Sabarimala reference hearing: Live updates from Supreme Court - Day 16

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.

On May 12, the Court observed that freedom of religion cannot be violated in the name of social reform.

In yesterday's hearing, the Court observed that while India is a constitutional democracy where majority rule prevails, majoritarianism cannot trump constitutionalism.

Live updates from the hearing today feature on this page.

Senior Advocate Mukul Rohatgi: My Lords, I am not an intervener only in the Sabarimala matter. I also appear in the 1986 writ petition which challenges the judgment in the Syedna matter. Now, from Mirajkar onwards, and including the judgment of the Chief Justice in Rupa Ashok Hurra and later decisions, the consistent position has been that ordinarily a writ petition does not lie against a judgment of a court. I have also pointed out in my note, somewhat curiously, that this writ petition was filed by what was described as a so-called body or board. It was not registered. It had no identifiable membership. There was essentially one propagandist, namely Asgar Ali Engineer. He was petitioner number two and effectively prosecuted the matter in his individual capacity. He subsequently died.

Thereafter, another individual took over. He has also died. Therefore, realistically speaking, the writ itself has virtually abated because there is nobody presently prosecuting it. There is really no surviving petitioner in substance.

Therefore, there is very little purpose now in examining that writ petition in any great detail.

Finally, My Lords, as has already been pointed out by learned counsel before me, the Syedna judgment itself was rendered by a very strong Bench assisted by an exceptionally strong Bar. If Your Lordships see the report, from pages 301 to 306, substantial discussion is devoted to the submissions of the interveners. The matter was argued by KM Munshi, who himself had been a member of the Constituent Assembly. The Attorney General and the Solicitor General also appeared. Justice Tarkunde was involved. It was truly a galaxy of counsel. The interveners themselves were represented by the well-known Supreme Court lawyer IN Shroff, who later founded Shroff & Company.

Therefore, the issues were exhaustively debated before the Court in Syedna.

Rohatgi: In the last seventy-five years, there has in fact been no excommunication at all. The last known instances and judgments concerning excommunication go back to the Council decisions of the 1930s and 1940s where issues of natural justice and related principles were discussed. It is not as though there exists some arbitrary or diabolical authority constantly threatening that “I will excommunicate this person” or “I will excommunicate that person.” Nothing of that sort has happened for decades.

Senior Advocate Gopal Subramanium: I want to deal with the most substantive points which have been argued. And, My Lords, it appears to me that there are really three issues which require consideration. The first is whether the right is fundamentally located in Article 25(1) of the Constitution, or whether Article 26 is capable of an independent and self-sustaining existence. That, in my respectful submission, is a question of considerable importance and indeed is critical to the entire reference.

The second issue is whether the principle of what I would call “plural grounding” .... what my learned friend, Mr. Dhavan referred to as the assimilative interpretation of Articles 14, 19 and 21 — namely the principle that these rights are to be read together as an integrated constitutional guarantee, would equally apply in the context of Articles 25 and 26. That is also a very important constitutional question. I will respectfully endeavour to persuade Your Lordships that the position here is materially different.

The third issue concerns the distinction between religion and religious denomination. My respectful submission is that the expression “religion” in Article 25 refers to an established doctrine of faith as understood in common parlance ... Hinduism, Islam, Sikhism, Jainism and the like. That is religion per se. A denomination, however, consists of persons who belong to that broader faith and then organise themselves into a distinct body or institution. Thus, Hindus belonging to the Hindu faith may come together and establish an identifiable organization or sect. That becomes a denomination. Therefore, the attempt to equate the expression “religious denomination” with the entirety of religion itself is, in my respectful submission, not entirely accurate. The two expressions carry distinct constitutional meanings, and I will presently attempt to demonstrate that distinction.

Senior Advocate Gopal Subramanium: What Your Lordships ultimately have to consider is that Articles 25 and 26, though interconnected and though there may occasionally be areas of overlap, are nevertheless capable of operating in distinct constitutional spheres. If they are understood as operating in distinct spheres, then I would respectfully submit that there need not necessarily be any tension between the two provisions at all. And if there is no tension, then there is no conflict. If there is no conflict, then perhaps even the question of harmonisation may not truly arise.

Now, harmonisation is undoubtedly a sound constitutional principle where there exists some degree of tension between competing rights. But the principle of harmonisation does not mean that one right eclipses the other or assumes constitutional precedence over it. Harmonisation means that both rights are accorded equal constitutional respect so that both continue to survive meaningfully.

