Senior Advocate J Sai Deepak: Codification of a pre-existing religious practice by the State does not make that practice amenable to judicial review, because it is not an exercise of rights under Article 25(1) or Article 25(2) where limitations are imposed.

The submission is that if the judiciary or the courts cannot sit in judgment over constitutional challenges to practices themselves per se, merely because the State recognises that practice by way of legislation, that does not make it amenable to review.

Because at the core of it, one would still be entering into the question of Article 25(1) and Article 25(2) in that sense.

Senior Advocate Sai Deepak: The first part of the compilation sets out extracts tracing the development of these provisions, including how the language emerged over time. This exercise is necessary because it answers the key issues that arise. What is the relationship between Article 25(2) and Article 26? What is the meaning of a denominational institution? Is a religious denomination different from a religious institution, and if so, how?

Prior to the adoption of the Objectives Resolution in January 1947, there were preliminary notes on fundamental rights which shed light on the predecessors to Articles 25 and 26. One such note is by B.N. Rau, the Constitutional Adviser, who broadly enumerated the categories of fundamental rights. Another is the draft prepared by K.T. Shah, which contains an early prototype of what later became Article 25.

In that draft, the right to freedom of conscience was framed broadly to include freedom of belief, worship or profession of any religion, as well as the negation of such beliefs, subject to public morality, order, and laws ensuring public peace, tranquillity and harmonious relations among communities.

After the Objectives Resolution, subcommittees were constituted to deal with fundamental rights. The material that follows shows that what is now Article 25(2) was always conceived as a proviso to Article 25(1). It was never intended to affect Article 26. This becomes clear from the historical evolution of the language.

The use of the phrase “nothing in this article” is deliberate and significant. It indicates that Article 25(2) operates as a limitation within Article 25 itself, and not as a qualification to Article 26.

Senior Advocate J Sai Deepak: The relationship between Articles 25 and 26 is the next question. In order to address the questions framed for reference and the additional issues that arise, a holistic understanding of Part III is necessary, of which Articles 25 and 26 form a part.

Since Part III deals with fundamental rights, certain foundational questions must be asked. Who do these rights inhere in? Who are they available against or in relation to? What is the nature of these rights? What are their limits? And who enforces these rights?

A central issue that arises is this. If Article 26 deals with denominations, under which provision do non-denominational institutions locate their rights?

In my view, all of this turns on the history of Articles 25 and 26. I have placed before the Court a compilation which traces that history in its entirety, including the evolution of the language of these provisions. That history, in my submission, forms the core of the issue, particularly because this question has repeatedly arisen during the hearing.

Senior Advocate J Sai Deepak: I am representing Chetna, which is a women’s organization that stands in support of the temple’s tradition. I also represent an all-India organization of Ayyappa temples, which is Writ Petition 39642.

I am also representing the Shirur Mutt in this matter, which is IA number 18313 of 2020. I also represent the Tantri of the Padmanabhaswamy Temple, who has a direct say with respect to the practice of the Sabarimala temple, and that is IA number 18326, and the Tirupati Balaji temple, 11778 of 2020.

The other three IAs have not been mentioned with respect to Shirur Math, therefore I am pointing this out. Fair disclosure, these three IAs for intervention were discussed by the previous Bench on 10 July 2020, so my submissions will be common.

Hearing to resume post lunch

Senior Advocate Gopal Sankaranarayanan: Do we need an essential religious practices test? My answer is no. It is not. It is very clear on its own terms. And partly, like Justice Amanullah said in the morning, in many cases it will come down to the facts of the case. There may be a very unique practice. So rather than putting down broad-based labels, putting down an essential practices test, the phrase is very clear, both in Articles 25 and 26, about managing a faith in relation to matters of religion.

If there is a connection to the religion, defer to what the denomination is saying. It is critical to us. I do not think a non-ecclesiastical court should be testing that aspect of it. It should defer to what the denomination says it is, if your logic is satisfied that it is a denomination. And therefore, the central question, in my view, is can… do not have the essential practices test. No question about it. Do not have it. It is not necessary. The Constitution is very clear on its own terms.

Sr Adv Gopal S: And therefore, the last four questions, what is the true meaning and scope of morality used in Articles 25 and 26? My view is, please do not throw overboard the phrase “constitutional morality”. I believe that morality can only be what is determined not by Parliament or a legislature, but what the Court determines is constitutionally correct and valid. It cannot be a majoritarian determination.

