have to see this..

Jaising: This litigation is a surrogate litigation to achieve something which is not being able to be achieved directly

Senior Advocate Indira Jaising: Still, I will have to raise it before you, whether in this case or in another. I am only sounding a note of caution, nothing more. Whatever you say in this case is going to decide not only the cases before you, but also cases which are not before you... The anti-conversion law is presently pending before a Bench of three judges. It is being heard on a daily basis and will conclude the issue. There are many issues that you cannot anticipate, which may be covered by your pronouncement. That is why I am sounding this note of caution. We need not pre-empt all those issues.... I will address you on the merits. I have to make good the submissions with which I have begun my opening.

Senior Advocate Indira Jaising: I want to make the point that she went there because her conscience told her to. It is an emotional issue, but that is the fact ...just to lighten the mood, Mr. Abhishek Singhvi was sitting next to me and said he would give me an award for not interfering with anybody’s arguments. I said I did not interfere despite grave provocation. Once this hearing is over, I will claim my token....the facts that I am placing before this Court are significant.

Senior Advocate Indira Jaising: Let me proceed further. After the judgment was declared, these two women went for what may be called darshan, or worship, in English. They went to the temple. When they came out, certain Sangh leaders spoke of “shuddhi karan.” I filed a petition in this Court. This was when the judgment was in full force and effect. These were the only two women who succeeded in climbing up and performing darshan. No one else has succeeded since then. Why. Because the State has not cooperated. They refused to give protection for going up....I filed a petition in this Court in which I placed all the facts on record, including who they are, whether they are devotees, and which State they are from.

Are they devotees? : Justice Nagarathna

Jaising: They are from Kerala. Both are Hindus. One is Bindu, the other is Kanaka Durga.

Justice Nagarathna:Did they go to the temple prior to the judgment. Are they devotees or not?

Senior Advocate Indira Jaising: Let me state the facts before I answer that. As far as Bindu is concerned, her mother has taken her to the temple. That is her statement in her petition filed in this Court. When she was about 11 years old, she had already been there. After that, the judgment came. After the judgment, she succeeded in going there only once. Not twice, not thrice. She was mobbed for having gone there.... As far as Kanaka Durga is concerned, she had difficulties with her family. Her family came down heavily on her for going. But in the first instance, she was allowed by her family to go according to her conscience. After that, she has not succeeded in going there. In fact, she has had to move out of Kerala. At present, she cannot live in Kerala. At one stage, she told me she was considering moving out of the country. I advised her not to do so and to come to Delhi instead. She is also a lawyer.

Senior Advocate Indira Jaising: Shirur Mutt says you cannot substantially abridge a person’s rights under Article 25(1). Is this substantial or not? That is the first question. Second, in the process of harmonisation, it has been held that you cannot substantially injure a person’s rights under Article 25(1). Is this a substantial injury or not....: My next submission is that any violation of equality is a substantial deprivation of the right under Article 25(1). Any denial of equality is a substantial injury within the meaning of Article 25(1).

SC: You are not prevented because you are a Scheduled Caste woman, but because you belong to the 10 to 50 age group.

Senior Advocate Indira Jaising: Yes, I will answer that at the appropriate stage. I am aware of that...My answer is that this exclusion operates during the most productive and creative period of a woman’s life, that is, between 10 and 50. What is the status of a woman during this period. Is it not the period which is most creative and most fertile? Never mind menstruation, I will come to that later. You cannot tell me to live half a life. Avoid living between 10 and 50, and then live before 10 and after 50. That will lead to substantial deprivation within the meaning of Shirur Mutt.

Senior Advocate Indira Jaising: Who am I representing? I am representing two women. One of them is a Scheduled Caste woman. So I will ask the question, when you keep a Scheduled Caste woman out of visiting the temple, are you violating Article 17 or not? She is a Hindu and a Scheduled Caste woman. So I will ask this question. Is the abolition of untouchability only for men, or does it include all persons? Today we are told that non-caste Hindus can enter Sabarimala, but not women. That is the proposition before you. We are not being allowed to enter. All men can enter, with no caste restrictions. Why. Because of Article 17. That is why they can enter. But I happen to be a Scheduled Caste woman.

Senior Advocate Indira Jaising: Having said this, what I want to point out is who I am representing. After the Sabarimala judgment was delivered, and you will note one fact, this Court has not stayed the Sabarimala judgment till today. Please make a note of that. It remains in full force and effect. Whether and when the review petitions are heard is a different question, but it has not been overruled as of now.

Senior Advocate Indira Jaising: This Court will not recognise any practice or any custom, anywhere, whether in a denomination or otherwise, under Articles 25 or 26, which violates any of the provisions of Article 15. Practices falling within the prohibited categories are not entitled to recognition by a court of law. That is going to be my submission, and I will develop it. I believe that will answer all the six questions. Of course, the question of locus standi remains to be addressed, which I will deal with.

Senior Advocate Indira Jaising: Secondly, I do wish to confine my arguments to the right which is claimed by the people I represent. The reason being that it is a little difficult to answer abstract questions. It is best to answer them in the context of a right which is being claimed. Therefore, I will confine my submissions only to the right of temple entry.

Senior Advocate Indira Jaising: Let me straight away indicate how I propose to proceed with my arguments before I actually make them.

The first argument I wish to make is, how does one read a constitutional text. We are not reading a statute; we are reading a constitutional text. What has this Court said about that? What is the law declared by this Court on the manner of reading a constitutional text, which I will submit is substantially different from how you read a statute? A statute may be read in a semantic manner, but not a constitutional text. I will give my reasons for that.

Senior Advocate Indira Jaising: I will keep them aside for a moment. I intend to do two or three things. I will not necessarily address all the arguments on the other side, but only those that are relevant to my propositions. Apart from that, I am ready and willing to answer any questions that might fall from this Court.

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 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.

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 challenging the 2018 verdict. 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.

The nine-judge Bench is now considering the same.

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 a non-Parsis, the practice of female genital mutilation and excommunication practices in the Dawoodi Bohra community.

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

During 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. 

Yesterday's hearing of the matter saw the Court warn against making arguments that could project any one religion or Indian language as superior to others.

Track this page for live updates from the hearing today.