Sabarimala reference hearing: Live updates from Supreme Court - Day 15

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.

On May 5, 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 observed that the practice of excommunicating Parsi women who marry outside their community appeared to be discriminatory. 

On May 6, the Court began hearing arguments against excommunication practices in the Dawoodi Bohra community. 

On May 7, the Court observed that it should be cautious while dealing with challenges to religious practices.

In yesterday's hearing, the Court observed that freedom of religion cannot be violated in the name of social reform.

Live updates from the hearing today feature on this page.

Counsel representing intervenor, Prof G Mohan Gopal makes submissions.

Advocate: The point I seek to address is one issue which, in my respectful submission, has not received adequate attention so far. That is the demand for social justice emerging from within religious communities themselves. We have proceeded on the assumption that Part III stands on one side and Article 26 stands on the other, and that the constitutional conflict is merely a battle between these two provisions. That, in my respectful submission, is not correct.

We know that in the nineteenth century there was a massive movement for social justice arising from within religions themselves, led by numerous great saints across the country. I stand here on behalf of an organisation representing the work of Sri Narayana Guru, one such reformer, born in 1855 and who died in 1928.

What I seek to submit is this: can space be found within the architecture of the constitutional right to religion itself for these reformist forces within religions to remain active, so that they may complement and supplement the transformative values contained in Part III? That is my central argument. It may be said that if members of a religious community or denomination wish to bring reform within themselves, they are free to do so voluntarily.

CJI: Yes, such a decision to reform from within the religion to my mind is also covered under Article 15

Advocate: Yes, it would. But my submission is that the architecture of the constitutional right to religion, as interpreted over the last seventy five years, has effectively silenced these internal reformist voices. And this reference, for perhaps the first time in our constitutional history, presents an opportunity where nine judges are reflecting conceptually on religion itself rather than merely deciding an individual dispute. Therefore, this becomes an extraordinary opportunity for a course correction. Not by changing the Constitution, but by recalibrating the interpretive structure in a manner that creates constitutional space for such internal reformist traditions.

Advocate (for Prof G Mohan Gopal): The clearest articulation of this perspective comes from a little noticed document submitted by Dr. BR Ambedkar himself to the Constituent Assembly in August 1947. It was his own proposal on how the constitutional right to religion should be framed. He submitted it as a member of the Constituent Assembly to the Sub-Committee on Fundamental Rights. If Your Lordships may kindly turn to page 19 of my written submissions, you will find this extraordinary document of Babasaheb Ambedkar. Clauses 14 through 20 contain his proposed provisions on religious freedom under the Constitution.

Let us look at clause 14. It states: “The State shall guarantee to every Indian citizen liberty of conscience and the free exercise of his religion, including the right to profess, to preach and to convert, within limits compatible with public order and morality.”

What is striking, in my respectful submission, is that Dr. Ambedkar did not include the word “practice.” He used the words “profess,” “preach,” and “convert.” That distinction is crucial. And the spirit underlying this formulation emerges from the suffering and oppression experienced by a vast number of people within religion itself.

Counsel for G Mohan Gopal: Hinduism was defined as a religious category. Thereafter, in 1966, Justice Gajendragadkar in Swami Yagnapurushdasji said that a Hindu is one who accepts the Vedas as the highest authority in all matters religious and philosophical. They never asked me. None of us ever said that. Now, I have the highest respect for the Vedas and great admiration for them. But is it a fact that every person today classified as Hindu accepts the Vedas as the highest authority in all spiritual and philosophical matters? So in this manner, we were not merely subsumed into religion, we were consumed by religion. Therefore, from a constitutional point of view, we also have to ask: where is individual choice? Where is agency?

This is not merely a Sabarimala matter. This is a reference concerning the constitutional right to freedom of religion itself. Therefore, voluntariness becomes crucial.

Justice Nagarathna: That is why Hinduism is described as a way of life. It is not necessary for a Hindu to mandatorily go to a temple or perform a ritual in order to remain a Hindu.

Advocate: If that understanding comes through in the reference judgment, it would provide enormous constitutional relief.

Justice Nagarathna: That is how it has to be understood. Many people may not even have a prayer room or a sacred space in their homes, but their psyche remains deeply religious. That itself is real life.

Counsel for Dr Gopal: I want to conclude by saying this. If the argument of the opposite side is accepted, then any group in this country can simply declare itself to be a religious denomination and thereby acquire the power to supersede Article 15 and the guarantees contained in Part III. Put most strongly, they would effectively acquire a right to secede from Part III of the Constitution with respect to anything they choose to characterise as a matter of religion, without any constitutional guardrails such as essentiality. In effect, that would amount to a gross misinterpretation of the constitutional right to freedom of religion.

The real issue before this Court in these hearings is this: faith in God versus faith in clergy. Please do not allow faith in clergy to defeat faith in God originating in the conscience of the individual.

Justice Nagarathna : Let us not forget that Article 25(1) is itself part of Part III.