Sr Adv Gopal S: So the piquant questions that I believe need answering are these. What is the effect of the absence of a reference to Part III in Article 26? Can classes and sections of non-Hindus be excluded from their respective places of worship? Can Scheduled Castes be excluded from Hindu religious institutions of a private character, because this uses only the word “public”? How can Article 25(2) be made to apply to Article 26 when it does not say it is subject to it? Are denominations only subsets of religion? If not, how do we distinguish? If your Lordships can see the diagram at the bottom, I have given illustrations there.

I believe there are three possible options in how this religion and religious denomination dichotomy plays out. Option one, if you see the Venn diagram, is where it is a subset. The second option shows religion as the larger circle and then A, B, C and D. A is where it is completely a subset, perhaps like a Vaishnavite within Hinduism. B is where there may be some overlap with an existing faith but they have some other practices, like say an Anand Margi. C is where it is completely outside a faith, Aurobindo for example. D is completely outside. The third option is where they are completely distinct. You say religious denominations cannot arise from existing religions. I think that is too far-fetched, but I have given all three to give your Lordships an idea of how these interplays exist.

Sr Adv Gopal S: Nonetheless, coming back to this one-pager, morality I have already dealt with. The phrase “nothing in this article”, I have shown everywhere in Part III that it is utilized. It is utilized in about fifty other places in the Constitution.

The phrase “establish and administer”, both words which come in Article 26, also come in Article 30. Which is why at first blush, while the argument may not seem attractive, I hope your Lordships will consider it, because there is a different footing as far as minorities and, as I believe, religious denominations.

Sr Adv Gopal S: And I have referred to the eleven-judge decision in R.C. Cooper, paragraph 52, because in that paragraph of Justice Shah’s judgment, this is unanimous, ten is to one, I have it here, in dealing… I am just reading that one paragraph because it is an eleven-judge decision.

In dealing with the argument that Article 31(2) is a complete code… I will come to the specific part. In some cases, it is an express declaration of a guaranteed right, Articles 29, 30, 26, 25 and 32. In others, to ensure protection of individual rights, they take specific forms of restrictions on State action, legislative or executive, Articles 14, 15, 16, 20, 21, etc. In some others, it takes the form of a positive declaration and simultaneously enunciates the restriction thereon, Article 19(1) and 19(2) to (6).

In some cases, it arises as an implication from the delimitation of the authority of the State, that is Article 31(1) and (2). In still others, it takes the form of a general prohibition against the State as well as others, which is Part III, Articles 23 and 24. The enunciation of rights, either express or by implication, does not follow a uniform pattern.

Sr Adv Gopal S: The reason why I say please consider that there is a constitutional parallel is because any other acceptance may do violence to the express words that are at the very top.

I will just take a couple of minutes more. If your Lordships come to the second page of what I have handed up, the relevant concepts, in the backdrop of what your Lordship… yes, please consider that there is a constitutional parallel, because any other acceptance may do violence to the express words that are at the very top.

Article 25(2)(b) refers to all classes and sections of Hindus. It does not mean a particular gender. It should not. I feel when denomination is spiritually spliced out and put as Article 26, would it be fair to include it here as a class or section? I feel that may not follow. Now also please note Article 26. I believe when you are not testing it with reference to other faiths, when a Jacobite chapel decides to exclude, that is not protected here.

Now the relevant concepts from Part III, this is only to assist your Lordships. Like I said, I think if there is so much history behind this and there is so much cultural background behind this, the relevant concepts which are set from Part III, the expressions “religion” which are used elsewhere in the Part, I have mentioned Articles 27 and 30, “religious denomination” in Article 16(5) and Article 27, horizontal rights which I have already referred to.

Sr Adv Gopal S: Which is why I am saying Articles 25, 26, 29 and 30 give you a constitutional parallel to which my argument then is not that abhorrent. When I say, as a religious denomination, I am entitled, and please do not look at it with this idea of keeping society together, that is really not our task, my Lords. Our task is to test the constitutional principle.

What I am saying is, if a religious denomination identified as such, or Aurobindo for example, they are not identified, but if you were to, they get together and say, sorry, if you do not ascribe to ABCD, I am not going to allow you entry, I do not see a problem with that, and I think that arises from Article 26. The exclusion of the untouchables, no, there is no question of doing that. There is no question of employing child labour and saying I am administering affairs. No, there is no question of any of that, because that is abhorred by the Constitution. But I am saying the religious denomination, in managing its affairs, in doing everything that Article 26 affords it, is on a slightly higher pedestal, and necessarily so, because the words “subject to other parts” are not there specifically in Article 26.

