Sabarimala reference hearing: Live updates from Supreme Court - Day 11

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 cases, including the case concerning whether women of menstruating ages 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.

Dozens of review petitions were filed questioning the correctness of this ruling. 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 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.

On April 23, the Bench briefly debated on whether pre-constitutional religious customs could be protected by Article 25(2) of the Constitution of India. 

On April 28, the Court warned against making arguments that could project any one religion or Indian language as superior to others. 

In the last hearing of the matter, the Court observed that genuine women devotees of Lord Ayyappa may wait till they cross the age of 50 years to visit the Sabarimala temple. The Court also said that it does not want to play any part in the annihilation of a religion while interpreting the scope of religious freedoms on India.

Track this page for live updates from the hearing today.

Adv for Young Lawyers Association: There were four articles in the newspaper in the month of June 2006. Kindly see.

One was by Barkha Dutt. Then there was “Touching Feet and Attracting Touches a Deity and Causing an Uproar” by Sherwani Pandit. Then the third one was “Keeping the Same Losing Our Religion.” This was the third by Veer Saraswati. And the fourth one is very important, “The Sex Slump Felt Sabarimala.”

CJI: okay so it was based on press reports

Justice Nagarathna: How does a juristic body like yours have a belief? This is for an individual. You don't have a conscience

Justice Aravind Kumar: who is your president ?

Adv: Naushad Ali

Justice Nagarathna: How is he a believer? Justify how you clarify juristic point.

Justice Kumar: Has your organisation passed a resolution to file a PIL? Has your president signed it?

Adv: there was a threat to the petitioner and police protection was given.

Justice Kumar: come to the point.

Adv: Justice Dipak Misra has not allowed it at all...there were objections..

CJI Kant: Please don't take judges names like this. He was a CJI. You can say the Supreme Court said this... And answer the simple question.

Adv: no there was no resolution

Justice Sundresh: This is nothing but an abuse of the process of law, that too before a nine-judge constitution bench. Go through the issues and finish. We don't want to embarrass you further.

What did you file the PIL? What good has come out of it? Justice Nagarathna

Adv: I will address all of it.

Adv for India Young Lawyers Association: This particular reference was not maintainable. But there are other cases I would like to highlight.

CJI: You can come to page 33.

Adv: We have to bring to Your Lordships’ notice what judgments have already been passed, whether for review or not, so that the reference is not maintainable. Three judges are referring the matter. The speaking order does not refer this matter to a nine-judge bench. The speaking order says that the matter is referred to a seven-judge bench. That was the understanding given to our Honourable Bench as well.

In this context, the decision of the seven-judge bench of this Court in Commissioner, Hindu Religious Endowments, Madras versus Shirur Mutt, holding that what are essential religious practices of a particular religious denomination should be left to be determined by the denomination itself, and the subsequent view of the five-judge bench in Durgah Committee versus Syed Hussain Ali, carving out a role for the Court in this regard to exclude what the Court determines to be secular practices or superstitious beliefs, seemed to be in apparent conflict requiring consideration by a larger bench.

This reference order has not been registered as a reference case as per Supreme Court rules: Adv

Justice Bagchi: if you go through the SC order..the power of CJI to make a reference was traced to Article 32 as per a Supreme Court decision since such a power is not subject to Supreme Court Rules.

Adv: What are the essential characteristics of a religious denomination? Sabarimala is not to be raised here. Still it has been done.

Adv: Justice Gajendragadkar had stated that since religion was age-old and if a belief is an age-old belief and then turns into dogma...these turn into superstitions due to the passage of time.

Adv: If tomorrow I build a temple like the Khajuraho temple at my place, then others will object...

CJI: if you don't know anything about a temple.. please do not refer to all of them. Please don't waste our time. Just proceed and finish.

Adv: Religious institutions carry out several activities such as rituals and ceremonies. Without participation in them, one may not be able to fully practice religion. As has been noted in academic writings, religion has both a personal and an institutional aspect. While individuals may pray in their homes, throughout history people have also worshipped in temples, churches, mosques and similar institutions. In practice, personal religious life is inseparable from the institutional dimension.