Adv Sneha Kalita: My humble submission is that customs originating centuries ago cannot remain immune from constitutional scrutiny in a modern constitutional democracy governed by transformative constitutionalism and constitutional ethos. Here, Your Lordships, I may just give one comparative example. In Nepal, there exists the Chaupadi system, where a menstruating woman is made to leave the village and remain for five to seven days in a mud hut.

I am only giving this as a comparative illustration. Under that practice, women are not permitted to enter homes, temples or other public spaces. This again is rooted in notions surrounding menstruation and purity.

Advocate Chaturvedi: I am only going to make one argument, My Lords. If I can make my sense clear in two minutes, nobody will be happier than me. A number of counsel on both sides of the Bar have attempted to persuade Your Lordships that where there exists a conflict between two fundamental rights, particularly in the context of Articles 25 and 26, proportionality by itself is a sufficient solution. I seek to unsettle that assumption.

My submission is that proportionality alone is insufficient. What is required is double proportionality. And if this nine-judge Bench, which by my estimate is perhaps only the seventeenth nine-judge Bench in the eighty-year history of this Republic, lays down that proportionality simpliciter is the governing standard, then it will have serious consequences for every future constitutional case involving competing fundamental rights. Why do I say this? The doctrine of proportionality evolved in the context of a contest between the individual and the State. It asks a single question: is this measure or practice a proportionate infringement upon my right as an individual? But the doctrine was never designed to answer the second and equally important question: whether striking down that measure would itself amount to a disproportionate infringement upon another individual’s right. That second inquiry can only be addressed through double proportionality. And this is not an academic distinction.

Let me illustrate this. Perhaps the clearest recent example of proportionality being applied in a competing rights context is Puttaswamy II dealing with the Aadhaar Act. There, Your Lordships applied proportionality simpliciter and moved through the four prongs one by one. Ultimately, the judgment turned on the finding that there was no disproportionate impact on the right to privacy. Your Lordships recognised that the Aadhaar framework also implicated the right to food of another class of individuals, but the decision ultimately rested on the conclusion that privacy was not disproportionately burdened. Now imagine, for a moment, that Your Lordships had concluded otherwise. Suppose the provisions of the Aadhaar Act were marginally harsher or Your Lordships had evaluated them differently and found a disproportionate infringement on privacy. Under a single proportionality framework, the consequence would necessarily have been striking down the law. But where in that framework is the Court required to ask the second question: whether striking down the Aadhaar regime would itself disproportionately impact another person’s right to food? That second inquiry must necessarily be undertaken.

Chaturvedi: Electoral Bonds concerned Article 19. Here, however, Your Lordships are dealing with Articles 25 and 26, which are sui generis rights because of the way they structurally operate within the Constitution. If Your Lordships would kindly turn to page 10 of my note, I have laid out a framework explaining how double proportionality ought to operate specifically in the context of conflicts involving Articles 25 and 26.

I only wish to highlight three aspects from that chart because they depart somewhat from the conventional proportionality analysis. First, if one of the competing rights is Article 17, Article 23, Article 24, or bodily autonomy under Article 21, then there is no balancing exercise at all. Those rights operate as trumps. If a 25 or 26 claim collides with one of these rights, there is no occasion for double proportionality because the constitutional trump prevails. Second, on the question of legitimate purpose. In any conflict involving Articles 25 or 26, the religious practice will almost always satisfy the legitimate purpose prong because it is being asserted for the furtherance of a fundamental right itself. Therefore, such practices cannot be struck down at the threshold stage of suitability.

And third, many counsel, whose argument I adopt, have submitted that Articles 25 and 26 form a complete constitutional code. If they are to be read together as a complete code, then both are subject to Part III. Article 25 is expressly subject to Part III, and Article 26 must equally be read subject to Part III. What follows from this? If the competing right is Article 17 or Article 24, that is a trump. But for other rights, the balancing exercise continues.

The Court undertakes the proportionality inquiry. Yet if, at the end of that exercise, the competing right itself survives all the prongs of proportionality and emerges as the least restrictive constitutional measure, then that competing right must prevail. That, at least in this context, is my respectful submission. In closing, I only wish to remind Your Lordships that the Electoral Bonds judgment did not merely suggest double proportionality as a possibility. It recognised it as the governing standard in cases involving competing constitutional rights. To depart from that framework would therefore be a substantial doctrinal step carrying significant consequences. Such a departure ought not to be undertaken lightly.

Senior Advocate Indira Jaising: First on the question of proportionality. I think my learned friend addressed it very well. However, I wish to point out that the doctrine of proportionality has never been invoked in the context of a clash between two fundamental rights over the last 75 years. It has primarily operated as a doctrine of administrative law under the Wednesbury principle, in which the issue is whether State action is arbitrary or unreasonable.

Therefore, My Lords, unless Your Lordships wish to fundamentally replace the existing jurisprudence, I would submit that the better approach remains the principle adopted in Devaru. And one aspect of Devaru which has not received adequate attention is the substantial injury test. The inquiry there was whether the injury caused is substantial or merely minor.