Senior Advocate Gopal Sankaranarayanan: My argument is, much like that, please note this, in Articles 29 and 30 of the Constitution, where you deal with minority educational institutions. That is why I showed your Lordships Articles 15 and 16. Educational institutions that are run by non-minorities, which are run by religious and linguistic majorities, have to have reservations. They also have to give 25 percent EWS as under Article 21A.

But minority educational institutions do not need to do that. Minority educational institutions, whether religious or linguistic, have the additional protection and additional right to take as many students as they want, provided, as said in Ahmedabad St. Xavier’s, you have a sprinkling of non-minorities to give it balance. Right, my Lords? What I am saying is, the minority educational institution is on par with the religious denomination as against the non-minority educational institution compared to religion. I hope I am making myself clear. I am saying there is a constitutional parallel to why I can…

Justice Joymalya Bagchi: The very nature of defamation shows that Article 19(1)(a) is not directed against the State, or not enforceable against the State, or by the State. The protection is definitely enforceable against anyone who suffers defamation or injury.

Senior Advocate Gopal Sankaranarayanan: I want to give you some examples. I am a school student. I stand up and keep interrupting the class, saying I have an Article 19(1)(a) right. It is my horizontal right. I am expressing it. Is it wrong for a teacher to say, "I am throwing you out of class because you are disrupting it"? Can the student come back and say my Article 19(1)(a) right has been violated? My answer is no. I am clear about this. There is no right to horizontal equality available to that person under the Constitution. There may be different disciplinary regimes, but those disciplinary regimes cannot be challenged by saying that my Article 19(1)(a) right has been violated.

Because there are spaces within which discipline is required. Speech of this sort cannot, in fact, be utilised. Offices would not be able to function. Most places where you require some level of restraint would not be able to function. In fact, I know this as a personal tale.

The Official Secrets Act provides that civil servants, if they speak out openly, honestly, and truthfully about what is happening in their offices, they are not protected by Article 19(1)(a), because the Official Secrets Act says that any action of this sort can...

Sr Adv Gopal S: The definition of “law” includes any ordinance, order, bylaw, rule, regulation, notification, custom or usage having in the territory of India the force of law. And clause (b), “laws in force” includes laws passed or made by a legislature or other competent authority in the territory of India before the commencement of this Constitution, and not previously repealed, notwithstanding that any such law or part thereof may not then be in operation, either at all or in particular areas. So there is a mismatch in the language of “laws in force” here as well as in Article 366(10).

But for a minute, if your Lordships will see Article 372, which is page 414, which deals with the continuance in force of existing laws and their adaptation. Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395, but subject to the other provisions of this Constitution, all the laws in force in the territory of India, your Lordships will note the phrase “laws in force”, shall continue in force therein until altered or repealed.

And for the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the President may, by order, make such adaptations and modifications.

Explanation 1, just after clause (3), the expression “law in force” in this article shall include a law passed or made by a legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that it or parts of it may not then be in operation either at all or in particular areas.

Sr Adv Gopal S: Ladyship, Justice Nagarathna, on the first day, asked what the scope of this “existing law” is. Existing law is defined.

Justice Nagarathna: Correct, it is defined. Article 366(10).

Senior Advocate Gopal Sankaranarayanan: Correct.. also the continuance of laws in force under Article 372. As also the expression “laws in force” which is used in Article 13, clause (3). Now, there is at least one judgment in the 1950s which specifically says “laws in force” and “existing law” effectively mean the same thing. It will be there in my written note. There is a judgment of your Lordships which says so. I do not believe too much flows from it, except perhaps in a narrow area where custom and usage may arise. If you see Article 13(3), in this article, unless the context otherwise requires, “law” includes any ordinance, order, bylaw, rule, regulation, notification, custom or usage.

Gopal S: So, if your Lordships do not mind, the approach that I am adopting is as follows. The first is to look at the larger scheme of Part III of the Constitution in the backdrop of the religions and the denominations that populate this vast nation, this civilization, as Dr Ambedkar said. That is relevant.

The second is bearing in mind what specifically are the religious practices and issues that we constantly see. We have been seeing a lot about temple entry because that is an issue in one case in this batch. There are other cases also in this batch. Look at different aspects. One is looking at mutilation. The other is looking at a Parsi woman marrying outside her community, whether she is allowed entry into the fire temple or the Agyari. There are different issues that keep coming at every stage.

