Senior Advocate Sanjay Hegde: What happens when people come together collectively? Persons who worship together in the same manner may form a denomination.

There are people, like Dr Dhavan, who are Arya Samajis. Arya Samaj itself emerged from a rationalist impulse. When Mool Shankar of Gujarat saw rats eating the prasad placed on a Shivling, he questioned why idols should be worshipped at all. He said we should return to the Vedas and perform only Vedic rites. That is how one denomination came into existence.

But denominational rights are ultimately collective rights. A denomination does not necessarily have to be a juristic entity. No greater right is conferred upon it beyond what is collectively possessed by the individuals who constitute it.

That is why Article 25 itself says that the right is subject to the other provisions of Part III. Individuals then come together, congregate and form a denomination. What additional rights do they obtain? The right to establish and maintain institutions for religious purposes, to own and acquire property, to administer such property in accordance with law, and to manage their own affairs in matters of religion.

Now, against whom are these denominational rights asserted? Not merely against the outside world. They may also be asserted against the orthodoxy within one’s own religion.

If I may illustrate, without meaning any disrespect, suppose the orthodox position within a religion is that there is only one God and one Prophet. But a denomination emerges saying yes, there is God and there is the Prophet, but there is also a subsequent prophet. Then that denomination may claim the right to manage its own affairs in matters of religion against the orthodoxy of the parent faith itself.

That, perhaps, is one possible way of understanding denominational rights.

Senior Advocate Sanjay Hegde: Because I stand in the proud tradition of somebody from the region from which both Shirur Mutt and Venkataramana Devaru originated. Mr. Arvind Kumar has a slight smile at that, My Lords. It is from that district.

I also come from the tradition of BN Rau and B Shiva Rao, who helped frame the Constitution.

Speaking from a rationalist perspective, what does rationalism mean? Rationalists are not necessarily atheists. We are people who say that everything, including religion, must pass through the filter of reason.

This rationalist principle is also relevant to the constitutional history and to the history behind these provisions themselves. Because the Constitution was forged in a particular historical moment.

We are a deeply religious and ritualistic country. But our Constitution was written not merely against the backdrop of a struggle against imperialism. It was also forged amidst a social struggle within Indian society itself.

Today, we are almost at the 101st anniversary of where this story truly begins in Kerala, not with Sabarimala, but with the Vaikom Satyagraha of 1925.

At Vaikom, not only were certain people prohibited from entering the temple, even the roads surrounding the temple were inaccessible to the depressed classes and to several other castes.

The satyagraha against this was supported by Mahatma Gandhi. Among those who participated in it was Periyar. And Periyar later went on to say that there is no God.

Senior Advocate Sanjay Hegde: I appear on behalf of the rationalists. The rationalists in this matter are Dr Amitabh Dabholkar and Ms Jagad. They are members of the Maharashtra Andhashraddha Nirmulan Samiti.

Your Lordships may recall that Dr Amitabh Dabholkar’s father, Dr Narendra Dabholkar, was assassinated in 2013. That was followed by the murders of Comrade Pansare, Professor Kalburgi and Gauri Lankesh.

It is our respectful submission that there are several accretions to religion, all claiming religious sanction, which have been exploited and which ought not to receive the protective cover of religion.

Senior Advocate Vijay Hansaria: If Article 26 is treated as part of Article 25(1), then a law made under Article 25(2), which begins with the expression “Nothing in this article shall affect the operation of any existing law or prevent the State from making any law,” would necessarily prevail.

My submission is that the State can make a law which may even trench upon what is otherwise protected under Article 25(1). And if Article 26 is merely a manifestation of Article 25(1), then such a law can also operate notwithstanding Article 26.

A law under Article 25(2) will therefore override protections flowing from Article 25(1) and Article 26. That is my respectful submission.

Such legislation may be enacted either for social welfare and reform or for throwing open Hindu religious institutions of a public character to all sections and classes.

If such a law is challenged on the ground that it violates Article 26, that challenge cannot succeed because Article 26 is controlled by Article 25(2).

SC: Yes, at least some judgments have said that. But there are many denominations within Hinduism. The framers were conscious that various schools of thought and philosophies existed, propagated through mutts and similar institutions. Because there was no better word available, the Constitution used the expression “denomination.”

SC: But do not make it too rigid. Give it flexibility.

Gupta: Certainly, My Lord. We have no difficulty with flexibility. But what we respectfully oppose is equating denomination entirely with religion itself.

Justice Kumar: No, you are right. Use it flexibly, but not as synonymous with the whole religion.

Gupta: Exactly, My Lord. My respectful submission is that these denominations were historically seen as sectarian streams or organised paths distinct to some extent from the mainstream. That is perhaps why constitutional protection was thought necessary.