A person may legitimately complain that their freedom of religion is denied if private worship is allowed but public worship is restricted. Articles 25 and 26 recognize these two aspects. The right to practice religion therefore includes the right to enter public religious institutions. This right is not confined to citizens but extends to all persons, irrespective of faith. It is my submission that a person can, as a matter of right, enter a place of worship of another faith, subject to complying with the rituals and practices followed there. The Constitution does not confine a person’s religious freedom only to their own religion.

Justice BV Nagarathna: This is quite serious. The ones who have faith in the deity will perform all that is needed. But someone who says will break all Niyam (rules) that cannot be encouraged by this court. We are not in superstition. People who did not have faith and belief in that deity, you are saying allow them to enter. You are not a true believer !

CJI: Mr. Gupta please confine yourself to legal arguments. We will hear you as a historian on some other occasion.

Gupta: constitutional morality is the law of the land now.

Justice Karol when he was in Tripura, held that animal sacrifice was not an essential religious practice after the Sabarimala judgment.

Adv Gupta: The Hindu religion is very liberal. You cannot even define it. Whether you call it Sanatana or Hindu, you cannot define it by any expression. Or I can say that Hindu religion is the abstract of all religions. You come to and you will get solace. If you dont agree with the tenets of Islam or Christianity or any other religion, you come to me. Hindu religion is that liberal. It has very contrasting ideologies. It is getting rid of violence day by day. It is a way of life. There are no fixed rules. As my lordship said, I might not know much about lord Ayyappa but I do know it is a Hindu temple. That much I know.

Gupta: then CJI Dipak Misra made it very clear that even if you (Indian Young Lawyers' Association) seek to withdraw this petition, we will not allow you because it is a court matter now. I am assisting your lordship.

Justice Nagarathna: Mr Counsel, since you're referring to the learned former Chief Justice, with great respect, rather than ensuring there was security provided to the advocates, he could have ensured that there was no need for a security threat at all by not entertaining this petition. With great respect we are saying this.

Justice Sundresh: we have heard you graciously and we are not saying much more because we are sitting in a constitution bench but this is an abuse of the process of law.

CJI Kant: your best position would be for this to be a suo motu petition de jure filed by the Association.

Justice BV Nagarathna: it is easy to get articles written just for the sake of filing PILs. We are very much aware. We are entertaining PILs for people who are in genuine need of it. Not for getting articles written in the newspaper.

CJI Kant: This is not even an article. It is a misconduct by an individual for which there are Penal provisions. The court's reaction should have been to ensure action is taken in accordance with the law. That is all.

Justice Nagarathna: Every day, my lord the Chief Justice receives hundreds of letters. Can all those be converted to PILs?

Gupta: Once a court takes cognisance of the PIL, then it becomes a court matter.

Justice Nagarathna: public interest litigation has been private, paisa, and publicity interest.

Senior Advocate Darius Khambata: We are all trying to solve an issue that applies to everyone in this country. It should be a collaboration and not a confrontation. This is a monumental task. I have several points where I agree with Solicitor General and my friend Subramanium.

Khambata: I represent a Parsi Zoroastrian woman who married a Hindu man under the Special Marriage Act. Her parents are residents of Gujarat. One day, she found that someone in her position was being denied entry to certain places of worship, including for the funeral rites of her parents. She filed a writ petition being concerned that the same thing might happen to her.

Khambata: I am a devotee, i have not forsaken my religion, i am a believer. Just because I have married, that is not a crime. But the Gujarat HC said that due to the marriage, even though it is under SMA, she is deemed to have converted. Please consider the ramifications of this.

Khambata: Today, every anti conversion law is based on conversion by inducement, allurement, force. All that will be wiped out if there is deemed conversion by the very act of marriage itself. It is a far-reaching judgment. It will not apply only to Parsi Zoroastrian ladies, it will apply across the board. With due respect to the Gujarat HC, the dignity of women is seriously undermined. This would violate every right under Articles 14, 15, 16, 21

Khambata: I have set out that this is a trust that is for the benefit of the Zoroastrian community, and it has no prohibition of persons who intermarry with any other religion.

I have extracted two findings from the Gujarat High Court judgment. First, that there is no prohibition on women who are born Parsi Zoroastrian married to non-Parsi for continuing to profess and practice the Parsi religion. Second, there was no material shown to establish that entry of a non Parsi to an Agyari (fire temple) would violate integral part of Parsi religion. This remains untouched by further materials.

