Bench to resume post 2 pm

Justice B.V. Nagarathna: Please, with the passage of time in Indian society, what was once considered immoral or obscene is no longer regarded as immoral or obscene. That is the problem now in India. The problem in India is this. The standards that existed in the 1950s are not the standards today. You said that the standards of the 1950s are narrow-minded. It is not. What is happening today is being portrayed as open-mindedness, but that does not necessarily mean it is. Because now everything earlier is labelled as narrow-minded, myopic, and old-fashioned. This is the problem of Indian society today.

CJI: struggle of evolving society

SG: Tranformative constitutionalism. I have been hearing this. But never understood quite

Justice Nagarathna: not about transformative constitutonalism. That is a good thing.

SG: I am on the point that “morality” here means societal morality. I am not on whether the State can impose a particular view… not every law, whether on morality or otherwise, will have to pass constitutional muster. You do not need a judgment for that proposition.

SG Tushar Mehta: But the question is what “morality” means. Is it constitutional morality, or public morality, or societal morality? There is intrinsic guidance in the Constituent Assembly Debates as to how the framers understood this clause.

SG: Constitutional morality is not a ground for judicial review. Our former AG has said that it is an unfortunate concept and must die as soon as possible.

Justice Joymalya Bagchi: Constitutional morality governs secular life. In the religious sphere, what governs is the understood morality of the society, as reflected in the religion followed by a particular denomination or sect. So, can the secular character of the citizen and the religious belief of the citizen be merged in a secular democracy, or tested only on one touchstone, that is, constitutional morality, if the practice is otherwise socially accepted and in consonance with the cultural ethos of the nation? Societal morality…

Justice Ahsanuddin Amanullah: Mr. Mehta, you were just referring to Ajmer Sharif Dargah.... it is a denomination. ... it is a part or a section of a religion. Because, basically, Islam has Sufi thought, and that practice comes out of it, and then it gets protection. I am sorry, but merely because anyone can go there does not mean it falls outside the purview of a broader denomination of that religion. Why are we trying to interpret Articles 25 and 26 where the language is very clear, unless a particular factual situation arises as to whether that fact would be covered by Articles 25 and 26? The question is: what is the level of protection, to what extent, and in respect of what nature of activity? Unless we keep that in focus, I think there is no dispute. Otherwise, anybody may decide it in that way.

Justice Bagchi: You are applying the test in the wrong place. What is the test being applied to? Is it to the people visiting the institution or to the Mutt? I understood the ratio to be that the test is applied to the organisation of the group of persons who are managing the temple or the Mutt. Whether they have a common faith, whether they have a common organisation, whether they are chosen by the followers of the Mutt, and that they themselves are followers and bound by that faith. That is the viewpoint.

Justice Nagarathna on the Auroville judgment: Please keep the illustration separate. Let us see Aurobindo. Is that philosophy a religious denomination? It can be a denomination but not religious.

SG: It is religion. This may be your ladyship's honest and informed view but what is relevant is my view as a follower. Whether I believe that to be religion.

CJI: we get your argument. It is because Aurobindo's followers believe that the view they follow is a religious view, it carries all the ingredients of a religion; therefore, they themselves carve out to be an exception or denomination, therefore others cannot impose on them that no, no, you are not a religion. If someone says I follow Aurobindo right from morning since I get up till I sleep. I follow his idea, his philosophy, his guidance and treat him as my supreme being then who are you to tell me that it's not religion. This is your submission.

Justice Nagarathna: It can be freedom of conscience . But cannot come under religious denomination..

SG: it would be a religious denomination... Else under 26(b) state can say for these followers something is not allowed.

Justice Nagarathna: but it's not a religious denomination

SG Tushar Mehta: It cannot be done under a statute or by the State. By this very logic, tomorrow, a Shankaracharya can be removed by the State, or an Archbishop can be removed by the State. These matters must emanate from within the religion, from the society, from the denomination itself. They cannot be State-controlled. That, in my respectful submission, is true secularism. If religion does not interfere with the State, the State must also not interfere with religion. Otherwise, this is the danger.

Your Lordships are a nine-Judge Bench, and the question is whether Articles 25 and 26 will be read in the manner they have been interpreted in Seshammal judgment.

