Bench to resume post lunch.

Dhavan: The mistake, possibly, in Sabarimala, which will be decided by you all, is that no denominational status was given to the Ayyappa temple.

Justice Nagarathna: But that would mean, for example, in Hinduism, Shaivism, Vaishnavism, Sri Vaishnavism and so on, everything becomes a denomination and gets protection. Are you suggesting that?

Dhavan: What I am saying is that denomination is a misnomer that we have unfortunately adopted. What we really need to protect is the religious institution.

Justice Nagarathna: That means no protection to non-denominational temples.

Dhavan: I am not on that part. They denied denominational status to the Sabarimala institution as it existed, with no direct party. With that, Article 26 disappears. That would mean Article 26 is only for denominational temples.

Justice Nagarathna: But why are you saying that is so?

Dhavan: What I am saying is, if Your Lordships move away from denomination and sect for a moment and look at religious institutions, then they will get broader protection.

Justice Nagarathna: We want to know, is there any religion which exists without having denomination or denominational status and still has protection?

Dhavan: What I am saying is this. If you take a wide view of denomination and include all religious institutions within it, then they will get protection, including rights to manage their affairs and property. If you take it away, then they will get no Article 26 rights.

Dhavan: What denomination and sect have to be given an Indian meaning, not an Irish meaning. I do not like the phrase used of Abrahamic faiths. Abraham, if he ever existed, disappeared a very long time ago. There are also what are called Kitabia faiths, with all kinds of interpretations. My respectful submission is that this must be interpreted as covering all institutions of faith. We cannot be dragged into narrow meanings of denomination or sect. It does not apply in that sense. When you interpret it, you must say all groups, all institutions of the faith, whether it is a tribal faith or a church or a mosque or whatever it may be.

Dhavan: Once you enter the premises, it cannot be said that your right ends and the right of the denomination begins. Your right is to pray, and that has to be adjusted. It is not entry simpliciter. I just put that point and leave it there, because that is a matter of interpretation. There is also the question of choice. It is said that you can go to some other temple. That is not the point. I want to go to this temple. It is the most important temple for me.

The second aspect is, what is my right of entry. Is it merely crossing the perimeter? No. It is a right to worship. That is the right I have. I have the right to go to any part of the temple, possibly not the inner sanctum, as Mr Ranganathan argued. That part may be correct. I went to a temple, I went all the way and then I was stopped at a particular point. That position, as reflected in precedent, may be acceptable.

Dhavan: Now, number three, closer home, which means morality which a civilised society would not countenance. I am moving away from the definition of Justice Nariman, who said it should be abhorrent. I am saying it is a little higher than that. It is not something abhorrent. Let us go far beyond that. Therefore, the morality is that which a civilised society would accept. By that, I do not mean international standards or any foreign notion of civilised society. I mean our civilised society. That would be my understanding of morality.

Dhavan: What do you mean by morality? I prefer the phrase used by Francis Bacon in his Novum Organum, one of the very radical statements. He says morality is not the morality of the marketplace. That puts it much better than popular morality. It is not the morality of the marketplace alone. Why would it be? Everything happens in the marketplace. Popular morality becomes very elastic and we have to be sure as to what we are talking about.

Justice Joymalya Bagchi: If your argument is accepted, then the subordination of the individual with the words "subject to other provisions", as well as the indemnity with regard to the legislative enabling powers of Article 25(2)(b), would be rendered nugatory by the individual professing the same rights through the institution under Article 26(2).

Justice Joymalya Bagchi: Would there, therefore, not be a congruence between freely professing, practising and propagating religion under Article 25(1), and managing religious affairs under Article 26(b)?

Dhavan: The important word is congruence. Congruence cannot take colour from Article 25 without subjecting itself to that Article. Because autonomy requires not subjecting itself to that provision. Not only is it textually missing...

Justice Joymalya Bagchi: Would you agree that managing religious affairs under Article 26(b) is congruent, not in the sense of institutional and individual, but congruent in its activity with the words freely profess, practise and propagate religion, which is the second limb of Article 25(1)? How do you read these?

Dhavan: I would not subject Article 26 to Article 25. You should also ask that question whether a denomination is merely a collection of individuals. The reason I say this is that managing religious affairs is the external expression of religious beliefs.