If the injury is minor, then the Court may decide which right ought to receive precedence. But where there is substantial injury, the Court must determine which right is to prevail and which right may have to yield to some extent. Therefore, My Lords, I would respectfully suggest that we continue with the principle of harmonisation of fundamental rights.

Jaising: There is only one other judgment of this Court dealing specifically with harmonisation of rights, and that arose in the HIV/AIDS context. There, a person suffering from HIV/AIDS wished to marry but had not disclosed the condition to his fiancée. The matter reached this Court. He asserted his fundamental rights to marry and to confidentiality, while she asserted her fundamental right to bodily integrity. That was the case of X v. Y. I do not presently have the citation, but I will provide it to Your Lordships. Even there, this Court adopted the doctrine of harmonisation of rights. Therefore, the harmonisation principle, read together with the essential religious practices test and the substantial injury principle, has stood the test of time for seventy-five years.

Just one point on untouchability. A question was raised as to why the word “untouchability” appears in inverted commas in Article 17. I have read literature on this, which I will provide to Your Lordships. The word “untouchability” itself did not exist in the English language until the nineteenth century. That is why it appears within inverted commas. In fact, I wanted to ask my learned friend Mr. Subramanium, who possesses the nineteen volumes of the Oxford Dictionary, whether the word appears there. I do not have those volumes myself, though I do intend to visit his library and check. My understanding is that the word did not exist in the English language before the nineteenth century because the phenomenon itself was peculiarly rooted in India. And lastly, on Nepal. Nepal made a commitment before the CEDAW Committee that it would abolish the practice of isolating menstruating women outside their homes. They subsequently returned and amended their laws to ensure that women could no longer be discriminated against on that basis.

Solicitor General Tushar Mehta: If it is a religious practice, then the further question is whether it is essential or integral to the religion. The difficulty, however, is this: Your Lordships, while interpreting and expanding fundamental rights over decades, have consistently adopted the most expansive interpretation possible.

Yet Articles 25 and 26 are perhaps the only provisions in which the Court has narrowed protection by introducing the essentiality test, holding that only essential practices will receive constitutional protection. The question then is: where does this doctrine of essentiality come from? It is not textually present in the Constitution. My submission is that it is not only textually absent but also constitutionally impermissible if one is truly interpreting the constitutional scheme.

Now, the moot question to which, with great respect, we are still not receiving a satisfactory answer is this: what is the precise interplay between Articles 25 and 26? The other side has argued that Article 26 is a standalone provision. Some of my learned friends have also argued that it exists independently. My position, however, has consistently been that Articles 25 and 26 must be read together. For that purpose, I revisited Part III itself. If Your Lordships may kindly turn to page 3 of my compilation, the Constitution itself internally organises Part III into subheadings. Part III as a whole is titled “Fundamental Rights,” but within it there are separate clusters and subchapters.

SG Mehta: Articles 12 and 13 fall under General. Articles 14 to 18 are grouped under Right to Equality. Articles 19 to 22 fall under Right to Freedom. Articles 23 and 24 are under Right Against Exploitation. Articles 25 to 28 are grouped under Right to Freedom of Religion. Articles 29 and 30 are Cultural and Educational Rights. Articles 32 to 35 concern Constitutional Remedies. So Articles 25 and 26 themselves form part of an internally connected constitutional subchapter. They are not isolated islands. And I will respectfully submit further that if Article 26 is treated as a silo or standalone island provision, the consequences would extend far beyond religion and destabilise the interpretation of other constitutional rights as well.

The principal argument advanced by the other side is that because Article 26 is not textually made subject to Part III, other provisions of Part III cannot operate upon it. Now, if Your Lordships were to accept that proposition, namely that unless a provision expressly states that it is subject to Part III no other rights can control it, then the consequences become startling. Please see Article 29. Article 29 also does not expressly state that it is subject to Part III.

Article 29 says: “Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.” It is not expressly made subject to Part III. If the logic advanced regarding Article 26 is accepted, then Article 29 too becomes a completely insulated standalone right. That, in my respectful submission, cannot possibly be the constitutional scheme.

SG Mehta: lf the textual absence of the phrase “Part III” in a constitutional provision is to lead to the conclusion that the other rights in Part III cannot apply to it, then every article lacking such express reference would become an isolated silo. I respectfully submit that cannot be the correct interpretation of fundamental rights. The word “fundamental” itself is not superfluous. Fundamental rights are rights which already inhere in the individual. The Constitution merely recognises and manifests them. Justice Ahsanuddin Amanullah:

But Article 29 concerns minorities, linguistic minorities and cultural minorities. Articles 15 and 16 are being read into it because discrimination on grounds of sex or gender is not expressly mentioned there. Solicitor General Tushar Mehta: My Lord, perhaps I did not explain myself properly. My point is slightly different. It is not that Articles 15 and 16 need to be expressly imported into Article 29 for it to function. Article 29 itself speaks of “any section of citizens.” The expression “citizens” by itself includes everybody. It does not distinguish between male and female.

