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.

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.

The last hearing of the matter on April 23 saw divergent views from the Bench on whether pre-constitutional religious customs could be protected by Article 25(2) of the Constitution of India. 

Track this page for live updates from the hearing today.

Advocate Nizam Pasha begins submissions

Advocate Pasha: The reason we were constrained to file this intervention application is that a writ petition was filed before the Delhi High Court following the Sabarimala judgment. The petitioner, a law student who had come to Delhi for an internship, visited the Hazrat Nizamuddin Dargah and was prevented from entering the sanctum sanctorum, the small enclosure housing the grave. She claimed that this violated her rights as declared in Sabarimala. The relief sought before the High Court was a declaration that the practice of prohibiting women from entering the sanctum sanctorum of the Hazrat Nizamuddin Dargah is illegal and unconstitutional.

This raises the issue which has been troubling the Court, namely, whether a complete third party, a non-believer, can enter a place of worship and demand that matters of faith must yield to their individual claims. This is a stark example of such a situation.

Pasha: By way of background, a dargah is a place where a saint is buried. Within Islam, there are differing views on the status of saints after death, but in the Sufi system of belief, there is deep reverence for the place where a saint is interred.

It was argued in the writ petition that since people of all backgrounds visit places like the Ajmer Dargah and the Hazrat Nizamuddin Dargah, they cannot be considered religious denominations. I will address that issue later. However, it is important to note that in Dargah Committee, the Court proceeded on an assumption without deciding the question of denomination, whereas in Devaru, it was clearly held that the mere fact that non adherents are permitted entry does not take away the denominational character of a place of worship.

The Sufi system of belief in India consists of several major orders, including the Chishtiya, Qadriya, Naqshbandiya and Suhrawardiya. The present case concerns the Chishtiya order.

Pasha: This system, I submit, clearly constitutes a religious denomination. If one looks at the teachings attributed to Hazrat Nizamuddin Auliya, there is emphasis on adherence to Islamic practices such as roza, namaz, hajj, zakat, and above all, faith.

Advocate Pasha: So it comes to Articles 25, 26(b), and 25(2). In this formulation, the right of the collective to internal management is what, in my submission, is covered under Article 26(b), and the right of actual practice is covered under Article 25.

What lies at the cusp of this outward manifestation of practice and internal management is entry. Because if one looks at it from this inside-outside perspective, the point at which the inside and the outside meet is entry into a religious place. That is why the question of entry is not simply under Article 25 or under Article 26.

The Constitution makers consciously chose to keep a certain aspect of entry, namely a policy prescription or constitutional imperative under Article 17, built into Article 25(2), and only to that extent.

For that reason, as Devaru itself says, the right to regulate entry is part of management. However, insofar as entry of oppressed classes into places of worship and the imperative of Article 17 are concerned, when read with Article 25, the second part of Article 25(2)(b) becomes a caveat to, or a takeaway from, the right to religion itself.

Justice Ahsanuddin Amanullah: This is the aspect of protection. The right to manage cannot mean the absence of structure. For everything, there has to be a modality. There cannot be anarchy. Take a dargah or a temple. There will be elements associated with the institution, the manner of worship, and the sequence in which things are done. Somebody has to regulate that. It cannot be that everyone says I will do whatever I want, or that the gates remain open at all times without any control. So the question is, who is that body that manages? That is where protection comes in, because regulation is necessary.

At the same time, it cannot transgress constitutional limitations. There cannot be discrimination on the broad constitutional parameters. But every institution must have norms. And those norms cannot be individually determined by each person. There has to be a recognised body which lays down those norms, and that is what is granted protection.

Senior Advocate Madhvi Divan:... if all persons are equally entitled to the freedom of conscience, the right to practice, propagate and profess, then how are these two provisions to be read together? All persons are equally entitled. That means that irrespective of differing religious affiliations, each individual is entitled to the support of institutional rights. Let me explain this. It may be that I belong to a group which does not fall within what is described as a denomination in the sense of a common faith, a common name and a common organisation, and I emphasise organisation.

Divan: What if my group does not meet that test, but my neighbour’s group does. How then will our respective rights to freedom of conscience and to practice and propagate religion be worked out. Because even within the range of rights under Article 25, the freedom of conscience is the most personal and private. It is an individual right at its highest level.

So the question really is whether the enjoyment of that individual right can be made contingent on whether or not one belongs to a recognised denomination under Article 26.

That, in my respectful submission, would create an imbalance, because Article 25 guarantees rights to all persons, whereas Article 26 protects only denominations.