Dhavan: Now, my Lord, what will we do without Article 26? All religions will be doomed to ritual. That is why Article 26 is the most important right for the sustenance of religions across time. Take away institutional practices. I will give you an example. We all speak of the Nazarene Jesus. The Sermon on the Mountain etc...But when Saint Paul came along and addressed the Greeks using Greek eschatology and Jewish justification, he said the unknown God is your God. That is how the Church developed. Would there have been Christianity without the Church? It would not have happened. It is the Church as an institution that is responsible for the continuance of Christianity. This is true of many things in Islam and it is certainly true of Hinduism. Article 26 does not cover just the Hindu faith. It covers all institutions across the board. That is why it is so crucial.

Justice Amanullah: You said that freedom of conscience has a very wide application. Are you creating a proposition, probably like a system? Are you suggesting that as judges, as a constitutional court, we cannot create a system around conscience because religion may be very personal to an individual? But when we adjudicate, we have to rise above religion and to the consciousness at a level where it is balanced with constitutional provisions, and then see the larger picture that emerges.

Therefore, will we not have to write about everything that has been projected as religion, where it is said do not touch. Are we not a constitutional authority, and under the scheme of the Constitution, are we not called upon to enter into the area of conscience as well? And that may not necessarily be restricted by the term religion. That itself could be a separate issue.

Dhavan: These provisions stand on a different footing. We do not need to examine them through the doctrine of limitations under Articles 25 or 26. These are constitutional statements of universal application which operate across the board. Otherwise, we would begin asking why such provisions are not repeated elsewhere. That is not necessary. This is an interpretative approach. I may put it simply...my mother used to tell me that when we go and buy saris, you throw one sari, then you throw another one, and a third one. Now whether they will like it or not, we don’t know. But at the end of the day, my Lord, we are saree throwers...Your Lordships will no doubt decide all this, and pick the best one.

Dhavan: However, certain provisions of the Constitution stand on a different footing. Take Article 17 on untouchability. It is an absolute mandate. No court, no religion can ever flout the command of Article 17. It does not matter who manages religious affairs, this mandate must be observed. The same can be said of Article 14, which speaks of equality. Articles 23 and 24 also lay down universal mandates.

Justice Nagarathna: Are you saying that conscience is something larger than religion?

Dhavan: I would not put it that way. Conscience takes its colour from religion itself. It cannot be treated as entirely separate. At times, conscience may manifest externally, but I would still distinguish between the manifestation and the core of conscience. Conscience exists within all of us, and the word freely relates it to religion. That is the question raised, and I am attempting to answer it through this interpretation. This is of considerable importance.

Now let me come to another aspect, the phrase "subject to the provisions of this Part". Your Lordships normally classify fundamental rights as liberal egalitarian rights under Articles 14 to 22, then anti exploitation rights under Articles 23 and 24, and then cultural and religious rights. That is the usual classification.

Dhavan: We celebrate figures like Jyotiba Phule and Savitribai Phule because they sought to reform society, much like Babasaheb Ambedkar. He went to Mahad and asserted his right, saying that he would exercise it regardless of opposition. The law did not change immediately, but the assertion was important. It is this tension, this dialectic, between those who freely exercise their rights and those who assert their freedom of conscience that must be kept in mind. This is of crucial importance.

Dhavan: Now I come to the word freely. A person may belong to a particular faith but may be a dissenter. He may say that he belongs to the faith but has his own difficulties with it. Hinduism itself shows how there is a wide range of people who take a distance from the main stream. This happens all the time. It also applies to a conscientious objector. Freely therefore means the right to follow a religion, not to follow a religion, and even to say that something is wrong within that religion, subject to the limits of law. Hate speech cannot be permitted. Therefore, bona fide conduct and respect are essential. These two are fundamental to the transformation of religion.

Dhavan: Now, I come to Article 25(1). Forget about the limitations for the moment. It says all persons are equally entitled to freedom of conscience and the right freely. Justice Nagarathna emphasised the word freely, which is a very important phrase. When we speak of freedom of conscience, we are raising a very large issue. I have the freedom of conscience to question anything. I can question the State, I can question a religion, but it must be done respectfully. The question of hate speech has also arisen before Your Lordships, and I do not wish to go into that. But this right of conscience is a very expansive right. It is a right given to all of us to question anything, but in a bona fide and respectful manner.

Dhavan: The entire discussion for the last four days has been on decoding Articles 25 and 26. That is the central focus of this hearing. Therefore, that becomes extremely important. I do believe Article 27 is also important, and Articles 27 and 28 as well, but I will come to that later. May I now take Your Lordships to the Constitution. That will relieve me from excessive reading.