Solicitor General Tushar Mehta: I was attempting to show the relationship between Articles 25 and 26 and why they are grouped together under the same constitutional heading. Article 25 essentially protects individual rights: the rights to profess, practise and propagate religion. If one recalls the language of the Preamble itself, faith, belief and worship are fundamentally individual rights.

I can enjoy them without belonging to any denomination at all. I may remain a Hindu, Muslim or Christian without identifying as a Shaivite, Sufi, Protestant or belonging to any sectarian stream. But when more than one person subscribes to a common ideology, a common religious doctrine, a common origin of doctrine or a common mode of worship and they come together collectively, Article 26 becomes the collective manifestation of the very same rights protected individually under Article 25.

Justice M.M. Sundresh: Once something is constitutionally recognised, the power of judicial review over that collective belief has to be exercised in a manner which ensures that collective belief itself. The collective belief is what constitutes it. Who are we to go and question that? You have to leave it to the wisdom of the collective belief itself. Once you have a section, then there are… however, where is the actual violation of Article 25(1)?

Solicitor General Tushar Mehta: Exactly. That is my respectful submission. Then if Your Lordships are taking it away, it is not merely a privilege conferred upon them, it is a fundamental right given to them. But ultimately, Your Lordships would recall that the reference order itself says that we need to lay down the judicial policy for dealing with these matters. And while saying that all articles in Part III would apply, I have also submitted, My Lord, and I will come to that, that I am not canvassing the extreme proposition that judicial review is completely ousted. That is not my argument. But it would be very, very restrictive. And the constitutional meaning of arbitrariness under Article 14 would not be the test while deciding these issues because we are dealing with religion, and religion may not at times have any causal connection.

Justice B.V. Nagarathna: You are right in one sense, because the word “religion” between Articles 14 and 24 is found only in Article 15(1), which is against the State, Article 15(2), which you may describe as a horizontal right, and Article 16(5), where religious denominations are specifically mentioned.

Except for these three provisions, the word “religion” is absent in Articles 13 to 24. Therefore, when Article 25 says “subject to the other provisions of Part III,” perhaps it must operate only on the plane of religion and nothing beyond that. If another article does not deal with religion at all, then how can the fundamental right to religion be made subject to an entirely different article which is otherwise foreign to religion? That is what we are trying to understand. Please develop your argument on that.

Justice BV Nagarathna: Article 17 and similar provisions may come into play insofar as the State undertakes reform under Article 25(2). But you cannot say that the right under Article 25(1) is itself subject to Article 17, because Article 17 does not deal with religion.

Solicitor General Tushar Mehta: Exactly, My Lord. Even within my own house, I cannot violate Article 17.

Justice Nagarathna: Therefore, through social reform under Article 25(2), the State can certainly legislate. But that is different from saying that Article 25(1) itself is subject to Articles 14, 15, 16, 17, 18 and so on. Article 25(1) being subject to the other provisions of Part III may really mean that it is subject to Articles 26 to 28. Mr. Gopal Sankarnarayanan has also suggested Articles 29 and 30 because the word “religion” appears there..., subject in the sense of the same subject matter, not subject in the broadest possible way. Otherwise it becomes chalk and cheese.

Solicitor General Tushar Mehta: My argument is based on a demurrer that even if Article 14 is applied while dealing with Article 25(1), the question still remains how far that application can extend.

Justice Nagarathna: Would Article 14 apply when you are dealing with Article 25(1)?

Solicitor General Tushar Mehta: It would, My Lord. Article 25 would obviously apply.

Justice Nagarathna: But can you say that Article 25(1) is subject to Article 14? Article 14 is essentially against the State... And the word “religion” appears only in Article 15(1)… And Article 16. No discrimination on the ground of religion.

Solicitor General Tushar Mehta: I am grateful, My Lord. That is an additional point. It may also operate horizontally in some contexts.

Justice Nagarathna: Then Article 16(5) clearly applies against Articles 25(1) and 26 because it expressly provides that only persons belonging to a particular religion can be appointed as incumbents to offices connected with that religion. Article 16(5) itself is an exception to Article 16(1). Article 16(2) also contains the word “religion.” But all these provisions operate on different planes... If we begin mixing everything into it indiscriminately, then there will be no religion left in this country.

Justice BV Nagarathna: If we begin mixing everything into it indiscriminately, then there will be no religion left in this country.

CJI Surya Kant: We are unnecessarily debating this in terms of majority and minority. Religious practice has nothing to do with the majority principle or minority principle. Minorities can have their own religious practices. All are protected under the Constitution. It is not a question of majority religion versus minority religion.