Justice BV Nagarathna: If there is polarisation, then the state will step in under Article 25(2)(b) for social reform.

Sr Adv Divan. Polarisation is in the context of competition.. I am the denomination and you are not.

Justice B.V. Nagarathna:.... What this means is that, in respect of religious practices followed by a denomination, its autonomy to carry them out is protected under Article 26(b). The State or the Court cannot ordinarily say that this is not a religious practice and deny protection. The autonomy is what is safeguarded under Article 26(b). But at the same time, if under the guise of that autonomy, something is done which affects society at large, then Article 25(2)(b) enables the State to step in.....that is how the two provisions are to be harmonised.

Advocate Nachiket Joshi: What we are submitting is that Article 26 protects the rights of all religious denominations equally. Those rights have to receive equal protection, including for Muslims.

The balance that has to be struck is brought out in T.M.A. Pai. If Your Lordships may kindly see, at page 2198 of the compilation, there are two lines which make this distinction clear.

T.M.A. Pai brings out this fine distinction. That passage has been referred to, though not always specifically quoted.

Joshi: construction should be made to give expansive meaning so that all religious denominations are covered.

Advocate Ashwini Upadhyay: My Lords, every action has a reaction, and every judgment has ramifications. Coming from an engineering background, I tend to look at this through a structured lens, what will happen if the argument is accepted, and what will happen if it is not. What are the long-term consequences?

Whether, over the next twenty five years, we move towards a more integrated and developed society, or whether the outcome leads to deeper fragmentation. These are considerations which, in my respectful submission, cannot be ignored. If one looks at Articles 25 and 26, they are among the most restricted fundamental rights. No other fundamental right is hedged in this manner.

Upadhyay: Article 25 itself is subject to public order, health and morality. It is subject to other provisions, including Articles 27 and 28, and other parts of Part III.

Article 26, though couched differently, is also subject to public order, health and morality, and must be read in harmony with the rest of the Constitution. It is also significant that the right to propagate religion is not something which many other jurisdictions recognise in the same manner.

Even in countries from which we have drawn constitutional inspiration, that right has not been extended in this form, either to denominations or to individuals. So, the framework itself indicates that these rights were never meant to be absolute, but were consciously made subject to constitutional limitations.

Advocate Ashwini Upadhyay: My Lords, the central submission I am making is that there is a fundamental distinction between what we understand as dharma and what is termed as religion. I have identified several differences, but I will summarise briefly.

Dharma, in my respectful submission, is inclusive. Religion, as it is commonly understood, can be exclusive. Dharma unites society, whereas religion, at times, has been a source of division. That is why I have not relied on earlier judgments which do not engage with this distinction. I have also attempted to trace the conceptual basis of our constitutional framework.

The use of expressions such as “My Lord” has its roots, in my view, in older systems like Panch Parmeshwar, where collective decision-making reflected a higher normative order.

Justice R Mahadevan: You are going beyond the subject and issue being discussed by everyone of us. You said there are 52 alphabets in Sanskrit, one of the world's finest languages. Similarly, Tamil has 247. Don't go into all those areas. Confine yourself to the point in issue

Justice Nagarathna: In Kannada, there are 52. See all (Indians) are equal. Don't go into superiority in the court of law please," added Justice Nagarathna.

Justice Amanullah: We have to stop you. You are in a public platform.

Upadhyay: My submission is that Articles 25 and 26 deal with freedom of religion, but they are among the most restricted rights in Part III. Article 25 is expressly subject to public order, health and morality. It is also subject to other provisions, including Articles 27 and 28.

Article 26 is similarly subject to public order, health and morality, and is impliedly subject to other fundamental rights. Further, the Constitution grants a right to propagate religion under Article 25, which is a distinctive feature. Many jurisdictions from which we have drawn inspiration do not recognise such a right in the same manner.

CJI: Come to your conclusions.

Ashwini Upadhyay: Article 25 is expressly subject to other fundamental rights. Article 26 does not confer a right to propagate religion on denominations.

Upadhyay: The intent of the framers, in my respectful submission, was not to extend the right of propagation to religious denominations, particularly in light of historical experiences around Partition.

Winding up his submissions, Upadhyay told the Court that the Sabarimala temple has a distinct sanctity, which should be respected.

There are lakhs of mosques, but the Mecca Medina have distinct sanctity. There are lakhs of churches, but the Jerusalem church has a distinct sanctity. Similarly, there are 1500 Sabarimala (Ayappa) temples but this one (the Sabarimala hill temple) has a distinct sanctity.