Dhavan: There was also the crucial question whether the Ayyappa practice in this case constituted a denomination. If something is not a denomination, it loses the protection of Article 26. Therefore, the Ayyappa temple would lose that protection. I will explain what Article 26 implies, because it is the most important provision in the interplay of Articles 25 and 26. Justice Chandrachud also took the view that exclusion of women amounted to a form of untouchability under Article 17. This was not accepted by Justice Malhotra. A new test of essential practices was also indicated, namely whether denial of a practice would alter the faith of a person. This is a very narrow test. It effectively says show how your faith will change, and only then it is essential. That, in my submission, is far too narrow.

Dhavan: On the meaning of morality in Article 25, Justice Misra, Justice Khanwilkar and Justice Chandrachud were of the view that morality meant constitutional morality based on liberal egalitarianism. Justice Nariman felt that it referred to something abhorrent to a civil society and rejected the idea of constitutional morality. Justice Malhotra took a different view of constitutional morality to reinforce pluralism, secularism and religious diversity. So there is a clear difference of opinion, and that same difference may arise again. Justice Chandrachud insisted that other provisions of Part III must inform the interpretation. Justice Nariman took the view that it should be decided on a case by case basis.

Dhavan: What happened is that Justice Khanwilkar, who was with the majority and had subscribed to the judgment of Chief Justice Misra, later changed his position. Justice Gogoi replaced Chief Justice Misra. Indu Malhotra then effectively becomes the majority view which is responsible for this reference. It is important to understand what are the issues we are discussing in the wider context of the perspectives I have indicated. In the earlier judgment, Justice Misra, Justice Khanwilkar and Justice Chandrachud took the view that the exclusion of women from prayer was not an essential practice. Justice Nariman proceeded on the basis that it was an essential practice and thus concurred with Justice Malhotra.

Dhavan: A foundation has already been laid by the Solicitor General, by Mr Madhusudan and by Mr Singhvi. I am only building on the analytical propositions. I am not getting into Sabarimala or the review. Let me give an anecdote. I spend an hour every day with my staff and ask them to put questions to me. This morning, my cook asked me what had been prepared so far. I explained a few things. Then he asked what should be made today. I said boil the dal, add salt, and then when you do the tempering, add garam masala. This case, I would say, is like that. It is about adding a little garam masala, just tweaking, nothing more. I now come to the question raised by Justice Nagarathna about what is the connection with Sabarimala and what really brings out these issues. I have briefly explained this and I will read it out very quickly.

Dhavan: After Partition, the Constitution was a solemn promise to heal a diverse nation. Healing is a part of the Constitution for everybody. After the Emergency, it was used to fight tyranny. Today, we live under intimations of divisive forces where healing becomes crucial. A question was raised by Your Lordships whether this litigation will divide society or harmonise it. I would submit that the endeavour must be to harmonise. The healing process is very much part of the interpretation of Articles 25 and 26.

Dhavan: We have a secular Constitution, and even in the Objectives Resolution, because Pakistan was around the corner, it was said that we should hold to this idea, and the Preamble was ultimately decided in 1949. There is a Hindu concept sometimes attributed to Parashara, and sometimes wrongly to Manu. It is yug anusarita. Some say it is by epoch. But scholars like KP Jaiswal have said it is not epoch, it is time. We move from one time to another, we evolve, sometimes slowly, sometimes fast. That is how the Constitution must also be understood.

Dhavan: And therefore I say, faith will always change over time. That change does not come by statute alone. It comes from people. An example was given of a woman becoming the Archbishop of Canterbury. I had debated with Archbishop Ramsey, the head of the Church. I asked him why there were no women priests. His reply was that he had to carry his flock with him. That is an important aspect of leadership. We can go on doing social reform after social reform. But if it has no meaning and does not carry the people with it, then somewhere we may be missing the wood for the trees.

Dhavan: What Your Lordships decide will affect tribal religions also. This is important because there is pain in these areas. Often we say social reform provisions should apply there or should not apply there. When it comes to manifestations of external superstition, should they apply there or should they not apply there. Take the example of witchcraft. Should it apply there. I have worked with an NGO in Jharkhand where the concept of branding someone a witch exists, and there was an attempt to bring legislation to address it. What do we do about that. It cannot be decided on Hindu law principles.

Dhavan: Let me start on this note. Your Lordships are not just protecting Hindu practices. The concern is to lay down the law for everybody, every belief and every matter of conscience. Justice Nagarathna raised a very important question as a preface to Article 25(1), which I will come to. Kindly come to five points that I want to raise. These are foundational questions. My first point is that the Indian Constitution was designed for a civilisation state. If you take all of Europe, sub Saharan Africa, Russia, parts of South East Asia, and the Americas, we will still have a diversity far greater than all of them put together. That is why it is said that this Constitution is not for a nation but for a civilisation state. I would add that it is a multi-civilisation state. That is of crucial importance and guided the eleven judge Bench in TMA Pai. It is not about one temple or one belief. It runs across the board.