Justice Joymalya Bagchi: So notice the language of Article 25. Three words are important: “all,” “equally,” and “freely.” If these words are read together, the constitutional meaning becomes clear. Everyone possesses equal rights irrespective of the numerical strength of the group to which they belong. That is precisely the significance of the phrase “equally entitled.” “Equally” is preceded by “all” and followed by “freely.”

Solicitor General Tushar Mehta: I am grateful, My Lord. Therefore, whether it is a small religion or a large religion, the entitlement remains equal.

Solicitor General Tushar Mehta: In my respectful submission, Your Lordships may sometimes be confronted with situations where the activity in question is an admixture of secular, economic and religious elements. In such situations, my respectful submission is that the Court should lean in favour of protecting religious freedom.

For example, lighting a diya is unquestionably a religious practice. In a particular denomination, lighting one hundred diyas every day may itself form part of the religious practice. But the purchase of ghee for those diyas would be a secular activity. Now suppose there is a restriction that ghee beyond a certain quantity cannot be purchased. Then the activity becomes an admixture of secular and religious aspects. In such a case, Your Lordships should lean in favour of protecting the freedom of religion rather than isolating the secular component.

Solicitor General Tushar Mehta: When Your Lordships are dealing with religion, the scrutiny under Article 14 or Article 21 cannot be applied in the conventional constitutional sense. Article 14 ordinarily examines arbitrariness, the object sought to be achieved, the nexus and so on. But in matters of religion, it may at times not be possible to identify any such object from a constitutional perspective. Yet it may still be a matter of faith or belief protected by the Preamble and by the Constitution.

Therefore, the scrutiny by the Court, in my respectful submission, cannot proceed only on the ordinary constitutional understanding of Article 14 or Article 21 or other rights. It has to proceed from the perspective of a person who follows the religion and possesses a belief system protected by the Constitution.

So the inquiry cannot simply be whether there is discrimination and whether the constitutional test is satisfied. It will depend upon several factors, including the belief system and the other relevant considerations already pointed out before Your Lordships.

Senior Advocte CS Vaidyanathan: Now, on the question of what constitutes a religious denomination. In my respectful submission, the Constitution does not prescribe any minimum numerical requirement for a denomination under Articles 29 and 30. There is no requirement of a formal organisational structure, nor is there any requirement that a denomination must necessarily possess a distinctive name.

Shirur Mutt did not in fact lay down any rigid three-pronged test for determining a religious denomination. It merely referred to the Oxford Dictionary definition. But over time, with respect, it has perhaps been wrongly understood as having laid down three definitive tests.

I must also candidly state that I myself had earlier argued on certain occasions that the Hindi version cannot control the English constitutional expression. But on reconsideration, my respectful submission now is this: if the Oxford Dictionary definition can legitimately be relied upon to interpret the constitutional phrase “religious denomination,” then certainly the Hindi text of the Constitution, adopted by the members of the Constituent Assembly itself, can also be looked at in order to understand the intent behind the use of that expression.

Senior Advocate CS Vaidyanathan: Some denominations derive their identity from a shared faith, shared belief, shared practices and a community bound by common lineage. I am not repeating that.

One of the questions which Justice Sundresh had asked was whether a religious denomination is a juridical person. Under Article 26, the Constitution certainly recognises rights in favour of denominations.

Bench: My question is whether a religious denomination is a person under Article 366(31).

Vaidyanathan: juridical personality may not always be necessary. I have already submitted that it is not essential that every denomination must possess a formal juristic identity.

In the Ayodhya judgment, Your Lordships recognised the idol as a juridical person, relying upon the old Pramatha Nath Mullick and related cases. Your Lordships also examined the concept of the shebait and the manner in which juridical personality is recognised for purposes of law.

Normally, for the purposes of the Constitution, what is important is that the denomination is recognised as capable of holding rights. I have dealt with that aspect in my written submissions, and therefore I am not reading it out in detail.

Vaidyanathan: I must acknowledge that I have been interacting with Senior Advocate Parasaran throughout these proceedings, and one of the principal concerns he expressed relates to mutts. Accordingly, I have specifically incorporated this proposition. Mr. Pratap and I have both been watching the proceedings daily and discussing these aspects with him regularly.

The issue particularly arises in Kerala and in several parts of southern India. A mutt operates on the Guru-Shishya parampara, namely the transmission of religious knowledge and authority from an initiated guru to an initiated disciple. Entry into the mutt is conditioned upon initiation and acceptance of the discipline of the mutt. That discipline itself forms part of the management of religious affairs protected under Article 26(b). It cannot be regulated through ordinary administrative intervention.

A mutt is not a religious institution of a public character within the meaning of Article 25(2)(b). Therefore, that provision has no application to mutts.

In many places such as Sringeri, Kanchi and Ramanashram, a mutt and a temple coexist. But the mutt remains distinct from the temple. If the temple is a public temple, then Article 25(2)(b) may apply to it. But insofar as the mutt is concerned, it remains private, and Article 25(2)(b) cannot be invoked against it.

