Day 3 of Sabarimala reference hearing: Live updates from Supreme Court

ASG Nataraj: Exactly, because of SECTION 9 of civil procedure code, a new question where there is a divergence or a conflict requires to be resolved through the process of adjudicatory mechanisms. So to say that this cannot be answered by the court, it seems to me a very .... What happens when Samoradayas right as to religious practices are themselves challenged.. like have a fast before going to temple etc... who will decide.

ASG Nataraj: When there are competing claims.. evidence..

Justice Bagchi: We are on the forum and the forum is the court. Court will decide which is the sampradaya and what is the practice followed by them. A non-believer can also bring issues of religion before the court.

ASG Nataraj: With due respect, is that normally, when it comes to judicial scrutiny, whether this is a particular sampradaya, whether it is correct or not, whether it has to be followed or not, that cannot be addressed by an external court. That is what that is. This is not the first stage that the courts decide what is the sampradaya or what is the religious practice or the methods of religion administered by the sampradaya.

Justice Bagchi: The courts come into question when there is a conflict between these practices. The group states this is a sampradaya, whereas the other group states this is not a sampradaya, or a group states, or a member of the sampradaya itself says that this is not the form of worship. So here, the courts necessarily require...

ASG Nataraj: On the basis of evidence.

ASG Nataraj: So, while interpreting “denomination” or “section thereof”, we cannot keep in mind what prevailed in Ireland, or when they brought in the idea of the Irish Constitution or the Polish Constitution.

We have to keep in mind how they intended to introduce the concept of denomination into the Indian system. That is how it has to be understood.

For that purpose, kindly see how it was understood and how it was debated.

In fact, how it is understood in the original Hindi language, how it was expressed there.

Justice Amanullah: Okay, so you are saying that it includes not merely internal beliefs, but also the external manifestation of the beliefs, to practice and propagate it. Are you putting it in very plain terms that whatever is your internal belief, religious belief, the external manifestation of this should be protected?

ASG Nataraj: Yes.

Justice Amanullah: How can it be? It is fine internally, yes, that is yours. The moment your external manifestation affects the rights of others, then how can it be protected? That has to be tested.

ASG Nataraj: Subject to Part III. Part III immediately steps in.

Justice Amanullah: Then we cannot say that whatever internal belief you carry, you externalise it and that will be protected.

ASG Nataraj: The Article itself provides it is subject to. When you come to Article 25…

Justice Bagchi: Article 26 is not a citizen.

ASG Nataraj: Collectively.

Justice Bagchi: Collectively an organisation. Article 25 is of individuals. Without individuals there can be no Article 26. Article 25 is a larger issue. For practical purposes Article 26 is of a narrow spectrum management.

These are the words that have been carefully constructed. Just like the concept of an association or a trade union to represent the collective group.

Justice Bagchi: What you are saying is Article 26(1)(b) is a subset of Article 25(1).

ASG Nataraj: It is not a subset, but it can be an offshoot of an individual right collectively.

Justice Bagchi: Why I say subset is the word “maintain religious affairs” only relates to maintaining religious affairs, whereas Article 25(1) has a much expansive expression to faith and practice. And faith and practice is the larger field of which the subset is maintenance. And maintenance naturally relates to organisation. Yesterday I indicated to the learned Solicitor General that it is not the devotee, but the management whose rights are envisaged in Article 26(1)(b).

And therefore these should be harmoniously construed. Articles 25 and 26 will have to be harmoniously construed. And thereby Article 26(1)(b) is also subject to the reform legislation under Article 25(2).

But the next question is you were saying as is rightly said that if harmony is to exist for all parties how will you compatibly integrate Article 26(1)(b) with Article 15 or Article 14. That you have addressed that it can be done only by reading it under Article 25(1)

ASG Nataraj: Because Articles 25 and 26 are two faces of the same coin of religious right. One is relating to an individual right the other one relating to institutional right to form an association or to express through as a denomination.

ASG Nataraj: Finally, coming to Article 26.

Article 25(2) itself has two parts. The first part states that nothing in this article shall affect the operation of any existing law. The second part enables the State to make laws.

The expression “existing law” refers to pre-Constitutional laws, including customs and usages. Such customs and usages, if not inconsistent with Part III, are protected. The test is whether they are consistent with Part III.

Articles 25 and 26 cannot be read de hors Part III. Both are subject to Part III and are interconnected.