Subramanium: I wish to address a point raised earlier by Justice Varale during the hearings. It was a very valid question concerning rationality, and that question has remained with me throughout these proceedings.

My respectful submission is this: the scope and intensity of judicial review under Articles 25 and 26 is not identical to the scope of review ordinarily exercised under Article 14. In other words, under Article 14, irrationality which borders on arbitrariness, caprice or extreme irrelevance may invite invalidation. Justice Indira Banerjee also touched upon this recently.

But in the context of Articles 25 and 26, while rationality may certainly assist the Court as a tool of inquiry or adjudicatory reasoning, the standards of rationality applicable there are not the same as those under Article 14. That is the distinction I wished to draw in response to the concern expressed.

Senior Advocate Gopal Subramanium: The nature of individual freedom under Article 25(1) is not altogether the same as denominational freedom under Article 26. An individual may be deeply religious one morning and less so the next. He may meditate in whatever manner he has been taught or in whatever manner appeals to him. He may read any literature he chooses in order to inform his spiritual understanding. And we are fortunate in this country to possess an extraordinary range of philosophical and religious literature produced by scholars, saints and seekers across centuries. That is a vast and varied landscape of individual spiritual experience. But once one becomes part of a denomination, one subscribes to a more structured and identifiable position of faith. It may be based on a doctrine which is universal to that group. As the Hon’ble Chief Justice observed, if ten persons in a village come together under a tree, light a lamp and identify themselves by a shared belief, that itself may constitute a denomination depending upon the nature of the faith they profess.

Therefore, when one becomes part of a denomination, one tells oneself and others that “we adhere to certain tenets.” Now, when Article 26 speaks of establishing and maintaining institutions, it is not confined merely to brick and mortar structures such as temples, churches or mosques. It also concerns what is carried on within those institutions. It concerns the preservation and exposition of the faith itself.

Senior Advocate Gopal Subramanium: Indeed, Articles 25 to 28 use several distinct expressions: religion, religious practice, matters of religion, affairs of religion, religious instruction and religious worship. All these expressions, in my respectful submission, fall within the constitutional sphere of a denomination. A denomination may teach a particular creed. It may establish distinctive doctrinal positions, as one finds among Vaishnavas or various sampradayas. The submission that individual rights vis a vis denominational rights cannot be treated on par may face some difficulty. Because when both trace themselves ultimately to Article 25, then to the extent you say an individual cannot question the collective system of belief and practice, there may be a problem there. Article 25(1) itself gives the individual the right to practise, profess and propagate religion. In that sense, it is also a collective right.

Senior Advocate Gopal Subramanium: Well, on the question of judicial review, may I respectfully submit this: since these freedoms under Articles 25(1) and 26 are among the most precious fundamental rights guaranteed by the Constitution, Your Lordships should never divest yourselves of the power of judicial review in relation to them. These freedoms concern some of the most sacred aspects of human existence under our constitutional order.

Justice Varale: It cannot be a hands off approach always. It is only in an ideal situation that every issue within a denomination may get resolved internally. That may not always happen in reality. In such a situation, intervention by the Court may become necessary.

Justice Joymalya Bagchi: So there is a difference between judicial review and judicial determination. Whether you have a faith or not is a state of mind, and courts from time immemorial, and if you see the word “fact” in the Evidence Act, states of mind like honesty or dishonesty have always been subjects of judicial determination. So what is a faith or a denomination is definitely justiciable to that extent, but not on a merits or value judgment, as you are saying, in review.

Justice Bagchi: Articles 29 and 30 would also come into play in relation to minorities, because the word “equally” there operates in a manner which gives a constitutional balance, or even a constitutional advantage, in favour of minority institutions.

Subhramiam: My respectful submission is that if these provisions are read together, one gets a constitutional picture quite different from the ordinary vertical rights framework. In fact, I would respectfully say that the expressions “vertical” and “horizontal” perhaps oversimplify the matter.

This is not merely a situation where rights are enforced against the State in the conventional sense, or where the State guarantees ordinary fundamental freedoms. These are a distinct category of rights where one simultaneously enjoys freedom of religion and also, in some situations, the constitutional status of a minority institution.

Justice Bagchi: when Article 25(1) says “subject to the other provisions of this Part,” one possible argument may be that this could also permit reading in principles analogous to the reasonable restrictions contemplated under Article 19.