Where a mutt and a temple coexist within the same premises, which is not uncommon, each retains its own constitutional character. The same premises may contain both public and private spaces. A public temple within such a complex may fall under Article 25(2)(b), but the restricted premises of the mutt remain governed exclusively by Article 26(b).

Merely permitting entry to outsiders does not convert a private temple into a public one. As this Court observed in Devaru, Hindu sentiment ordinarily does not favour turning worshippers away. But such grace or accommodation does not alter the character of the institution itself.

Family temples, community temples and temples consecrated in accordance with the prescriptions of a specific denomination continue to retain their private character and their Article 26(b) right to determine conditions of entry.

On the issue of appointment of archakas, I have already submitted that Seshammal is incorrect. Seshammal and Adithayan are, in my respectful submission, wrongly decided.

Justice BV Nagarathna: The important question is what we said is this: we brought it across Article 25 with Articles 14 to 24. But just see, Articles 14 to 24 do not speak of religion. Discrimination on the basis of religion is proscribed, but the theme of those articles is not religion. Religion starts from Article 25 up to Article 28. Therefore, if you want to exercise your rights under Article 25, that is subject to Articles 26 to 28. That way, 26 to 28 will override 25.

But the reasoning does not end there. Articles 14 to 24 have their separate themes. In order to achieve those goals or to ensure those fundamental rights, you bring them in through Article 25(2), which enables the State to make laws. That is where social reform comes in, opening of temples to all sections and classes of Hindus comes in, because untouchability is declared an offence under Article 17. So you have to bring Articles 14 to 24 through Article 25(2)

Senior Advocate AM Singhvi: The social reform and throwing open clause in Article 25(2)(b) consists of two distinct limbs. My submission is that these two limbs cannot be conflated.

The first limb is general in formulation. The second limb is textually and deliberately confined to Hindu religious institutions of a public character. Therefore, the Constitution does not permit every exercise of social reform power to be treated as though it automatically carries a general mandate for throwing open religious institutions across all religions. Equally, the Hindu specific throwing open clause cannot be universalised across religions.

A bare reading of Article 25(2)(b) demonstrates a conscious constitutional choice to single out Hindu public religious institutions in the latter limb because of the entrenched historical practice of caste-based exclusion in that context. That carefully structured constitutional design cannot be erased by merging the broad language of “social welfare and reform” with the narrower and targeted language of “throwing open.”

That, in my respectful submission, is one possible interpretation flowing from the text itself.

Furthermore, Article 25(2)(b), whether one considers the general limb or the Hindu specific limb, cannot be interpreted so broadly as to extinguish the core of Articles 25(1) or 26(b). These issues have already been dealt with in our written submissions and the relevant footnotes are there. Indeed, the very idea that reform cannot extinguish the core right is embedded within the constitutional structure itself.

This brings me to another conceptual point. We often speak of the “golden triangle” of Articles 14, 19 and 21. In my respectful submission, there is no constitutional impediment to recognising that freedom of religion occupies an equally high constitutional status. It is central to the lived constitutional identity of citizens.

Senior Advocate Singhvi: Freedom of conscience and the right freely to profess and practise religion are not secondary or subordinate rights. They are express, substantive and justiciable fundamental rights.

In that sense, freedom of religion may appropriately be viewed as completing a broader constitutional quadrilateral consisting of liberty, equality, dignity and conscience. One may even call it a golden quadrilateral. Or perhaps, since we are dealing with religion, a lotus quadrilateral.

However, I must immediately clarify that this formulation is not intended to create any hierarchy among fundamental rights.

Senior Advocate AM Singhvi: All the fundamental rights in Part III are so vital and significant that they constitute natural rights and consequently are inherent and primordial to the development of the human personality. That was the categorical conclusion reached by Chief Justice Subba Rao speaking for eleven judges in Golak Nath. I have quoted that paragraph. He says that virtually all these rights, especially Article 19, are pre-existing natural rights.

That in fact became the basis of Golak Nath holding that all Part III rights stood on that footing. Of course, that proposition was later overruled by thirteen judges, but I am only drawing attention to the philosophical foundation. Your Lordships may certainly hold that Article 25(1) partakes of this character of inherence, even if not every aspect of Part III is treated identically.

I will conclude this aspect with paragraph 1.5.5. Subject to the qualifications already indicated, this Court is entitled to recognise Article 25(1) as a natural and pre-existing right inherent in the very existence of human beings since time immemorial. To conceive of human beings cohabiting in a society completely bereft of religion would be to create an imaginary world. Overwhelmingly, barring individual exceptions, religion, both individually and collectively, is likely to play an important, even dispositive, role in society. Hence Article 25(1) can rightly be treated as recognition of equality in exercising freedom of conscience and the right freely to profess, practise and propagate religion. In that sense, it is an inherent and inalienable part of the human personality.

Senior Advocate AM Singhvi: Part of the logic of this formulation is the scope of judicial review itself. Derogation of rights under Articles 25 and 26 can only be through legislation and only on the constitutional grounds expressly mentioned. It must necessarily be so. Any restriction imposed upon these rights has to be confined to those constitutional grounds.