Upadhyay: Articles 25 and 26 confer freedom of religion. Other fundamental rights, such as Articles 14, 15, 16, 17 and 21, embody broader constitutional values.

My submission is limited to this, that the Court may interpret Articles 25 and 26 keeping in mind their express and implied limitations.

Advocate Fauzia Shakil: My Lords, I will place a few structured propositions. First, power cannot be exercised in a manner that obliterates fundamental rights. The concept of social welfare must be understood in the context of public order, morality and health, which are the constitutional limitations expressly recognised under Article 25.

Social welfare and reform cannot be used as a basis to reinterpret or override the substance of religious freedom beyond what the Constitution permits. The extent of any interference must still be guided by these constitutional parameters.

SC: Are you suggesting that social reform cannot touch the substance of the right at all.

Advocate Fauzia Shakil: Not entirely, My Lord. But the interference must remain proportionate and anchored in public order, morality and health. It cannot be used to extinguish the individual right under Article 25(1)

Shakil: Further, the power cannot be exercised to give effect to what is claimed as an essential practice if, in doing so, it destroys the very right under Article 25(1). Such legislation would not be saved merely by invoking the Directive Principles. My second submission is on what is protected under Articles 25 and 26. These are rights which are bona fide and conscientiously held by members of a community. Where the community itself is divided on a practice, the Court is then called upon to examine whether the belief is indeed sincerely and conscientiously held. That exercise cannot be avoided.

SC: That would require the Court to enter theological questions

Advocate Fauzia Shakil: To a limited extent, yes, My Lord, but only to assess the genuineness of the claim. My third point is on locus. The petitions must be by persons who are actually aggrieved. It should be made mandatory to plead that a personal right to worship has been violated. If one looks at precedent, with the exception of cases like Sabarimala and Triple Talaq, where this Court entertained petitions of a broader nature, most cases under Articles 25 and 26 have involved direct grievances.

Hearing to resume post lunch

Hearing resumes.

Intervenors making submissions.

Advocate: Articles 25 and 26 also encode covenants describing and determining our religious identity.

If My Lords were to look at the Hindi Constitution, in Article 26, “religious denomination” is called “pratidharmik sampraday or uske kisi anubhav.” This definition is wide enough that, on one hand, it protects formal worship as seen in the Ramakrishna Mission case, and on the other hand, it protects indigenous practices and unique practices of worship of prakriti and nature, as seen in the Niyamgiri Hills case.

Unlike the present understanding of denomination, which is seen in a formalistic sense, the determination of religious practices has evolved in six phases.

What started from Shirur Mutt and Ratilal Panchand on essential religious practices has now reached constitutional morality in this case.

Point number four of my submission is that the evolution of the law in the cases mentioned, below they submit, has reduced the right and denuded the right of the community to determine its own practices, which has been recognised in Shirur Mutt and Ratilal Panchand, thus requiring reconsideration to bring it back to the hands of the community.

Advocate: My definite case is with respect to this Sabarimala temple. This temple was not originally a Hindu temple. It was a Buddhist pagoda.

The name “Shibir” means training. Shabarimala was a training centre for Buddhists on the top of the hill. That is how it came to be known as Shabarimala.

Even today, the Dalai Lama’s palace is also referred to as Shabarimala.

There was a time when sixty to seventy percent of the people of Kerala were Buddhists.

Thereafter, with the advent of Vaishnavism and Shaivism, and the Bhakti movement led by Shankaracharya, Buddhism declined in Kerala.

However, this structure, being on the top of the hill, remained.

As Your Lordships will see, it was originally a Buddhist pagoda, and later it came to be converted into a temple, and the hill itself became associated with the temple.

Advocate Eklavya Dwivedi: My Lords, I will confine my submissions to one limited aspect. I am appearing in IA No. 99340 and I am confining my submissions to the issue of the subjection of Article 26 to Article 25(2).

In my submission, Article 25(2) is inapplicable to Article 26, and I say so for the following reasons.

At the outset, if one were to compare the language of the two Articles, along with the constitutional debates, it is evident that the framers intended to vest distinct rights in religious denominations and to keep them separate. This is because religious denominations have historically been a closed set, private and exclusive in nature, and no one could claim, as a matter of right, that membership should be extended to them.

More importantly, the language in which Articles 25 and 26 are couched, if one juxtaposes the two, contains express and implicit indicators that Article 26 was intended to be immune from Article 25(2).

Firstly, Article 25(1) contains a “subject to” clause, which makes it subject to other provisions of Part III. Article 25(1) would therefore be subject to Article 26 as well. However, this “subject to” clause is conspicuously absent in Article 26.

