Sabarimala reference hearing: Live updates from Supreme Court - Day 12

A 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.

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.

A nine-judge Bench comprising Chief Justice of India (CJI) Surya Kant along with Justices BV Nagarathna, MM Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi is hearing the matter.

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.

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. 

On April 29, 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.

In yesterday's hearing of the matter, the Bench posed tough questions on why a 2006 PIL on the Sabarimala temple entry issue was filed or entertained by the Court at all. The Court also began hearing submissions on the practice of excommunicating Parsi women who marry outside their community.

Live updates from the hearing today feature on this page.

Senior Advocate Darius Khambata: I think I must clarify very clearly what my position is. It is not exactly the same as that of the learned Solicitor General, but it is also not an extreme position. I am trying to tread a middle path.

I have broadly summarized what should be ring fenced from judicial review and where judicial review should not, as a matter of principle, be exercised.

That would mean that the right is not available only against State action, but can also be asserted independently of State action. That is broadly the position. As I pointed out earlier, under Article 226, Your Lordships have recognized such a right even against a public charitable trust. In my case also, there is a public charitable trust involved.

Senior Advocate Khambata: Let me be very clear. If a belief or practice is proved unambiguously to be the genuine belief of a community or denomination, then a judge is bound to accept it. But the proof has to exist. Your Lordships have explained this in several decisions. Shirur Mutt itself recognized limits on judicial review. Bijoe Emmanuel also stated that the Court would determine whether the belief is genuinely and conscientiously held as part of the profession or practice of religion.

Justice Sundresh: You want us to decide between rights between A and B. Kaushal Kishore et cetera dealt with non-state actors... How does this come under the purview of judicial review. You may file a suit etc. We will have thousands of cases in such nature..

Justice Nagarathna: The respondents trust will not come under Article 12.

CJI Kant: Questions 1, 2, 3 and 4, we have understood, are predominantly questions of fact. Predominantly, yes. And 5 and 6 concern the legal consequences.

What my learned sister pointed out is that if the issue concerns reform, and if it is fundamentally a question of fact, then it would require evidence. So to that extent, perhaps we may also be inclined to agree that these issues would require judicial determination. The question would arise only thereafter.

Justice Nagarathna: Whether this ban on lady marrying outside religion... is this a matter of religion.

Khambata: No. Even the HC notes as a matter of fact that religion doesn't prescribes this. Nothing excommunicates a Parsi lady after inter marriage. Other side highest case is inter marriage is frowned upon... but nothing to oust them from the religion.

Justice Nagarathna: If its not a matter of religion, file a civil suit.

CJI Kant: If there is a conflict between 25(1) and 26, then the question arises. If there is no conflict, then it does not matter. Very popularly, this word “harmonise” has been used. At least speaking for myself, I am not convinced there is a need for this harmonisation exercise here. These are not different kinds of rights or different kinds of principles.

Senior Advocate Khambata: Your Lordships have held that the Court undertakes a balancing exercise to analyse whether the cost of interference with the right is proportional to the extent of fulfilment of the purpose. It is at this stage that the Court undertakes an analysis of the comparative importance of the considerations involved.

Khambata: My first argument is that Articles 25(1) and 26 should not be read as being in conflict. Article 26 flows out of Article 25(1). Assuming, however, that Your Lordships proceed on the basis of conflict, then in any case this is perhaps the safest way.

And what is the right under Article 26(b)? There was a very interesting, short but neat argument on behalf of the Bombay Parsi Panchayat, where Your Lordships were told that hard cases should not be decided on the basis of sympathy. Your heart may beat for a particular individual, but one must remember the autonomy of a denomination.

Now, that is not exactly my argument. Article 26(b), no doubt, is fundamentally a right of autonomy against State action. That remains unaffected. But Article 26(b) is not a right of domination. Please do not conflate autonomy with domination. Merely because there is a conflicting belief does not mean religious autonomy is affected.

That autonomy is essentially against the State. Therefore, sometimes we conflate religious autonomy with denominational control over individual members, or domination over them. That confusion should not arise. Article 26(b) is essentially protection against State action.

A right of exclusion against an individual member would still have to be established on the basis of religious doctrine. It does not arise merely because a denomination has a right to organise or manage its affairs in matters of religion.

That, therefore, is the fundamental or precise interest protected under Article 26(b), namely protection against State action.

On the other hand, what is the precise interest under Article 25(1)? There, I would submit that the time-tested doctrines of “integral” or “essential” religious practices, and in some cases “fundamental” religious practices, are useful instruments by which these rights can be balanced.

Senior Advocate Khambata: I am going to end with one thought. Your Lordships are called upon to interpret a Constitution, not merely a statute. That interpretation will impact the lives of over a billion people, because religion is so important in our country to everyone.

Please keep in mind that constitutional silences are not the same as constitutional vacuums. So many matters, Your Lordships, without express language, have been decided. Starting with the collegium system under Article 124, the right to health, the right to privacy, judicial autonomy under Article 21, and the doctrine of separation of powers under Article 40. There is no express language. Nevertheless, Your Lordships have read meaning into those silences and given content to them.

So Articles 25(1) and 26 must continue to reflect what I started with: our ancient civilisational values of mutual respect, tolerance, peaceful coexistence, plurality of belief and practice, and religious autonomy.

This is really the ancient ethos of Hinduism. As I said, that is how my community has survived for 1,200 years. When one thinks about it, it is the most amazing thing. That essence and core is embodied in Article 25(1).