We have had the issue with the hijab in schools. So there are multiple issues which will arise in a country which is so rich in its culture, and so rich in the practices that you have. All of this will be encompassed in it.

So it is in that backdrop, and particularly in the backdrop of Part III, I was wondering if we could explore how Articles 25 and 26 and their interaction lie, and what flows from it.

Senior Advocate Gopal Sankaranarayanan: I agree we should not be looking at the facts of individual cases... We must look at it on a completely broader plane than looking at it from the point of view of Sabarimala. I am appearing for the review petitioner in Sabarimala and some others. We are devotees there, plus other religious groups. I have two intervention applications also.

But I think when your Lordships are looking at it from the perspective of nine judges, you are transporting yourselves back to 1950, effectively. And all the judgments that have come before would possibly give some guidance, would give a template about what we are actually grappling with.

Senior Advocate Gopal Subramanium: I want to set out my position because I am sitting here. My position is on a point of principle. As a matter of legal construction, I have difficulty with the majority view in Sabarimala on a point of law.

And these questions will have to be first answered, in my submission, in an abstract manner, without reference, shall we say, to the facts of any particular case. And they do require some degree of reflection, rumination, which I suppose, my Lord, in the course of my submissions, we will be reflective.

But it does require a lot of extreme thought, because we are dealing with very profound areas of personal faith. We are also dealing with collective faith. And we should not forget, we are dealing with all religions in this country.

VV Giri: If there is a complete ban on anybody becoming a priest, and priest means the person who is instructed in the Shastras as to how to conduct worship and how to worship the deity, if there is a complete ban on any person becoming a priest and then doing the seva, as we call it, only by reason of birth, that will be taken care of either by a Article 25(2)(b) legislation or it will be taken care of by the State itself.

This is not elaborately discussed in Adi Saiva Sivachariyargal’s case. The main aspect dealt with in that particular case, faith is faith, faith is faith, and practice is something different. Practice is always something different, which is also based on faith.

Justice BV Nagarathna: If the practice is associated with a particular deity, involves certain Agamas, a certain way of worship, etc., one of which may be that persons who are qualified to do that worship only can do that worship, therefore a believer believes that only certain persons with qualifications can do that worship, and the benefit of that worship the believer also gets.

It is not necessary… in some Shiva temples you say “Om Namah Shivaya”, you can put water on the lingam. In other temples, you cannot. There are various practices. In other temples, you are not permitted to touch, because that is part of what is called anushthanas, or the practice, or whatever it is.

Nothing to do with untouchability as such.

Justice Ahsanuddin Amanullah: This is an extreme example. Yes. When you move so far down the path of faith and belief, I go to a temple, my fundamental belief is that he is the Lord, he is my creator, he has created me, right?

I go one hundred percent. I am totally devoted, absolutely nothing impure in my heart. I go there. And there I am told that because of a birth, a lineage, a certain situation, permanently you are not allowed to touch the deity. Now, will the Constitution not come to the rescue?

Ultimately, there cannot be a difference between the creator and creation. In fact, you are right, how we do it for certain periods. Suppose I am going and somebody throws mud on me, I fall in the mud. I see myself, I have to be in a decent position to approach the deity in a pure way. That you can decide. Purification means accept it or take this or whatever it is.

But then the permanent disability that I cannot touch my creator, I am a strong believer of that particular deity, he is my creator, will the Constitution not come? Because ultimately what you are projecting is that he is the God, he is the creator, but the creation will not be able to touch his creator.

To what extent will you limit it? When you say that because of birth, somebody cannot do it, he cannot change it. In this lifetime, he cannot change that position. So why only an article? Why should the Constitution not come in the way? And how does it defile the deity? Because you think it should... Why?

Senior Advocate VV Giri: Not there, see, it could arise in two forms. One, I have my right to freedom of conscience. That could include a right to believe in God. And if I am born in a religion, normally I would say that I have this faith, I have faith in the religion in which I was born.

But I still need not go to a temple. I am just giving an example. I still need not go to a temple to be a practicing Hindu. There are several persons who probably do it this way. History also is replete with examples of that.