Justice Nagarathna: Anyone well-versed with agamas can be selected, that's what the judgment says.

SG: The denomination can say.

Justice Sundresh: There is no denomination there.

SG: Let us just not go by that temple only.

SG: In a public temple, the appointment of a pujari, who requires specific expertise, qualifications, and knowledge of the Agamas, can never be left to the government, my Lords. A government of non-believers, or even of believers, cannot substitute this. This tradition is rooted in faith and belief. It is how the religion has evolved. And the denomination would trust only a person with the necessary qualifications and expertise to perform rituals and touch the deity.

SG Tushar Mehta: Now this was the case of a Tamil Nadu temple, and there is a position of Archaka. Archaka, my Lords, in our parlance outside Tamil Nadu, would mean pujaris. Pujaris who go into the sanctum sanctorum deal with the deity, give bedding to the deity, change the clothes, and perform all rituals. And there was a provision in the belief system, in the faith system, and in the religious practice that the Archaka would be hereditary. Because one Archaka would teach the particular methods of worship, how to pray, how to perform rituals, to his son and so on, because precise mantras have to be recited at particular times of the day, at particular events, for example, when the deity is taking food, when the deity is put to rest, and so on. So this goes from generation to generation. These are not abstract propositions. The Agamas provide for detailed procedures that are taught to the successor. This is called the mode of succession.

Now, my Lords, the Tamil Nadu government enacted a law saying that they would appoint Archakas, because the appointment of an Archaka is a secular activity, though he may be performing religious functions. Mr Palkhivala appeared. I have read his submissions. Beautifully put. This is how the Court records it, and correctly so.

I am told Mr. Gopal Subramaniam’s father also appeared in this matter. According to the Agamas, the appointment, the mode of succession, the qualifications, these are all matters of religious practice. Whether by nomination or hereditary succession, it is part of the religious framework. There may be situations where qualified persons are called, interviewed and appointed, but even that is part of the religious structure and should be left to the denomination. That was the argument. He therefore contended that the priest is integral to the religion… The Court notes that the priest or Archaka, when appointed, performs essential religious functions of the deity. He is not the spiritual head of the institution, but he has a more direct role in relation to the deity than even the spiritual head, in terms of performing rituals.

Now the State says that heredity may not be necessary, that qualifications can be prescribed, knowledge of rituals can be ensured, and a transparent selection process can be adopted. Therefore, they say it is a secular activity.

SG: But here, in the Sardar Syedna Taher Saifuddin Saheb v. State of Bombay case, the Court struck down the law, holding that Article 26(b) gives exclusive rights to the denomination, including the power to excommunicate.

Justice B.V. Nagarathna: But here, in the Sayedna case, they struck down the law, saying that Article 26(b) gives exclusive jurisdiction to a denomination to excommunicate anyone.

SG Tushar Mehta: My Lords, that was also rejected… but kindly see now… excommunication…

Justice Nagarathna ' Article 25(2)(b) and Article 26(b)… ultimately, the Court said that Article 26(b) will prevail…

SG: it will not…

Justice Nagarathna: They struck down that…

SG: yes but they upheld the practice…

Justice Nagarathna: Under Article 25(2)(b)… with the result… it was struck down… excommunication… it was struck down.

Justice Nagarathna: The approach of the court in such a matter must also be to determine essential religious practice through the lens of the philosophy of that religion. You cannot apply some other religion and say it is not an ERP. Ofcourse subject to public order, morality. This is about how the court examines this, not whether it has jurisdiction.

CJI: First, if something is there like witchcraft, cannibalism or human sacrifice, which shocks the conscience of the Court, then on the face of it, no further adjudicatory exercise may be required. We cannot replace ourselves with the expertise of subject experts. We are only examining how far such a matter can fall within judicial review. The moment there is such a kind of practice, the Court will simply say that it is contrary to public order, morality or health.

Justice Sundresh: If we try to find the case of this, you can adopt a hands-off approach. But to say that it is to completely denude the Court of jurisdiction… the issue is of void and voidable action. If its so violative like Sati etc..court can intervene..

Justice Sundresh : That is why the purpose of the legislature is there in Article 25. But that does not take away the Court's jurisdiction in an appropriate case.

