Venugopal: This position finds some recognition in the Constitution Bench decision in Acharya Maharaj Shri, where it was held that while rights under Article 26(c) are not absolute and property can be acquired, there may be situations where acquisition would so completely negate the right that it would affect the very survival of the religious institution. In such cases, the issue would have to be examined differently. While that judgment may not fully capture the idea of sacredness, it does recognise that there is a line which should not be crossed.
Senior Advocate Krishnan Venugopal: I have a slightly nuanced difference on this. I am saying that the words “acquire and own property” mentioned in Article 26 are not qualified by the words “in accordance with law.”
Justice Joymalya Bagchi:The first two clauses relate to religious activities.. establishing and maintaining institutions and managing affairs in matters of religion. These appear to concern internal management by a denomination. The latter two clauses address secular matters and are therefore governed by general law. So the first two are religious and subject to limited regulatory control, while the latter fall within the domain of general law.
Senior Advocate Krishnan Venugopal: I agree. May I submit this. The State must have the power of eminent domain and can acquire property through law. However, I would place certain nuanced caveats. From my religion's standpoint, I would divide this into categories. First, there are natural sacred sites. These are places that are themselves considered divine and are worshipped as such. In Jainism, there are sites where the Tirthankaras attained salvation. These sites are themselves objects of worship. Such sites, I respectfully submit, should never be subject to acquisition, except in the most extreme circumstances where the survival of the nation itself is at stake. These are beyond acquisition. The second category would include places like Parasnath Hill, where the 23rd and 24th Tirthankaras are believed to have attained salvation. These sites must be preserved and not acquired.
Venugopal: On a fallback, even if one assumes that Article 25(2) applies to religious denominations as well, the essential religious practices test has no textual foundation in Article 25(2)(a). The provision permits regulation of economic, financial, political, or other secular activities associated with religious practice.
The word “essential” does not appear in the text. The emphasis is on “associated” activities, not on what is an integral or essential part of religion. The essential practices test appears to have evolved through judicial interpretation rather than from the text itself. This creates a serious problem. It leads to courts engaging in what is effectively ecclesiastical adjudication, which ought not to be their role.
Whether in civil suits or constitutional challenges, the question of what constitutes a religious practice should be determined, if at all, through evidence, including expert testimony, rather than through the court’s own normative assessment. That is why the current approach requires reconsideration.
Venugopal: Legitimate State goals can thus be achieved within the framework of public order, morality and health. In fact, social reform can be understood as co-terminus with these heads. That would be a constitutionally permissible mode of interpretation. This case is of considerable importance. It will govern the lives of a vast number of people and will also be examined by constitutional scholars globally. The precedents developed over decades have created complex issues of constitutional adjudication.
Therefore, any interpretation adopted must be logically consistent and capable of withstanding scrutiny. As a matter of structure, Article 25(1) is an individual right subject to multiple limitations. Article 26, on the other hand, is subject only to three restrictions, namely public order, morality and health. It does not incorporate the broader limitations of Article 25, but the State can still achieve its objectives through legislation grounded in those three heads.
Senior Advocate Krishnan Venugopal: Most legitimate State objectives for intervention in matters of religion can be addressed within the three heads set out in Articles 25(1) and 26, namely public order, morality and health. If one closely examines the Constituent Assembly debates, the view was that religion should not be given absolute freedom, but that any necessary regulation could be accommodated within these three heads.
Morality and health, in many ways, can serve as substitutes for social reform under Article 25(2)(b). Therefore, it is possible to construe Article 26 in a manner where legitimate State intervention is permissible without necessarily resorting to Article 25(2)(b). That appears to have been the intention when Dr. Ambedkar clarified that these provisions were sufficient.
Sr Adv Muthuraj: If a practice is found to be religious, then the inquiry should stop there. It should not be taken further into whether it is essential or integral. That distinction between religious and secular practice is valid, but going further into essentiality may not be appropriate.
Hinduism has immense diversity. Practices vary widely. They must be understood within their own context. For instance, I gave an example of a devotee, Kannappa Nayanar, one of the 63 Nayanmars. He was a hunter who developed deep devotion to Lord Shiva. His manner of worship was unconventional. He would offer water carried in his mouth and meat as an offering. When he saw the deity’s eye bleeding, he plucked out his own eye and placed it on the deity. When the other eye began to bleed, he was ready to sacrifice his second eye. At that point, the deity intervened. This illustrates that devotion and worship can take forms that are deeply personal and varied. The manner in which a person worships is according to their belief and understanding. Therefore, practices must be tested from the standpoint of the believer, not against a uniform standard of the religion as a whole. A non believer has no right to get into this.
Justice Bagchi: But what troubles the Court is this. When such matters come before a court, how is one to define a denomination? It is one thing to have a general discussion, but when the Court writes an authoritative judgment, what test is to be applied? Whether the denomination means the religion itself, or whether even a smaller group would suffice. That is the difficulty.
There are two questions. First, how do we test whether a practice is religious or not? Second, against what standard do we test it? In the case of other religions, one may consult texts such as the Bible or the Quran to determine whether something is a religious practice. But how does one test practices within Hinduism?
Muthuraj: If Your Lordships look at the materials I have cited, including ancient Tamil literature such as Tolkappiyam and Tirukkural, which go back more than two thousand years, they do not necessarily refer to the Vedas. So how does one test a practice solely against Vedic principles? The test must be from the perspective of the believer or the guru, not from an abstract conception of religion as a whole.