Therefore, in my respectful submission, there are certain exercises which the Court ought not to undertake.The Court should not decide whether a religious practice is rational or irrational. That is a complete no-go area.

The Court should not examine whether a practice appears progressive or regressive according to judicial perception.

The Court should not decide whether a practice is essential or non-essential in the abstract.

The Court should not test a practice against the subjective preference of a dissenting member or a non-adherent.

Nor should the Court ask itself how it would have framed or redesigned the faith if it were constructing the religion afresh.

Now, coming to Devaru. In my respectful submission, and I believe Mr. Vedapathi also suggested this, portions of Devaru are clearly incorrect. The reasoning in certain passages is unsustainable. But the final result reached in Devaru is correct. That perhaps is the shortest possible summary of the judgment. There are portions below paragraph 248 which, in my respectful submission, are clearly wrong, but the result itself is right.

Now I come finally to the third issue, namely whether rights under Articles 25 and 26 are subject to other provisions apart from public order, morality and health.

In my humble opinion, horizontal rights include Articles 15(2), 17, 23 and 24. With respect, I do not agree that Article 19 can be treated as a horizontal right. Nor do I agree that Article 14 is horizontally enforceable in the same way.

If that approach is adopted, then wherever religion encounters another religion-based right, the horizontal-rights test would apply. But where religion is not involved, except perhaps in the ordinary State-versus-citizen framework under Article 19, those provisions would not automatically operate.

In my respectful submission, that is the best method of harmonisation because it minimises conceptual difficulties.

Senior Advocate AM Singhvi: But this will take me less than three minutes, because of what I consider to be a wholly gratuitous excursion into an issue not arising in these proceedings by Mr. Siddharth Luthra.

I appear in two connected matters. One is the Sabarimala matter. I am not addressing Sabarimala now. I am done with that.

But in the course of arguments, learned counsel started referring to khafz, namely the practice concerning female circumcision in the Bohra community, which forms the subject matter of separate proceedings.

My submission in three brief points is this.

First, I strongly object not only to the reference itself, but I would also respectfully caution Your Lordships. Sabarimala itself stands on a complete factual foundation and is presently in review. In fact, there is even a second review order. The matters tagged with it similarly proceed on their own factual records.

Now suddenly, while arguing something entirely different, somebody introduces another issue and invites observations from the Court. Such observations may ultimately prejudice those pending matters without any factual basis being laid before Your Lordships.

There are also separate issues relating to Santhara among Jains and the Bohra matter. Those proceedings have their own records and factual foundations. Merely because someone is personally prejudiced against a practice, Your Lordships should be extremely careful in making any observation which may affect those pending cases.

Secondly, I have handed over a short two-page note because not only was there no factual foundation for what was argued, but Your Lordships should also know that the expression “female genital mutilation” is itself consciously and deliberately borrowed from certain African tribal practices.

The practice under challenge in the Bohra community is entirely different in nature and is followed by one of the most prosperous and progressive communities in the country. It is claimed to be based on several centuries of textual tradition and involves a formal ritualistic ceremony.

In fact, according to the community, it is much closer in character to the mandatory practice of male circumcision followed among certain Muslim communities.

Therefore, to immediately label it as “female genital mutilation,” equating it with African tribal practices, is itself inaccurate and prejudicial.

And while Your Lordships are hearing an entirely different matter, such references are made almost as if they are anatomical facts requiring no examination. That is precisely why I am objecting.

Lastly, what is being suggested is completely incorrect. It is being portrayed as though if a female child at the age of seven does not undergo this practice, the family faces excommunication. That is entirely false.

I appear for the community and for an association representing nearly 80,000 Bohra women. It is among the most highly educated communities in India. There is no such compulsory excommunication.

According to the community, it is a voluntary, ritualistic and auspicious practice performed on a particular occasion. Several parents may not even choose to do it.

But the petitioner projects it as though the consequence of non-performance is automatic excommunication. That is simply not factually correct. It is usually the mother and daughter who participate in the ceremony.

In any case, I am not inviting Your Lordships to adjudicate upon that issue here. I am only requesting caution because there are several other matters pending before this Court, and if facts are ever to be examined in those matters, they must be examined in the proper factual context of those proceedings.

CJI Surya Kant: So the concern really is this: if the Court begins assuming the role of a super-spiritual authority or a super-religious leader and itself starts interpreting the entirety of religious life, difficulties may arise.

Where Parliament or the legislature steps in as the representative institution embodying the will of the people, the Court’s first presumption ordinarily ought to be that such reforms are being demanded by society itself, that the masses are seeking those reforms, and that the legislature is responding to that social demand.

That presumption, unfortunately, is not always accorded due weight.

Senior Advocate Gopal Sankarnarayanan: Now clearly, once the words “subject to the other provisions of Part III” are expressly there, to begin from the premise that Article 26 stands wholly isolated is, in my respectful submission, the basic error.