Subhramamiam: Now Your Lordship is coming very close to the real issue.

Justice Bagchi: There is indeed something important in that line of thought because although Article 25(1) concerns freedom of conscience and religion, and Article 26 concerns denominational rights, they do appear in some sense to be constitutional subspecies of Articles 19(1)(a) and 19(1)(c).

Senior Advocate Gopal Subramanium: Suppose, My Lord, Articles 25 and 26 did not exist at all. Even then, one could legitimately ask whether Article 19(1)(a) itself would have comprehended certain aspects of conscience and belief, because freedom of expression may also include the freedom to express one’s conscience. Equally, Article 19(1)(c), the freedom of association, may also carry within it elements of collective belief.

Justice Bagchi: We have, over time, undertaken what I may call a certain degree of reverse derivation within constitutional interpretation. For example, this Court has held that the right to information is implicit within the freedom of expression under Article 19(1)(a).

Subhramiam: Now, if freedom of expression is broad enough to include the right to receive information, then surely it is broad enough also to encompass conscience, because without conscience a person cannot meaningfully express himself at all.

That is why, My Lord, conscience may not be confined only to matters of religion under Article 25. Conscience may arise whenever an individual engages with the world, whenever he enters into human relationships, transactions or interactions of any kind. There is always, in some measure, an element of conscience involved.

Senior Advocate Gopal Subramanium: I must respectfully confess that I have some difficulty with the three formulations adopted by Hon’ble Justice DY Chandrachud in the Electoral Bonds case.

First, there appears to be a suggestion that there may exist a hierarchy among fundamental rights. Second, there is a suggestion that because Article 25 is expressly made subject to the other provisions of Part III, it therefore stands in some sense inferior to other rights. With great respect, I do not think that proposition is correct.

My concern is this: when Your Lordships interpret constitutional rights, the interpretation must arise from the text and structure of the rights themselves. One should not interpret plenary constitutional guarantees merely through the lens of judicial review doctrines ordinarily employed to examine executive or legislative action.

If these are constitutional rights, then they must first be understood as plenary rights in themselves.

Now, My Lord Justice Bagchi posed a very important question to me earlier, namely whether freedom of religion under Article 25 is really a species of the broader freedoms guaranteed under Article 19. I take that question very seriously.

My respectful submission is that there is indeed a distinction. The distinction lies in the fact that the freedom under Article 25 is deeply subjective in character. It is protected by the State, but it also operates laterally among citizens.

When one exercises freedom of religion, one simultaneously assures respect for the freedoms of others. That is the essence of coexistence.

How does one practise equality, tolerance and peaceful coexistence among religions unless one remains conscious that the exercise of one’s own freedom is necessarily conditioned by the existence of the freedoms of others?

That, in my respectful submission, is one of the reasons why Article 25 is made subject to the other provisions of Part III. Because there are always other persons whose fundamental freedoms must equally be respected. Even if they are not themselves exercising an Article 25 right at that particular moment, they remain bearers of constitutional freedoms which the constitutional order requires all of us to respect.

Senior Advocate Rajeev Dhavan: I can actually see you, My Lord Justice Amanullah. From where I was seated earlier, I could never properly see Your Lordship’s face. But I can now, and I am grateful for that.

Justice Amanullah: I hope it is not a distraction for you.

Dhavan: It is a very pleasant face and nice to look at, unless, of course, Your Lordship begins asking me angry questions, which is another matter altogether.

Senior Advocate Rajeev Dhavan: The moment Your Lordships come to Article 15(3), you immediately encounter the constitutional concept of the group.

And how many such constitutionally recognised groups do we have? Scheduled Castes, Scheduled Tribes, economically weaker sections, women, children, groups protected through anti-degradation rights. The Constitution repeatedly recognises collective identities and group-based protections.

Unfortunately, much of the argument from the other side has proceeded on an overwhelming investment in the concept of the individual alone.

But Article 26 is a group right. Article 29 is a group right. Call it horizontal, call it whatever you like, but constitutionally they are rights vested in collectives and groups.

Senior Advocate Rajeev Dhavan: It is not as if the framers or the constitutional courts were unaware of these questions merely because of one campaign or one controversy. Social reform forms a major constitutional component of Article 25(2).