Senior Advocate Jayanth Muthuraj: There are two approaches. Either one treats worship of a deity as part of the religion as a whole, so that everybody is covered, or one recognises different Hindu sects and denominations, each with their own manner of worship.
If one looks at Article 25(1), it speaks first of conscience. It does not speak only of religion. A group of believers, acting on their conscience, professing and propagating their belief, may themselves form a denomination. That is the flexibility the Constitution contemplates. Therefore, greater importance has to be given to the definition of “religious denomination”, and the criteria must be inclusive of different kinds of groups.
Faith may take many forms. It may go beyond conventional structures, or exist at different levels. Each group may perceive it differently. It may be philosophical, it may be devotional, it may be something else. That is something which has to be left to the believers. We cannot put it into a rigid bracket. In a country like ours, with diverse faiths and philosophies, these matters must be left to those who believe. In that sense, Article 26 can be seen as an expansion of Article 25(1).
Senior Advocate K Radhakrishnan appeared for the Pandalam royal family: Judicial review cannot be questioned by anybody and whenever situations warrant, milords will conduct judicial review. (But) Lordships will be very reluctant to enter into ecclesiastical jurisdiction. Milords will be very slow, extremely reluctant also
Radhakrishnan (referring to petitioners who sought women’s entry in Sabarimala temple): They have not pleaded any prejudice. They are practically non-believers ... All sort of denigrations, deriding remarks (were made) about Lord Ayyappa. Scurrilous remarks ... No action by the State government. Even now it is continuing ... Being a devotee myself, our sentiments are also wounded by the non-action by the government
Intervenors makes submissions
CJI Surya Kant: we respect all eminent persons, jurists etc. but personal opinion is personal opinion
Kaul: There is no harm in drawing from all sources. If knowledge and wisdom come from any source, any country, any university, it should be welcomed. We are far too rich as a civilisation not to accept all forms of knowledge and information.
Justice Nagarathna: But not from WhatsApp University
Kaul: I am not getting into that. I am not into which university is good or bad, which is really inconsequential to this debate..... The point is simply that wherever knowledge and information come from, they must be accepted.
Justice MM Sundresh: You are saying that there is no independent concept of constitutional morality under Articles 25 and 26. At best, it is the spirit of the Constitution. If it is to operate, it should ensure the benefit of those exercising the freedom of religion.
Kaul: Now, the framers made a conscious distinction. Article 25 is subject to public order, health, morality, and also to the other provisions of Part III. Article 26, however, is subject only to public order, health, and morality. It does not include the additional limitation of being subject to the rest of Part III. When Dr. Ambedkar dealt with this issue, the draft provision corresponding to Article 26 did not initially contain these limitations. It was then suggested that limitations should be introduced, and what was ultimately included were only public order, health, and morality. The broader limitation of being subject to other provisions of Part III was not added. If constitutional morality is read into “morality”, then we would be introducing far more than what was intended by the framers. That would effectively expand the scope of limitation beyond what was consciously provided. Would it be appropriate for the Court to supply such an expanded meaning when the framers deliberately chose not to include it?
Senior Advocate Neeraj Kishan Kaul: My respectful submission is twofold. First, the context in which “constitutional morality” was discussed in the Constituent Assembly and related debates was in the realm of governance. It was never intended as a limiting principle for interpreting religion under Articles 25 and 26 or the rights flowing from them. Second, there is a danger in importing constitutional morality into these provisions. Constitutional morality would bring within its fold all fundamental rights, the Preamble, and the entire constitutional scheme. It pervades the whole Constitution.
Justice Ahsanuddin Amanullah: Before we move, can you assist us on whether the word “morality” in this context can include “constitutional morality”? Constitutional morality may be a fluid concept. Morality per se may be more stable, but constitutional morality can be dynamic and evolve with context. Even if one were to read constitutional morality into Articles 25 and 26, given the Constituent Assembly debates, would it not still ultimately lead to the same conclusion, that it has to be understood in a certain way?
Kaul: I cannot put it better. I agree. In fact, during the Constituent Assembly debates, when the precursor to Article 26 was being discussed, the words public order, health and morality were not originally present.
Justice Nagarathna: When a legislation is tested on the touchstone of public order, morality and health, and is enacted under Article 25(2)(b), it cannot be said that the right of a religious denomination will always prevail. Those rights are themselves subject to public order, morality and health. That can form the basis of social reform or social welfare legislation.
Kaul: My respectful submission is that even Devaru does not say that one provision is subject to the other. It speaks of harmonious construction. In all matters of religion, ordinarily Article 26(b) will have full play, except in the limited context of entry into temples, because otherwise Article 25(2)(b) would be rendered nugatory.
Senior Advocate Neeraj Kishan Kaul: But Devaru does not lay down, as a principle of law, that Article 26(b) is subject to Article 25(2)(b) in all situations. It only says so in a specific context. I will read one paragraph, which I have reproduced in my notes.
It says that Article 26(b) is subject to Article 25(2)(b) only in the context of entry into temples. Otherwise, both rights are coequal and of equal strength. In fact, it goes on to say that in all other religious matters, Article 26(b) should be given full play, except for the issue of entry into temples.
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.
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.
In yesterday's hearing, 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.
Live updates from the hearing today feature here.