This is ultimately a concept the Court is still trying to discover and define. It is not easy. Even linguistically, the Constitution in Hindi distinguishes between Dharma for religion and Dharmik Sampradaya for denomination. They are not the same thing.

Before I conclude, three brief points. First, mere bona fide belief cannot by itself create a religious denomination. Second, one must first identify the denomination and only then identify a section thereof. Not the other way around. Third, there can be no non religious denomination under Article 26.

SC: According to you, denomination and sampradaya are effectively the same thing for constitutional purposes.

Gupta: For the purposes of the Constitution, yes. In another context or document, it may mean something else altogether.

Now, if that is the position, then what exists is a group of individuals who are given certain rights.

Take Shirur Mutt. There was never any serious dispute there as to whether it was a religious denomination. Why? Because they were disciples of Madhavacharya, and within that, a subgroup of Shivalli Brahmins. The Court looked at the definition and said this obviously falls within the concept of a denomination.

It was not something requiring extensive adjudication. But later cases did raise difficult questions, and the Court continued with this broad classification.

The sum and substance of the later judgments is that on one side were institutions like mutts, organised around a religious leader, disciples and a body of doctrine, often traceable to texts and teachings. On the other side were general Hindu temples where no particular body of precepts or identifiable sectarian doctrine existed.

Take the Ramakrishna Mission. It is a religious denomination. It was founded by Swami Vivekananda and fellow disciples of Ramakrishna Paramahamsa. Ramakrishna himself was not part of the Mission. He was a priest at a Kali temple. His teachings later became the foundation around which followers organised themselves into a denomination.

Now, one passage illustrates how this tradition historically evolved in India.

Gupta: Essential part of Hindu religion is right to worship an idol. If you exclude them from it you exclude them from practicing religion ...

Justice Nagarathna: In the name of social reform, you cannot breach or violate the freedom granted under Article 25(1).

Gupta: You cannot hollow out religion entirely, but if it needs change and if done somebody cannot use 25(1) against it.

Senior Advocate Gupta: Now, as far as social welfare and reform are concerned, I only wish to make one submission. Why are these concepts located within the constitutional provisions dealing with religion at all? If the issue were merely social, then there would be no reason for it to appear within the articles on religious freedom.

The reason, I respectfully submit, is that many social rules and practices historically came to be sanctified as religious customs. Therefore, if the State wishes to undertake social reform, it may inevitably have to engage with religion itself. That is why the Constitution expressly grants that power to the State.

And this is important: this is not judicial review in the strict sense. This is not about the Court itself deciding matters of reform. It is about the State making that determination through legislation.

The Constitution itself creates a separate compartment for such legislative intervention, thereby making it clear that when the State acts for social welfare and reform under Article 25(2)(b), it is not necessarily trespassing upon protected religious rights.

Justice Aravind Kumar: If something is followed for centuries why do you want to deprive them of it?

Gupta: It was not being followed that is the point.

Gupta: The earlier discussion concerned conflicts either within the same religion or between two religions. But here the conflict is of a different nature. The conflict here is between what constitutes a religious practice and what constitutes a secular activity associated with religion.

That distinction itself is not expressly articulated in constitutional language as “religious practice versus secular activity,” but it emerges from the interpretation of Article 25.

At one point, Your Lordships had asked whether there exists any test to distinguish the two. The only judgment which directly addresses such a test is Ratilal. That judgment says that ultimately common sense will have to be applied.

Now, that may not provide a complete answer, but it is the only guidance available on how one determines whether something is secular or religious.

At that stage, much depends on where the balance is drawn. A person deeply rooted in scriptural traditions may draw the balance more toward the religious side. On the other hand, someone approaching the issue purely from a constitutional perspective may draw the balance more toward secularism.

Therefore, ultimately, this becomes a matter for judicial determination. I am not suggesting that Your Lordships should formulate an exhaustive test. It may well be left to courts to determine on a case to case basis in appropriate matters.

Senior Advocate Jaideep Gupta: For instance, in the Ananda Margi case, namely Acharya Jagdishwaranand, the followers used to take out annual processions in which they performed the Tandav dance. There was no dispute that the Tandav dance formed part of their religious practice.

However, Section 144 notices were issued because there was an apprehension of breach of peace. The notices were challenged on the ground that the followers had a religious right to perform the Tandav dance publicly.

This Court held that while the Tandav dance may indeed form part of their religious practice, it was not essential for the practice to be carried out in public. Therefore, the Section 144 restrictions were upheld.

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. 

On May 6, the Court began hearing arguments against excommunication practices in the Dawoodi Bohra community. 

On May 7, the Court observed that it should be cautious while dealing with challenges to religious practices.

Live updates from the hearing today feature on this page.