Sometimes, when we discuss reform, we immediately move toward ideas such as a Uniform Civil Code because that may attract broader public sympathy. But in doing so, we often overlook the fact that the origins of Article 25(2), particularly the social reform clauses, have an extremely wide constitutional implication. Anyone familiar with the social realities of India would recognise both the importance and the relative autonomy of clauses (a) and (b) of Article 25(2).

I will stop there on that aspect because, as the Hon’ble Chief Justice observed, there is much more material to read.

But let me return to my principal argument. What I am presently doing is summarising the argument advanced from the other side.

This background is important because this remains one of the unresolved areas within the chapter on Fundamental Rights. Constitution Benches have dealt extensively with many other areas of Part III, but this particular area remains unsettled.

Now, My Lords, if Your Lordships may kindly come to page 2. I will read the propositions because that is the easiest way for me to explain why, in my respectful submission, the basic argument advanced from the other side is flawed.

Paragraph 1.1: the argument proceeds on the basis that the foundational right to freedom of religion under Articles 25 to 28 ultimately rests in the individual freedom of conscience and the individual right freely to profess, practise and propagate religion under Article 25(1).

Now, let me clarify, this is not my argument. This is my paraphrase of the argument advanced by the other side. According to them, the nodal constitutional right is Article 25(1), and everything else flows from it. In my understanding, that proposition underlies almost every submission made on the opposite side.

The next proposition is that individuals together form a denomination or section.

Now, I respectfully submit that there is a difference between a mere collectivity of persons and a constitutional community. Article 25 concerns communities in a deeper constitutional sense. It is not simply about a gathering of persons who suddenly assemble and choose a leader. There must be some organising principle, some continuity, some shared purpose. In that sense, I agree with what my learned friend Mr. Subramanium said, namely that the expression has to be understood broadly.

The next step in their argument is this: because Article 25(1) is expressly made subject to the other provisions of Part III, the same restrictions must also govern Article 26. Therefore, according to them, Article 26 cannot independently exist and derives its constitutional existence entirely from Article 25.

In fact, Mr. Srivastava took the argument even further and extended that reasoning all the way through to Article 28.

Now comes the larger constitutional premise behind their submission. They argue that after the Bank Nationalisation case and Maneka Gandhi, constitutional interpretation adopted what may be called an assimilative approach, namely that rights under Part III must all be read together as an integrated constitutional structure.

Senior Advocate Rajeev Dhavan: We must make a very important distinction between constitutional values which may enter the Court’s deliberative or interpretive imagination, and values which are converted into actual limitations upon a fundamental right.

There is a profound constitutional difference between evaluating something on the one hand, and transforming that evaluation into a restriction or limitation on the right itself. That distinction is fundamental to our understanding of Part III.

I will move on, My Lords. I do not propose to take Your Lordships through all the remaining portions over the next two pages.

On Article 26, I have in fact already dealt with much of this.

There is a very important distinction between treating essentiality and integrality as threshold questions on the one hand, and treating them as evaluative concepts on the other.

Now, in Sabarimala, without reopening the matter itself, what effectively happened was this: the Court held that the practice in question was not essential to the faith. Once that conclusion was reached, the consequence was that the claimants were treated as not possessing Article 25 rights at all.

If essentiality is converted into a threshold limitation in that way, then Article 25 rights themselves can disappear entirely.

Similarly, in Sabarimala, once denominational status was denied, Article 26 itself effectively disappeared from the constitutional analysis.

That, My Lords, demonstrates the constitutional importance of the concepts of essentiality and integrality on the one hand, and denomination on the other.

If these are treated merely as threshold requirements, then the consequence is that Articles 25 and 26 themselves stand invalidated at the threshold because the claimants are told that they never possessed the rights in the first place.

Senior Advocate Rajeev Dhavan: Constitutional morality is certainly a doctrine which emerged substantially through the judgments of Chief Justice Dipak Misra, Justice Chandrachud and others.

Justice Chandrachud himself, however, in the Madras Bar Association case, dealt with the question whether the basic structure doctrine could itself directly invalidate a statute. And what he held there was this: a statute may be struck down only for violating a specific provision of the Constitution, including Part III, or for want of legislative competence. The constitutional validity of a statute cannot be challenged merely on the ground that it violates an abstract feature of the basic structure.

And the reason he gave was important. He observed that concepts such as democracy, federalism and secularism are themselves undefined constitutional concepts. If courts were permitted to invalidate statutes solely on the basis of such broad abstractions, it would introduce uncertainty into constitutional adjudication.