Khambata: There is no such principle under the Zoroastrian religion that women are to be excluded from intermarriage. For over a 100 years or more there is a practice that Parsi Zoroastrian intermarried men and their children are freely permitted entry. It is purely a case of discrimination. If there was any such prohibition in the religion, it would then be for both genders. There is no material produced by them to show that this prohibition applies to women only. Zoroastrianism is a rig vedic religion. And it is the first mono theistic religion ever. All the Abraham's religions take a lot of their theory from Zoroastrian religion. Heaven and he'll, good and evil, day of judgment, all these are Zoroastrian concepts. But the genesis is rid vedic.

Khambata: Zoroastrianism has been described by great scholars as a religion of free will.

Justice Nagarathna: so marriage is the basis of discrimination only if it is a lady?

Khambata: yes. This is a man made imposition on an otherwise progressive and great religion.

Khambata: There is a Bombay HC judgment which concluded that the Zoroastrian religion permits conversion, but that since the beginning, they never attempted to convert anyone to it.

Khambata: Zoroastrians have been wiped out elsewhere but not here. This is primarily due to the Hindu religion's tolerance. And voluntarily the Zoroastrian community has decided not to convert anybody to their faith. This is a forward-looking community. There is no such uniform practice among Zoroastrians in India prohibiting intermarried women. It is a new trustee who decided to impose their personal views and predilections. To that extent, some element of judicial review is required in this case.

Hearing to resume at 2pm.

Sr Adv Khambata explains the doctrine of merger.

Justice Nagarathna: If two parties are Hindus they get married under hindu marriage act. But if parties are of another religion, then there is a special marriage act

Sr Adv Khambata: The special marriage act of 1872 did not permit Hindus to get married under it at all.

Senior Advocate Khambata: But the 1954 act permits that. We have parsis marriage and divorce act. But if they are marrying with another religion then special marriage act.

Senior Advocate Khambata: In fact, the judgments cited show that this English doctrine of coverture was never accepted in Indian law. It has never been part of our legal system. Even in England, it is no longer the law. So to revive it in this manner would not be justified.

Justice Nagarathna: So, the right under Article 25(1) is a right by birth and cannot be taken away by marriage.

Justice Bagchi: The bigger question is that the majority view proceeds on the assumption that the permissibility of the right is to be tested not under common law, but as a matter of essential religious practice to maintain the sanctity and integrity of the religion.

Justice Nagarathna: But in this case, using marriage as a basis of classification is discriminatory against women.

Khambata: That is the point. The same principle is not applied to men. It must apply equally both ways.

Justice Nagarathna: Children of Parsi father have the benefit of the Zoroastrian religion. That means it is by birth. Same thing will apply to the wife also. It is a religion by birth, it cannot be taken away by marriage.

Senior Advocate Khambata: The minority opinion runs contrary to Articles 14, 19, 21 and also Article 25(1). Article 14 and Article 25(1) are issues we need not even go into in detail because the statute itself is well protected.

When one looks at the statute, the object and reasons make it very clear why it was enacted in 1954, replacing the earlier law of 1872. It was to enable persons of different faiths to marry. There is no provision in the statute which results in automatic conversion of either party.

Some provisions are referred to in the judgment, such as Section 13, which says that the marriage certificate is conclusive evidence. But there is nothing in that provision which suggests conclusivity on conversion. That section applies only in a limited context. The underlying principle is that a person does not lose their religious identity merely by entering into such a marriage.

There is also a reference to severance of status in the context of Hindu law. That concept only applies to a Hindu undivided family or joint family and results in severance of status. It does not result in conversion.

Senior Advocate Khambata: Now see... Only relying on Article 26, without Article 25, would not be correct. If Article 26 were the sole source of denominational rights, then it would have to stand alone.

But if that approach is taken, it would lead to the suggestion that a religious denomination has no right to freely practice, profess, or propagate religion, because those expressions do not appear in Article 26.

That cannot be the correct interpretation. The two provisions cannot be compartmentalised. They have to be read together. The source of the right, in my respectful submission, is Article 25, which encompasses both individual and collective rights.