Article 26 cannot exist without Article 25(1), and Article 25 must be read in relation to Article 26. When they are read together, Part III necessarily applies. Although Article 26 does not expressly state that it is subject to Part III, Article 25 establishes that connection. Article 25(1) deals with individuals, while Article 26 relates to institutions.

Without individuals, there can be no Article 26. A denomination is formed on the basis of the collective faith and belief of individuals.

ASG Nataraj: On the scope and contents of Article 25(1): without reading in detail, Article 25(1) includes not merely internal belief but also the external manifestation of religion through practice and propagation. It has two facets—internal faith and its external manifestation. Both are equally protected.

Coming to Article 25(2), it operates as an independent enabling mechanism. Article 25(2) creates a distinct field of legislative competence for the State. It is not merely a restriction on Article 25(1), but an independent constitutional authorisation allowing the State to regulate secular activities associated with religion, to achieve broader societal objectives and transform society.

The object of Article 25(2) is to enable the State to eliminate social evils and bring about inclusive reforms.

Article 25(2) contains two independent components. First, it enables the State to make laws. Second, it provides for throwing open Hindu religious institutions to all sections of Hindus.

Article 25(2)(a) and 25(2)(b) are distinct. The first part concerns social welfare and reform. The second part concerns throwing open Hindu religious institutions of a public character to all classes and sections of Hindus. Both are independent and distinctly expressed.

ASG Nataraj: However, when it comes to regulation, Article 25(2) applies to both. This is the scheme of Articles 25(1), 25(2) and 26. It provides a well-balanced framework under the Constitution.

Kindly take my written note where I have pointed out the broad submissions. Starting from paragraph 2, I have identified eight salient aspects of the rights under Articles 25 and 26.

First, the scheme constitutes a three-tier mechanism—Articles 25(1), 25(2) and 26.

Second, the right under Article 25 is twofold: religious freedom, and the State’s power to regulate. Article 25(2) itself consists of two independent parts.

Third, Articles 25 and 26 must be harmonised. Neither provision is subordinate to the other.

Fourth, denomination must be understood in the Indian context. I will elaborate on this with reference to the Constituent Assembly debates.

Fifth, public morality is the governing standard, not constitutional morality as interpreted in earlier cases.

Sixth, determination of essential religious practices is unworkable in the Indian religious landscape. Given the diversity and plurality, the principle of essential religious practice cannot be uniformly applied.

Seventh, religious practices are to be internally assessed. External examination is impermissible. Judicial review on whether a practice is essential, and to what extent courts can enter into such matters, has a very limited scope.

Eighth, the deity’s right is an integral part of the devotee’s right, and is protected under Articles 25 and 26. If a devotee has a right, it relates to the deity; if the deity has a right, it relates to the devotee.

Therefore, Articles 25 and 26 are necessarily connected. If one has faith, one has a right under Article 26. If one has no faith, as a non-believer, one has no right under Article 26. Thus, Article 26 must be connected to Article 25(1).

ASG KM Nataraj: Religious rights under the Constitution are well-linked, protected and regulated under the scheme of Articles 25 and 26. There is a three-tier mechanism to protect, connect and regulate these rights.

The first part of Article 25(1) guarantees an individual right. The second part, Article 25(2), provides the regulatory mechanism. Article 26 relates to institutional rights. Thus, Articles 25(1) and 26 are interconnected. Article 26 is embedded in Article 25, and vice versa. When Article 26 is enforced, it essentially relates back to Article 25(1). Therefore, Articles 25 and 26 form interconnected mechanisms... granting rights to individuals under Article 25(1) and institutional rights under Article 26.

SG Tushar Mehta: There are instances of temples where men are not allowed. Because it is a Devi Bhagwati temple, there are certain faiths and beliefs attached. There are temples, details of which I have mentioned, where male priests are under a religious mandate to wash the feet of female devotees. There are temples like the Pushkar temple, the only Brahma temple in the country, where married men are not allowed.

There is also a temple in Kerala where the practice is that men enter dressed as women. As I have read in detail, they go to beauty parlours, and their female family members help them dress in sarees and other attire. Only males go there.

So it is not a question of male-centric or female-centric religious beliefs. In the present case, it happens to be woman-centric.

Secondly, there was a question regarding Articles 25 and 26 and their interpretation. The day before, I had substantially argued on this. Yesterday, when I began, I had said that I would take that up at the end; otherwise, I would not be able to finish the other issues. I could not get the time for that. I am not re-arguing. Substantially, I have answered it. The rest is in my written submissions. That is all.

Hearing starts.