More recently, this Court itself has accepted that even where a challenge is framed in terms of the basic structure, the actual constitutional infraction must still ultimately be traced to an express constitutional provision.

Now if that degree of relativism or indeterminacy exists even in relation to the basic structure doctrine, then it applies equally, perhaps even more strongly, to constitutional morality.

But that approach, with respect, was not consistently applied earlier. Justice Chandrachud did not apply the same approach in Sabarimala.

Senior Advocate Rakesh Dwivedi: I had earlier referred to an observation of the esteemed late Fali Nariman where he said that Hinduism is a way of life. Today, with great respect, I would differ from that formulation.

All religions involve a way of life, but they are much more than merely that. Hinduism is also a religious philosophy. It is also a deeply evolved social structure. It concerns how human beings relate to the creator, how existence itself is understood. It encompasses questions about the meaning of human life and existence in this world.

The expression “Hinduism is a way of life” appears to have originated from a particular judgment of this Court, and it seems from there that Mr. Nariman adopted the phrase. But I would respectfully hope that Your Lordships do not reduce Hinduism merely to a way of life because, in my submission, that formulation dilutes its deeper philosophical and religious essence.

The second aspect on which I completely agree with the earlier submissions is this: Articles 25 and 26 are fundamentally group rights. In fact, they are essentially collective rights.

At the same time, Article 25(1) represents the point where individual rights and group rights coalesce and stand intertwined.

As I had submitted during my earlier arguments, religion by its very nature is associational. It cannot ordinarily exist in isolation. One man sitting alone, like Robinson Crusoe on an island, may meditate, practise yoga or pursue spiritual reflection, but that by itself does not create a religion.

All organised religions that exist in society are associational in character.

Senior Advocate Rakesh Dwivedi: My respectful submission is that denominations have been specifically carved out by the Constitution and granted additional and special protections, particularly under Article 26(b).

Now the question is: how do we then bring in and harmonise those rights with other constitutional provisions? In my respectful submission, it is preferable to achieve constitutional outcomes through the framework expressly provided by the Constitution itself, such as Article 17, social reform provisions and morality, rather than by indirectly diluting Article 26(b).

Justice Nagarathna: No provision of the Constitution can really be treated as entirely standalone.

Senior Advocate Rakesh Dwivedi: May I respectfully say that I entirely agree. No provision in the Constitution is truly standalone. Ultimately all provisions together constitute the constitutional system. But merely because Article 26(b) exists does not automatically answer whether it is standalone or not standalone. The real question is: what are the limitations upon Article 26(b)?

Can one indirectly import Article 25(2)(b) into Article 26(b) through a process of harmonisation? That is the issue I am addressing.

When a particular legislation is enacted, one must examine whether it genuinely encroaches upon Article 26(b), or whether it is in substance an instance of permissible social reform. That is where harmonisation becomes relevant.

Justice Nagarathna: The question really is whether it is genuinely social reform or merely presented in the guise of social reform.

Hearing to resume post 2 pm.

Senior Advocate K Parameshwar: Your Lordships have all the tools in your arrows, in your quiver, to balance the application of other fundamental rights to Part III, 25 and 26. But my respectful submission is that, please do not exclude the application of other fundamental rights to matters concerning 25 and 26. Because, My Lord, we do not know what judicial circumstances will come before Your Lordships, legal circumstances will come before Your Lordships where Your Lordships may have to employ one of these rights. So build in that safeguard. Your Lordships have already suggested one safeguard. Your Lordships said, yes, we will look at who is coming, what is his locus standi, what is the cause of action. That is one safeguard Your Lordships can build. The other circumstance Your Lordships can build in while using 25, 26 and other fundamental rights is matters which are a pure denominational conflict of what is the actual ritual to be used when there are two denominations. Yes, no question of 14, 19, 21. That is for a suit. That is the denominational inter-denominational conflict... If it is a question of control over institution by two sets of denominations, two sets of believers, again Your Lordships may not trigger the judicial review route. Third, succession to offices, whether there is somebody, religious offices, succession. If Your Lordships build in these safeguards, My Lord, I think it is in the interest of constitutional interpretation that Part III must receive its full play. How Your Lordships tailor that must is part of that balancing exercise.

Justice Nagarathna: So long as it has nexus to religion... people say Part III means not what Dr. Dhavan said, something to the political rights issue is concerned. So long as there is some nexus to what is guaranteed under Article 25(1), it can be considered. If there is no nexus, that is one way to balance.