SG Tushar Mehta: I never argue that, because that argument always fails against the jurisdiction of the Court. The Court is always zealous to protect its jurisdiction, and rightly so.

Justice Joymalya Bagchi: Witchcraft is considered to be part of religious practice. Would you or would you not have it as superstition? Your argument from there is that it is the legislature to take it up and prohibit any practice which promotes it. Let us say the court is approached under Article 32 saying that there is a religious practice of witchcraft and the legislature is silent. Cannot the court use the principle of unoccupied field to give directions for prohibiting such a practice, keeping in mind not going into essential religious practice, but on the beacons of prohibition like health , morality , and public order.

SG: it will fall under public order, morality, not because it is superstition. When Your Lordships are examining a jurisprudential doctrine, Your Lordships would normally not take extreme examples and test it. That is part of jurisprudential theory.

Justice Bagchi: But that is what we do ..we stretch it to absurdium and test it.

Justice Ahsanuddin Amanullah: Mr Mehta, you made it too simplistic. The Court has the right and the jurisdiction to hold whether it is superstitious. What will follow is for the legislature to decide how to deal with it. But then, in Court, you cannot say that whatever the last word is what the legislature decides. That cannot be…

SG Tushar Mehta: I have a slightly separate view. A secular court cannot decide a religious practice as mere superstition, because Your Lordships do not possess that kind of scholarly competence. Your Lordships are experts in the field of law, not in the field of religion.

Justice Amanullah: Then we have to classify those things which have that colour. When you come to court..we have to..

SG: Something religious for Nagaland may be a superstition for me. We are in a greatly diverse society. Maharashtra has black magic act..they may say that this is the practice prevalent in our area and that's why protect it under Article 25(2)(b).

SG Tushar Mehta: The question I pose to myself is this: how would the Court decide what is a superstitious practice? That is one aspect, within judicial review. But there is a more fundamental issue. Even assuming there is a superstitious practice, the answer is not for the Court to determine that this is superstition. Under Article 25(2)(b), it is for the legislature to step in and enact a reform law. The legislature can say that a particular practice is superstition and requires reform. There are several such statutes, laws dealing with black magic, prevention of such practices, and others. So, it would not fall within judicial review for the Court to classify something as superstition or religion, and then go further to examine whether it is an essential part of religion. That, in my respectful submission, is the position.

Justice MM Sundresh: The tendency, with respect, is to secularise in two different ways. One cannot say that religious practice is different from religious belief and then treat them as entirely disconnected. There has to be some connection. It cannot be a loose or remote connection. What is happening is that belief is being replaced, and only the practice is being tested, without reference to the underlying belief.

Senior Advocate Indira Jaising: I am in complete disagreement with the SG. I am the senior-most on my side. I will argue an hour.

CJI: There are a lot of lawyers who just want to replicate stuff just because live streaming is there and want to be on camera.

SG: Mr Dhavan's submissions contradict our submissions the most. I perhaps will have to give a rejoinder to Mr Dhavan. Others are arguing other nuances on the same line.

CJI: That will create complications for us also. Let Mr Dhavan wrap up what he has to say. We understand because of overburdening of this court we will not read written submissions.. but we wanted to utilise the summer vacations for it.

Senior Advocate Rajeev Dhavan: It is singularly impossible for us to be accommodated till tomorrow. You say you will read our written submissions. You won't. You are the most overworked judges in the world. We write written submissions to support our oral arguments, not the other way around. I have a great reservation about what SG argued.

CJI: Let SG complete and thereafter we will follow the order of seniority and hear you all.

Dhavan: Review petition is not being decided here. Then who is here for review petitions is irrelevant.

A 9-judge Constitution Bench of the Supreme Court is currently 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 Tuesday.

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 organizations before the apex court.

In November 2019, the Supreme Court pronounced its judgment on the review petitions but held that larger issues pertaining to the Essential Religious Practices Test, interplay between Articles 25 and 26 on one hand and Article 14 on the other and the conflict between the judgments in the Shirur Mutt case and Durgah Committee case will have to be decided by a larger Bench.

A 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.

Follow this page for live updates from today's hearing