Khambata: Now, there is a consequence to that. If the right to freedom of religion is sourced in Article 25, then it carries with it the limitations contained in Article 25, namely health, public order, morality, and being subject to the other provisions of Part III.

Would it then be suggested that while the right of an individual to practice religion is subject to these limitations, the right of a denomination is not?

I am aware that Article 26 does not expressly contain the phrase “subject to the other provisions of this part”. But that is precisely because the right under Article 26 is sourced in Article 25. The two provisions form a compact and must be read together.

It is the same right of religion. It is not a separate or distinct right that a denomination exercises. As was put in the earlier submissions, Article 25 sets out the broad contours of religious freedom. If I may read from those submissions to illustrate the point.

Justice Nagarathna: Under Article 25, the framers of the Constitution were conscious of how religion was practiced in Indian through mutts and of the existence of denominations. That is why these provisions were structured in the manner they are.

Senior Advocate Khambata: Historically, Adi Shankaracharya institutionalised mutts as religious denominations. That distinction is important. A mutt is a religious denomination. A temple, however, is not to be confused with a mutt. A temple may be an institution established by a mutt, but it is not the same thing. A temple, on its own, may or may not be a religious denomination. That depends on the facts of each case. It cannot be assumed automatically. It has to be established based on the relevant criteria.

Justice Nagarathna: The core idea is of organised religion. Organisation involves propagation, and propagation traditionally takes place through mutts. That is why Article 26 came about.

Justice Amanullah: Say I believe in the individual’s freedom to practice religion. A person may follow a particular deity or belief and practice it privately, in their home or elsewhere, in the manner they choose.

However, when one speaks of a denomination, there is a different dimension. A denomination is based on shared beliefs, a common deity, and common fundamentals. It represents a collective expression of faith.

When a person chooses to associate with a denomination, they also accept its shared practices and discipline. It is not the same as saying that because I have an individual right to practice religion in a particular way, I can insist on practicing it in that same manner within a denomination which follows a different set of beliefs and practices.

Justice Nagarathna: So 25(2)(b) will apply. So long as there is no breach of Article 25(1).

Khambata: And 25(1) will take within its fold 26(b) also. Yes. Absolutely. Absolutely. When it comes to denomination.

Justice Amanullah: All the counsels have assisted us with regard to 25, 26. Now you need to address us on harmonising it.

Senior Advocate Khambata: I think in a case where a religious denomination goes out and tries to propagate a religion, you have, I do not want to mention, there are certain institutions which do that. Now, can it be said that that is not a right available to the religious denomination because it is not there in Article 26. Can it be exercising Article 25(1)(a). That is right. It is not exercising 25(2)(b). I am okay.

Justice Bagchi: This Article 26 right is restricted by its words, not in respect of its reference to Article 25. Article 26 rights are to establish and maintain institution and manage its affairs, religious affairs. Now, if the institution in its management of religious affairs require a propagation on particular days or particular religious festivals, it can do it. And any hindrance to that will be protected on co equality with other fundamental rights.

When an individual chooses to do it, it is not an institution, then we have to have a differential approach.

Senior Advocate Khambata: If a religious denomination collectively exercises 25(1) rights then they are subject to all extension and fetters which 25(1) gives.

Khambata. Element of judicial review has to be retained else people will misuse the protection given under Article 26(b) to turn into some instrument of domination or supremacy over 25(1) which is not the intention under the constitution

Justice Nagarathna: That is why Devaru spoke about the harmonising effect.

Senior Advocate Khambata: what if a religious practice is casteist?

Justice Nagarathna: See it is not religion at all. Religion which is practiced will not extend to exclusion of some castes. Article 14 does not enter 25(1). 14 says state shall not deny equality before law or equal protection of law. But in 25(1) it is not against state. It is recognising inalienable right to conscience...

Justice Nagarathna: Essential religious practice is only an aide.

Justice Nagarathna: I will give you a stark example. If it's said that at the time of the temple Puja at the or offerings, the person belonging to depressed classes cannot be present. That can be resisted. The State can bring a law. That is social exclusion.

What do you say when there is an offering of food to the Lord, the curtain will be closed or the door will be closed and nobody should see. That is part of religious practice.

There is a wider difference between the two.