Dhavan: Justice Varale asked an important question to Mr Singhvi when he said one can go to any Ayyappa temple. If it is a question of choice, and there is one temple which has significance, then it is not a question of going from one to another. A range of questions also fell on whether Article 26 is a subset of Article 25 and merely a conglomeration of individuals. That is extremely important. I have one indulgence to ask. I am wearing a hearing aid. If it squeaks, Your Lordships should not ignore it. Like Mr Abhishek Singhvi said earlier, because of a corrective prism in his spectacles, if he turns his head he may see eighteen judges, which is more intimidating than what he sees now.

Sr Adv Rajeev Dhavan: Let me begin at the outset. On April 7, the Chief Justice put a framework on discretion and how high or how low one could go on this. It was indicated that it could be a broad discretion. Then it was indicated that it could be no discretion. Then it was said it could be a narrow discretion to insulate minorities. And fourthly, it was indicated that it could be case by case. It should not be case by case because certain principles have to be laid down.

A number of questions fell from Your Lordships. A large number from Justice Nagarathna on whether essential practices is in fact a juristic invention. When we look at existing law, does it include custom. There were several others which are of crucial importance. Justice Amanullah asked an important question as to whether when you have a superstitious belief which has an external manifestation, can we say that the external manifestation is not subject to judicial review. There were important questions from Justice Sudhanshu Dhulia and Justice Kumar, on judicial intervention. There was also the question whether logic applies to belief.

Venkatesh: I will now draw attention to Rule 6 of the Kerala Devaswom rules. It is a simple entry rule but very instructive. Rule 6 says that classes of persons mentioned therein shall not enter within the compound wall of a temple or its premises, or where there is no compound wall. These include persons who are not Hindus, persons under pollution arising out of birth or death in their families, women at such times during which they are not by custom and usage allowed to enter temples, drunkards or disorderly persons, persons suffering from any loathsome or contagious disease, persons of unsound mind except when taken for worship under proper control and sanction of the officer concerned, and professional beggars.

I will pause here and make an important submission. This is not confined to one rule. This applies to temples in South India generally. Women, when they undergo a monthly biological process, by their own discipline do not enter temples. This is an unwritten rule. Even in the house they do not enter the place of worship. This is a matter of belief. I cannot give a scientific explanation. When science ends, belief begins, and when belief ends, science begins.

Venkatesh: I had the privilege of receiving a small note from the Kanchi Mutt. This has been sent by the Paramacharya during the formation of the Constitution. I will just read it and have it circulated. If such a Constitution is guaranteed as being good for the independent running of religious institutions, it is no small measure due to the initiative of the Kanchi Paramacharya. Originally, the wording was every religious denomination shall have the right. Nobody found any discrepancy in the wording, including the Constitution makers. His Holiness alone felt that this was not enough. No Hindu thinks of himself first as a Hindu. He thinks in terms such as Vaishnavite, Shaivite, Smartha or Saiva Siddhanta.

Similarly, no religious institution in India is run under the label of Hinduism. We have Vaishnavas, Saiva Smarthas, Saiva Siddhantas and so on. Therefore, the word religious denomination by itself was not sufficient. It was felt that the wording should be every religious denomination or any section thereof shall have the right. This was ultimately accepted. This shows that the issue had engaged the attention of the Kanchi Mahaswami as far back as 1948, and that is how Articles 25 and 26 underwent certain changes.

MR Venkatesh: Sometimes we see that Article 25(2)(a), if I can read it out, one can say it is a secular law, an intervention into a secular law, where religious activities or issues are in the periphery. I will give a simple example. The words are political, economic, financial and other such activities. Electoral law is primarily political, but it says that religion in the matter of electoral law is permissible under Article 25(2)(a).

But what we have done is to turn the whole doctrine upside down. We have started reading religious law in association with secular practices, then boxed religious practices into a corner by defining the core of what is called essential religious practices, and kept the field open for secular practices to be interfered with. Let me take another example, charity. A charity per se can be a secular affair. But a religious charity would fall within the ambit of religion and should not be interfered with. What is happening is that we have expanded the scope of religious charities to bring them within the ambit of charity and then say that this is a secular affair and start interfering.

