Day 4 of Sabarimala reference hearing: Live updates from Supreme Court

Sr Adv Singhvi: It can be said that this place only Hindus can come. This place only Muslims can come. It is only like that. That is not violative of Article 16(1) and 16(2). Consequently, Article 16(5) is intended to be an exception to Article 16(2) and other parts, inasmuch as such religious or denominational institutions can restrict, by virtue of Article 16(5), appointments to offices or governing bodies.

Article 16(5), however, does not immunise, this is my submission, from the charge of discrimination those appointments on other discriminatory standards of race, caste, sex, descent, place of birth, provided such persons are of the same religion and denomination as the institution. So suppose only Hindus are allowed, but then the institution says only Hindus from the north will come, not from the south. Only Hindus who belong to a particular denomination will come. That you cannot do. Religion is immunised, not the others. At a social level, you cannot be so discriminatory.

CJI: so there can be discrimination within denomination or within the same sect?

Singhvi: I would respectfully give a nuance to what Mr Vaidyanathan argued, a little differently. Now, this will be required for, again, kindly go to that. Seshammal is significant for the discussion of the principle that despite numerous rituals and ceremonies of the Hindu religion, which may have little nexus with objective third-party reality, rationality and objectivity, they cannot be dismissed on that basis. That is the ratio of Seshammal.

Now, Mr Vaidyanathan said that Article 16(5) was not looked at, and therefore Seshammal would have been overruled. He cited Article 16(5). This is a short digression on that, in my submission.

I want to harmonise Seshammal with Article 16 and Article 16(5). Yes, kindly hand over it. This is the divergence that happened in three or four places only because it is necessary. So I am taking a little different view. I am suggesting that Seshammal can be harmonised with Article 16(5) and the rest of Article 16.

Senior Advocate Abhishek Manu Singhvi: First, religion is a set of beliefs and practices followed by a group, sect, or denomination with a broadly similar identity. While Article 25 clearly vests in an individual the right to profess, practise and propagate religion, such individual rights cannot be allowed to extend into an area which encroaches upon the mass of individual rights of all other adherents of that religion or denomination. This is just a summary. I will be elaborating these submissions in a moment.

Second, the beliefs and practices of the community are to be judged by the specific beliefs of the community. The court is bound to accept the belief of the community, provided it is genuine and exists, is not fanciful, nor imaginary. It is not for the court to sit in judgment on that belief.

Third, it is impermissible to add, modify or subtract from the specific constitutional text. Accordingly, the additional derogation, or so-called derogation, of essentiality as engrafted by some judgments is entirely impermissible. This will be dealt with, but I will only deal with that part of my note which has not been dealt with. Those cases have not been dealt with. I will not repeat those.

Fourth, the permissible restrictions or derogations for the right to practise, profess and propagate religion found in Article 25 were arrived at after detailed and meticulous deliberations in the Assembly. Any other explicit or implied dilution of the right by interposition of other judicial restrictions would break down the delicate and intricate system of checks and balances envisioned by the framers.

Last, the rights of persons under Article 25 are to be read harmoniously with the phrase “other provisions of this Part”. So one cannot lead to the vanishing point of the other. That is going to be my submission.