The High Court did not commit that error. The Supreme Court subsequently did. That error, in my respectful submission, leads to a leap in reasoning which does violence to the logic of Shirur Mutt, whose reasoning we respectfully adopt.

Therefore, Your Lordships may either adopt the High Court approach or the Shirur Mutt approach, but not the later approach which treats Article 26 as completely insulated.

One point which Mr. Mohan Gopal made regarding “autotheism.” I only wish to clarify so that Your Lordships are not misled by the terminology. He suggested that what we actually follow is a form of autotheism. But autotheism is a specific philosophical concept meaning that a person treats himself as God and follows only his own self-generated beliefs. That is not remotely what Hinduism represents. Therefore, the word “autotheism” should not be employed loosely because it carries a distinct meaning.

Finally, on the issue of horizontal and vertical rights, one further question arises. So far, we have discussed Articles 15(2), 17, 23 and 24. Both Mr. Bajaj and I are on the same page that Article 19 is not a horizontal right.

But the central question is whether Article 25 itself is horizontal. Because important consequences flow from that.

If Article 25 is a horizontal right, then it would operate directly against denominations under Article 26. That would mean an individual can assert rights directly against a denomination and not merely against the State. Article 25(2) separately contemplates the role of the State. But if Article 25 itself is horizontally enforceable against denominations, then the consequences become extremely difficult to disentangle.

My respectful view is this: Article 25 is expressly made subject to the other provisions of this Part and therefore subject to Article 26. Consequently, it is perhaps conceptually cleaner to hold that Article 25 is not a horizontal right at all. It is a vertical right, namely a right of the individual against State interference with faith and conscience.

If that approach is accepted, then an individual under Article 25 cannot directly challenge a denomination’s rights under Article 26.

Bench hears intervenors.

Senior Advocate MR Shamshad: Now, if Your Lordships are considering replacing the existing approach with a proportionality test, then in some manner or the other the Court would still be drawn into the religious sphere itself, because Your Lordships would necessarily have to determine whether a particular restriction is excessive or disproportionate.

In that process, inevitably, the Court would enter into the religious tenets themselves. Whether we call it proportionality or some other substantive standard, the problem remains the same.

My respectful proposition is this: unless the relevant religious texts and doctrines are examined in the manner in which that religion itself understands them, any constitutional test evolved by the Court will ultimately fail. It may work for some religions and fail for others.

That is why, in my first round of submissions, I had argued that when Your Lordships examine what constitutes a religious tenet in the context of Islam, it has to be approached in a particular manner. I had specifically stated in my written submissions that once the Court enters into that exercise, then the test ultimately evolved must remain sensitive to the internal structure of the religion concerned.

The second aspect concerns the interpretation of Articles 25(2)(a), 25(1) and 26(b).

Article 25(2)(a) itself contemplates regulation of secular activity associated with religion. Therefore, whenever the Government or the legislature feels that a law regulating some secular aspect is necessary, it is free to enact such legislation. Thereafter, if somebody is aggrieved, the law will come before Your Lordships for judicial review.

That is precisely why I have consistently submitted that the question remains relevant. Whether Your Lordships adopt ERP, proportionality or any other test, once such legislation is challenged before the Court, some constitutional principle will necessarily have to be applied in order to examine whether the so-called secular legislation breaches protected religious rights and, if so, to what extent.

Therefore this issue becomes extremely important. And when Your Lordships undertake that examination, Your Lordships will necessarily have to ascertain what the relevant religious tenet actually is.

Shamshad: If one scripture, for example the Guru Granth Sahib, receives a particular form of statutory protection, then the immediate question arises: why not the Bhagavad Gita, why not the Bible, why not the Quran?

That is where concerns of majoritarianism can potentially arise, because whichever faith or community is able to secure legislative attention may receive protection, while others may be left out.

In that background, My Lord, I wish to refer once again to the Ismail Faruqui issue which I had raised earlier during the hearings. Subsequent to those arguments, the Allahabad High Court has passed an order. I will only read the relevant part briefly. I am not formally relying upon it.

Nobody today is challenging the Ram Janmabhoomi or Babri Masjid judgment. That judgment has attained finality. Dr. Rajeev Dhavan has already pointed out that the Acquisition Act itself was struck down.

But the proposition laid down in Ismail Faruqui, namely the observation that a mosque is not essential to Islamic worship, continues to have consequences every single day. This order is one such example.

This Division Bench judgment proceeds on the basis of Ismail Faruqui and relies upon that proposition.

Advocate Ashwini Upadhyay: There are nearly 195 countries in the world, My Lord. If one studies the historical evolution of nation-states, one finds that a very substantial number of countries were ultimately shaped or divided because of denominational or sectarian conflicts, not because of freedom of religion itself. I do not wish to name countries individually, but there are numerous examples across the world where sectarian divisions have produced national fragmentation...