Senior Advocate K Parameshwar: I agree. That is why I said the way the Constitution treats material resources is very different from how the Constitution treats beliefs, faith, conscience.

Senior Advocate K Parameshwar: Can I just come back to the first part of my submissions, which is at page 1, because I believe somewhere down the line we have conflated the definition of the word “religion.”

The logic concerns not merely the word religion itself. The definition of the word religion would necessarily inform the meaning of the expressions “religious practice,” “affairs in matters of religion,” and “religious denomination.”

The meaning of the word religion controls the interpretation of the right. It informs the meaning of the terms religious practice, affairs in matters of religion, and religious denomination.

At the same time, any attempt to define the term religion with precision is constitutionally imprudent, especially because such a definition will either become overbroad or unduly restrictive, and in truth may be impossible to articulate at all.

I have referred in the first footnote to the fact that from 1868 till 2026, the United States Supreme Court itself has struggled, unsuccessfully, to arrive at a satisfactory definition of religion.

Senior Advocate Parameshwar: What the ERP doctrine tends to do is privilege certain practices over others.

The easiest critique of the ERP doctrine is, first, that it is not textually found in the Constitution at all. Second, it is deeply elitist in its operation. Extremely elitist.

Because an individual’s spiritual pursuit is as much a part of Article 21 as it is of Article 25.

And therein lies the connection between Articles 21 and 25. If you remove my religious practice or my spiritual pursuit, to that extent you are also damaging my identity under Article 21.

Justice Nagarathna: ERP doctrine can be used as a tool to say that the pratice is so essentially religious, it's not secular. But merely because a court concludes that it is not an “essential” religious practice, you cannot then say that it will receive no constitutional protection at all.

Senior Advocate K Parameshwar: What Your Lordships have got to see, appreciate and ultimately decide is this: what is the belief of the people who have manifested that belief in the form of a deity?

In other words, once there exists a shared belief among believers, and once the object of belief is the same, then that collective belief itself forms the basis of the denomination. Nobody can stop that.

So perhaps all three things must coexist: the believer, the belief, and the object of belief.

If Your Lordships accept that framework, perhaps the same test can apply even in the context of a mosque. Because what Your Lordships are essentially saying is that it is not mere unregulated access to a temple or mosque which is protected under Article 25(1). If there is a belief, and that belief manifests itself through the rights of devotees or believers under Article 26, then the belief, the object of belief and the rights of believers under Article 26 must all align together.

If that is the approach Your Lordships adopt, then Articles 25 and 26 become balanced.

Senior Advocate Parameshwar: The principal objection to Devaru has always been this: how does one balance a constitutional right under Article 26 with a legislative provision permitting entry?

But Devaru itself used the expression “right under Article 25(2)(b).” Although 25(2)(b) is textually framed as an enabling provision, Devaru treated it as conferring a right.

According to me, that right is ultimately traceable back to Article 25(1).

There is one further connection between Article 25 and Article 35 which I wish to point out, particularly because Your Lordships are examining temple-entry laws.

There was a suggestion made that the expression “nothing in this article shall affect the operation of any existing law” includes customs, traditions and practices. With great respect, I disagree.

The expression “existing law” there must derive colour from Article 366(10), which defines existing law as legislative law.

The examples would be laws such as the Sati Prohibition Act, the Devadasi Abolition Acts, various temple-entry enactments. Those are legislative laws.

Senior Advocate K Parameshwar: You will see that the entire array of fundamental rights remains available within Your Lordships’ constitutional repository. If circumstances so demand, Your Lordships may have to deploy them.

Because if one were to say that Article 21 can never apply in the context of Articles 25 and 26, that would virtually amount to a constitutional prohibition.

Therefore, I must address Your Lordships on the “subject to” clause in Article 25.

One explanation which Mr. Subramanium offered was that the subjection clause exists so that when one person claims rights under Article 25, other persons are also enabled to exercise their rights under Article 25 and under the other provisions of the Constitution. That is one way of understanding the clause.

But there are one or two additional ways of looking at it.

Religion under Article 25 is unique within the constitutional structure because it is the only instance where one of the prohibited grounds of discrimination under Articles 15 and 16 itself becomes an affirmative constitutional right.