Dwivedi: Secondly, if one looks at the subcommittee report on fundamental rights, the original formulation contained a clause that the rights of religious denominations were to be read consistently with the provisions of the chapter. In subsequent iterations, that phrase was dropped, and for good reason, because the framers did not intend to frame Article 26 in a manner that would lead to a contradiction. It cannot be that Article 25(1) is subject to Article 26, and at the same time Article 26 is also subject to Article 25.

Justice BV Nagarathna (to one of the intervenors): if a temple wants to have an annual festival, like a car festival or similar event, it cannot block all the roads around it. That is an issue of public order. It has nothing to do with the religious activity itself. You may carry on your religious activity, but not in a manner that disrupts public order.

In such situations, the State can step in to regulate. I am only referring to activities which are not religious in nature.

The autonomy under Article 26(b) is with respect to religious affairs and practices. The denomination can decide what constitutes its religious practice, and the Court cannot sit in judgment over that.

If a denomination says that a particular form of worship is to be followed in a temple, that autonomy is protected. The Court cannot interfere and say that such a practice cannot be followed.

However, while exercising that autonomy, if issues of public order arise, or if secular aspects are affected, then the State can step in. There has to be a balance.

Advocate Mathews Nedumpara: The concept of judicial review is very much there. But the validity of judgments is founded on the fact that judgments of the Court receive respect and acceptance out of reverence, not because they operate as res judicata against everyone.

When I challenge a statute before Your Lordships and Your Lordships declare that statutory provision or statutory instrument unconstitutional, the people of this country accept it out of reverence. It is not because it is binding on those who were not parties before the Court or because of res judicata.

The fundamental principle is that I am not bound by a judgment in a proceeding to which I was not a party at all. The reason is that it is against the first principles of natural justice to bind a person by a proceeding where he had no opportunity to address the Court.

Therefore, my submission is that the judgment in Sabarimala, by this Constitution Bench, is one rendered void and is liable to be recalled or reviewed ex debito justitiae. That concept is not confined only to certiorari, where a tribunal acts without jurisdiction. Therefore, this petition is liable to be allowed. I am only speaking about Sabarimala, as a judgment rendered void.

Advocate Nedumpara: The second proposition, and I will be brief, is this. I have before me Your Lordships’ judgment in Trimurti Fragrances Private Limited, where Justice Surya Kant and Justice M. M. Sundresh were parties. Your Lordships have taken the view that numerical strength is the determinative factor.

I have a right to dissent. What is a precedent? It is a principle which a court of competent jurisdiction, a superior court, has evolved where none existed, or a resolution of an issue which was before it, or a principle which has been repeatedly reaffirmed. So the precedential value of a judgment lies in the principle and not in the numbers.

That is in contrast with res judicata. In res judicata, if a bench of five judges calls an innocent man guilty of murder and sentences him to death, he may be innocent, but because the Court has found him guilty, he will be hanged. So a wrong decision, right or wrong, is binding between the parties. If there is a division in the bench, what is determinative is the numerical strength of the majority.

But when it comes to precedent, the principle is different. Across the world, except in India, this is understood differently. In India, as noted in paragraph 44 of Andal’s case, we follow a jurisprudence where the precedential value of a judgment is determined based on the strength of the bench and the extent of the dissenting bench.

I respectfully submit that this is incorrect. I emphasise this because, with the greatest respect, I consider many constitutional judgments of this Court to be fundamentally wrong. The first is Kesavananda Bharati. In three sentences, I can demonstrate how flawed it is. I say this because Kesavananda Bharati is referred to in many contexts.

Another counsel: Temples in Kerala are different from temples in other parts of the country. There is a mythological background to this. It is said that Parashurama threw an axe from Gokarna, which fell near Kanyakumari, and that land came to be known as Kerala.

He then had two tasks. One was to make the land fertile, and the other was to make it holy. To make it fertile, he invoked the blessings of Vasuki, the serpent king, who is believed to have made the land fertile. To make it holy, he consecrated 108 Shiva temples and 108 Devi temples.

As far as Kerala temples are concerned, it is believed that divinity is infused through ritual. Divinity is not inborn. In some other temples, such as Tirupati or Ayodhya, even if the temple is closed for a period, the divinity is not considered to be lost.

However, in Kerala temples, unless the prescribed religious practices and Tantric rituals are performed daily, it is believed that the divinity will diminish. That aspect may kindly be borne in mind.

Senior Advocate Indira Jaising to commence submissions tomorrow.

Bench rises.