But if I believe, if I want to, if I go to a temple, then I go to a temple for the purpose of worship. If I go to the temple for the purpose of worship, then whatever is an integral part of the manner in which the deity is consecrated, the deity is worshipped, and the temple is maintained, is out of bounds for me insofar as Article 25(1) is concerned, because this is part of the practice of my religion which alone is protected under Article 25(1).

A face-off between the rights of a believer, a member of the denomination, and the denomination itself, will not really be contemplated. If there is an inner churning within the denomination to see that any particular practice should be abandoned or modified... then...

Justice Sundresh probes...

Justice Joymalya Bagchi: Let me just put it differently. If you say a religious practice is unique to the denomination, and therefore anyone who believes and is part of that denomination is a believer and naturally will defer to it, if that argument holds, then do you agree that that will be contrary to an inner debate in the denomination itself with regard to what ought to be a religious practice?

And in this situation, what would be the role of the Court? Let us say a person who is a believer comes to the Court and challenges the belief of the denomination itself, which is being canvassed as a religious practice of the denomination. He says no, this has no ancient antiquity, this is not connected to the core tenets to which we all confess, and it has been put up for certain reasons.

In this situation, will or will not a believer be in a position to challenge the denomination’s claim of matters of religion?

Justice PB Varale: A believer now, with the advance of technology, with access to education, with some thinking, having exposure to other philosophies, etc. Can we say that a believer, if he believes, he need not be a rational person?

Senior Advocate VV Giri: I have a right, my Lord, to practice my religion under Article 25(1). I believe in that. And therefore, my Lord, when I go to a place of worship, a public place of worship, I believe in the deity. This is what I said, my Lord, on Friday also. I am just repeating it, just to put my arguments in perspective.

My Lord, I believe, I should believe, in the place. I should believe in the deity. Therefore, I cannot lack in belief there and still go to a place of worship for the purpose of worship. My right to worship under Article 25(1) is therefore intrinsically connected to that.

There is no question of going to a temple to find out what are the characteristics. No. I know that. It is part of my right. I believe in the deity wherever I go, whichever is the public place of worship, whether it is a church or a mosque, I should believe in the concept. If I do not, then my entry is not protected under Article 25(1).

My right under Article 25(1), insofar as it encapsulates or captures a right to enter a place of public worship, will have to be in sync with the concepts, with whatever the practices are that are carried on in the temple, and the characteristics of the deity are treated as one of the integral parts, because idol worship and, therefore, worship of the deity is considered to be an integral part of the Hindu religion.

Therefore, when I go to the temple, I go there for worshipping the deity.

Giri: That is a general rule with regard to all these sectarian denominational temples. It is therefore manifest that the Archaka of such a temple, besides being proficient in the rituals appropriate to the worship of the particular deity, must also belong, according to the Agamas, to a particular denomination.

An Archaka of a different denomination is supposed to defile the image by his touch, and the essence of the religious faith of all worshippers is that there should be no pollution or defilement of the image under any circumstances. The Archaka undoubtedly occupies an important place in the matter of temple worship.

Any state action which permits the defilement or pollution of the image by a touch of an Archaka not authorised by the Agama, for these reasons, would violently interfere with the religious faith and practices of the Hindu worshipper in a vital respect.

And then, my Lord, the Court said, would therefore be prima facie invalid under Article 25 of the Constitution.

Giri: The Agamas appear to be more severe in this respect. Our Parthasarathi Pattacharya, whose authority on Agama literature is unquestioned, has filed a recitative petition and stated, in his recitative, special reference to the Vaikantha Sutra, to which he belongs. According to the text of Vaikantha Shastra, persons who are the followers of the four Rishi traditions of Bhrigu, Atri, Marichi and Kashyapa, and born of Vaikantha parents, are alone competent to do puja in Vaikantha temples of Vaishnavaite.

They only can touch the idols and perform the ceremonies and rituals. None others, however placed in society as pontiffs or Acharyas, or even other Swamis, could touch the idols, do puja or even enter the Garbhagriha. Not even a person belonging to another Agama is competent to do puja in Vaikantha temples.

Senior Advocate VV Giri: Brahma Purana says that when an image is broken into two, or reduced to particles, is burnt, is removed from its pedestal, is insulted, has ceased to be worshipped, is touched by beasts like monkeys or false and impure ground, or is worshipped with mantras of other deities, or is rendered impure by its own self, and in these ten contingencies, God ceases to dwell therein.

Senior Advocate VV Giri makes submissions.

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.

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.

In the last hearing of the matter 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.

Live updates from the hearing today feature here.