Articles 15 and 16 say that the State shall not discriminate on grounds of religion, sex and so on. But none of the prohibited indices listed in Articles 15 and 16 are themselves independently guaranteed as rights elsewhere in the Constitution.

I hope I have made myself clear, My Lords.

Article 25 is the only provision where one of the prohibited categories under Articles 15 and 16, namely religion itself, is transformed into an affirmative constitutional right because of the constitutional mandate embodied in Article 25.

Chief Justice of India Surya Kant: The constitutional court cannot give up its responsibility. You cannot surrender that. It is not merely a question of power. It is a constitutional duty of the constitutional court. We cannot surrender that.

Senior Advocate K Parameshwar: One part of my argument on denomination was this: a restrictive reading of the term “denomination” completely prejudices the exercise of freedoms under Articles 25 and 26.

In my respectful submission, the definition of religion and denomination adopted in Shirur Mutt through reliance on the Oxford Dictionary must be treated only as indicative, not determinative, of what constitutes a denomination.

There are denominational practices in this country which function without a rigid institutional structure. There are denominational practices which function without a formal organization or even without a formally identifiable name.

Sabarimala itself is one of the best examples. One of the questions asked there was: what is your name? They said “Ayyappa” itself was not being accepted as sufficient.

Second, they were asked: what is your distinctiveness? Again, that test of distinctiveness itself becomes problematic.

Third, they were asked whether there was something novel or unique in the practice.

Now, if such restrictive tests are imposed, they effectively denude one’s freedom of practice under Articles 25 and 26.

This becomes even more problematic in the context of syncretic traditions.

Senior Advocate Parameshwar: There are at least two syncretic traditions directly recognised in judicial pronouncements.

One concerns Sai Baba temples. Courts in Tamil Nadu and Andhra Pradesh were called upon to determine whether Sai Baba temples are Hindu temples. It was argued that persons from all faiths visit Sai Baba temples. One High Court held that it was a Hindu temple. Another High Court held that it was not a Hindu temple but a charitable institution.

The second example concerns the Ramanashram associated with Ramana Maharishi. The issue there was whether the Matrubhuteswar Temple formed part of a Hindu religious institution. Again, the Court noted that people belonging to various faiths came there for worship.

The point I am making is this: the determinative factor for a denominational institution cannot simply be who comes there.

Your Lordships may have to adopt a broader constitutional understanding of denomination.

Justice Aravind Kumar: Sanyasi and Mathadipati are not same.

Justice BV Nagarathna: Every Sanyasi is not a Mathadipati. Let us not demean a Mathadipati to a sanyasi. Touched us personally so we said, nothing against you.

Senior Advocate Dhavan: The amicus has given a lecture which has nothing to do with what we are doing or what they are doing. Are we to treat him as some inner chamber which will then advise Your Lordships? Because what he is talking about has nothing to do with what we are doing or what they are doing. And this creates a very serious issue.

SG Mehta: My Lord, this is an unfair comment, I have a serious objection to this comment.

SG Mehta: I strongly object to this kind of objection being raised against an amicus. An amicus is appointed by Your Lordships. He is not required to satisfy either Mr. Dhavan or the other side. He is entitled to place his independent opinion before the Court.

My Lords, we do not lose our civility by pointing out that Mr. Dhavan himself is appearing as a party-in-person in this matter. But let that be as it may.

I would request Mr. Shivam Singh not to be cowed down by these observations. He is a young counsel. A brilliant young counsel.

Mr. Dhavan, perhaps you should remove your gown and argue if you are appearing as a party-in-person. No counsel here is objecting to that.

My Lords, I again request Mr. Singh not to be intimidated by such remarks. None of us, on either side, should place younger colleagues in such a position.

It was really unfortunate.

Advocaate Shivam Singh: Now, in cricket, what we see is this. Under idea B, namely the spirit of cricket, or more generally sportsman spirit, there are recognised modes of dismissal under the laws of cricket. A batsman can be declared out LBW, bowled, caught behind and so on. But he cannot be declared out merely because someone says he has violated the spirit of cricket.

Now, on this aspect of the spirit of cricket, which I believe is relevant for understanding constitutional morality, one may use the spirit of cricket to understand why certain rules exist. For example, in a stumping or a run out, one understands that a player has derived some advantage and the fielding side has acted alertly.

So please use the spirit of cricket, or constitutional morality, to reflect upon the reason why a provision exists. But do not use it as a standalone basis to invalidate legislation. That is where the real problem begins.