Now, to say that Article 25(1) has it, but Article 26(b) is not shackled by it, would really damage this architecture. So my request is, and I commend this as a submission, that there should be no primacy or hierarchy where one trumps the other. Both have to be read together.

It is a daunting task for Your Lordships, and for any court, but it is a noble task. It is a task that has to be performed to maintain this balance.

Article 26(b) is part of a pattern of guarantees. It is not an item by itself, much less a fortress, and much less a provision to dominate any other functionary’s right. Therefore, balancing, which is always the most difficult task of a court, is really the only answer. I think the courts in the past have also tried to balance these rights. Venkataramana Devaru is a classic case of balancing, and I humbly and respectfully submit that this is what I commend to Your Lordships.

Senior Advocate Raju Ramachandran: Jawaharlal Nehru had a cousin, BK Nehru. He was an internationally famous diplomat. The title of his autobiography was Nice Guys Finish Second. All that I request is that this not-so-nice person comes third and not fourth or fifth. That is all.

Let the Parsi fight finish first.

Hearing to resume post lunch.

Senior Advocate Ravindra Srivastava argues.

Justice Nagarathna: One way of looking at it is Article 26 deals with denominational fundamental rights. There, the individual is subsumed within the denomination, and it is the denomination that possesses the fundamental right. Therefore, this question whether a person belonging to that denomination can challenge a religious practice of that denomination may, strictly speaking, not arise. Because if he belongs to that denomination and follows it, then ordinarily he cannot raise a dispute against it.

Justice Aravind Kumar: But that also leads to the proposition that such a person possesses a dual right.

Senior Advocate Srivastava: There has to be demarcation between religious rights and constitutional rights.

Senior Advocate Srivastava: This cannot mean that Article 26 was conceived as creating a situation where a religious group or organisation is absolutely immunised from the discipline of fundamental rights. To say that it need not respect or follow fundamental rights would be an extreme proposition, and one with serious consequences.

Therefore, whether it is Article 25 or Article 26, every right has to adhere to basic constitutional values. Otherwise, those rights would stand detached from the larger framework of fundamental rights under Part III of the Constitution. That is my understanding.

Justice Nagarathna: See, actually, the real contradiction is between Article 25(1) and Article 25(2). Because Article 25(2) begins with the words ‘nothing in this article’, meaning thereby Article 25(1) versus Article 25(2).

In order to determine whether something falls within Article 25(2)(a) or 25(2)(b), Article 26 becomes an aid. Because if the matter is purely secular, then the State can certainly make a law. But if it is something touching upon matters of religion, which are guaranteed to a denomination under Article 26, then interference with it would violate Article 25(1). In that situation, it is not purely secular, and therefore the law can be challenged.

Justice Nagarathna (on Parsi excommunication and Sabarimala entry): The whole issue is what constitutes a religious practice, because the claim of prevention of entry is founded on that.

Here, it all depends on the nature of the marriage. A Hindu marriage is treated as a sacrament. A Muslim marriage is treated as a contract. A marriage under the Special Marriage Act is a statutory marriage, neither a sacrament nor a contractual marriage.

There, the consequence is prevention of entry. Here, they are claiming entry. There, it is prevention of entry. That is the distinction.

Senior Advocate Raju Ramachandran: So, I represent a group of reformist Dawoodi Bohras and one individual whose father, the late Asghar Ali Engineer, was himself a victim of excommunication and whose family has suffered on that account.

Just as the Parsi case placed before Your Lordships highlighted the issue of deemed conversion of a woman upon marriage, thereby depriving her of agency, the issue I seek to highlight here is that excommunication directly impinges upon human dignity.

Here, the head of the sect is called the Dai. This is a sect of Shia Muslims, and among Shia Muslims there are two principal Bohra sects ... the Dawoodi Bohras and the Sulemani Bohras. This schism, my Lords, arose during the time of Akbar over the question of who should be recognised as the Dai.

The Dai himself is regarded as the representative of the 21st Imam, who is believed to have gone into seclusion.

Now, the unique feature of the Dawoodi Bohra faith is that the Dai is the supreme authority. Children, upon attaining puberty, take an oath of complete allegiance to the Dai in all matters. I will read out that oath to Your Lordships: ‘You are the master of my life.’

Therefore, one surrenders one’s life in all its aspects to the authority of the Dai... not merely in spiritual matters, but also in purely temporal matters. I have highlighted instances of excommunication arising even from acts such as starting a cooperative society without the permission of the Dai.

Senior Advocate Ramachandran: And let me also say at the outset that this is not something unique only to the Dawoodi Bohra community. Different faiths may have different forms of religious punishment or discipline to preserve the cohesion of the faith.

For instance, in the Sikh religion, right from the time of Maharaja Ranjit Singh, leaders have had to pay a certain religious price. Even within our own lifetimes, in the 1960s, prominent Akali leaders such as Sant Fateh Singh and Master Tara Singh, and later in the 1980s President Giani Zail Singh and Sardar Buta Singh, who was Home Minister, and very recently former Deputy Chief Minister Sukhbir Singh Badal, have at different times been declared Tankhaiya by the Akal Takht.

They were required to atone or perform penance by undertaking some form of kar seva, such as serving at the langar, cleaning utensils, or minding shoes at the Gurdwara. Giani Zail Singh, in fact, tendered an apology.

Therefore, the issue is not about the mere imposition of religious discipline, which one may assume every religion requires in order to preserve its flock. The question is about the proportionality of the punishment and its impact upon human dignity.