So a judicial policy has to be evolved to say that once it enters the religious domain, a charity per se, say I give money to a person to watch an IPL match, it is not coming under Article 25(2)(a). But if I say that it is for a religious purpose in a temple or any other religious place, my submission is that it should be protected under Article 25. On Article 25(2)(b), the learned Solicitor General has taken the Court through Devaru and other judgments. I will only say here that Article 25(2)(b) and Article 26(b) are two interplays which this Court is concerned with.

My submission is that as far as throwing open to all classes is concerned, all classes would include every caste and every community. As far as sections of Hindus are concerned, I regularly go to Sabarimala. In the Sabarimala pilgrimage, typically, all castes and communities converge and it becomes a section by itself. There is nothing called caste there, there is nothing called class there. There is only one thing that persists, which is the Ayyappa section, comprising all subsections. Section is used only in the context of Hindus where there is intermixing of all classes. It is also a mobile concept. It can move up and down, it can be vertical, horizontal or even diagonal. It would mean that any section of Hindus would be allowed to enter. But when it comes to Article 26(b), it is only to manage its own affairs.

I will give a simple example. Many people come to watch proceedings in this Court. Entry is permitted. But the Registry manages and administers the affairs of the Court. Anybody who enters the Court cannot say by virtue of Article 26(b) that they should also manage its affairs. There are clear distinctions. The denomination is protected in managing its own affairs, whereas as far as entry is concerned, everybody must be allowed. Devaru is good as far as temple entry is concerned. Article 26(b) must be allowed so that every distinctive denomination or sections thereof can move from one temple to another. But the larger issue is management. As far as denominational temples are concerned, my submission is that management must lie only with the denomination, and that protection is non negotiable.

Venkatesh: Dr Ambedkar clearly made a point of distinction between untouchability and temporary defilement. And this, I submit, was lost in the Sabarimala judgment, which at its core arises from the speeches of Dr Ambedkar in Volume 7.

Venkatesh: These values of courts about these values of large courts have interest here. And then the question I will ask myself is how free is free? What is practice? What is equally entitling? Freedom of conscience and all persons, which are all related to Articles 25 and 26, which needs probably elaboration and judicial intervention by this Court. My Lords, a secular State which basically seeks to truncate religious freedom in one way or the other cannot be a case where on one hand we say we are a secular State because of non interference in religion, and also say religion should not be interfered with in the spheres of secular aspects of the State. The intersection will be there.

Nothing is absolute in this life. But the intersection must be minimalistic, must be thin and clearly defined, and arising out of that definition the rules and regulations must be clearly enunciated by this Court. As far as this is concerned, I would say that the whole process of doing this exercise will again result in some sort of confusion.

Lastly, I ask myself that the continuing inquiry under Article 25(2)(a) is whether the intended law is predominantly secular in purpose or whether its application to a religious setting is incidental, or is it that it is religious in its character and intervention is of incidental secular nature. Therefore, if the first proposition holds true, should it be absolutely non-invasive of the religious rule.

Adv MR Venkatesh: My Lords, the first thing I would like to say is that the word religion in Article 25, religious practice in Article 25(2)(a), Hindu religious institutions under Article 25(2)(b), religious denomination under Article 26, and matters of religion under Article 26(2)(b), are all indeterminate and probably incapable of being defined.

The word denomination, for instance, can be traced to the word denomination in the Latin language, fortified by medieval Christianity, which allows the word denomination to be rooted to a particular denomination within the Christian religion, and it was picked up by the Irish Constitution, and we have adopted it. So it has huge foreign roots, and to this extent these words have their own limitations in terms of our understanding.

What gets compounded is that while Articles 25 to 28 have the roots of Article 44 of the Irish Constitution, Article 25(2)(a) in the way it is being read, and Article 25(2)(b), have no international precision. In that sense, Article 25(2)(a) and Article 25(2)(b) are sui generis and are rooted in Indian conditions, tailor-made for certain Indian conditions. This requires interpretation and proper intervention of this Court.

Moreover, if there is a definition for denominational temples and a certain class of temples falls into denominational temples, then what happens to non denominational temples? Do they have no rights? Do they have no protection under the Constitution? And how do we deal with non denominational temples? The way it has been interpreted by law, and I will demonstrate very shortly, the problem is that all this becomes a sort of public place, which is equated to a car, railway station or a bus stand, where anybody can enter and anybody can leave.

And then it would seem that the Jehovah Witness case has been relied upon heavily in the formulation of Article 25. Originally proponents of what I would say is the doctrine under Article 25(1), which deals only with what I would say is that even on a mere reading, as Mr Sundaraman pointed out, it should shock the conscience of the Court.

Adv MR Venkatesh appears for Atmatam Trust.

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 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.

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.

During the last hearing of the matter 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.