Sabarimala reference hearing: Live updates from Supreme Court - Day 7

Senior Advocate Gopal Subramanium: In my note, I have referred to the preface of Rabindranath Tagore to the first volume of The History of Indian Culture, published in 1938. The importance of this lies in the principle of equalisation which is stressed across the Upanishads. Tagore writes that he loves India not because of geography or birth, but because of the enduring philosophical insights preserved through the ages.

He refers to the Upanishadic expressions “Satyam, Jnanam, Anantam, Brahma” and “Shantam, Shivam, Advaitam”, emphasising truth, wisdom, infinity, peace, goodness, and unity of all beings. The idea is that life is to be lived with a consciousness of the eternal, and that India’s philosophical tradition seeks unity and harmony among all beings. He speaks of a vision where all human beings are united through wisdom and goodness, transcending distinctions. This is reflected in the Upanishadic understanding that the divine is present in all.

Even in later literature, including the Puranas, this idea continues. For instance, in the Durga Saptashati, the expression “Ya Devi Sarva Bhuteshu” recognises the presence of the divine in all beings. The emphasis is on universality and equality. This is important because it shows that the idea of equality is not merely a secular construct emerging from modern constitutionalism. It has deep roots within religious thought itself.

Now, coming to the expression “conscience”, which was a question raised earlier, I have referred to standard dictionary meanings. Conscience is described as inward knowledge, consciousness, internal conviction, and the inmost thought of the mind. It is a faculty that involves awareness within oneself and an inner sense of right and wrong. This understanding of conscience reinforces that Article 25 protects not only external acts of religion, but also the internal, deeply personal dimension of belief and conviction.

Sr Adv Subramaniam: At the same time, when a law intervenes in matters of religion, it must withstand strict scrutiny. It must be shown to serve a genuine purpose and must be proportionate to the objective. The concept of essential religious practice should not be completely discarded. It can be a useful tool.

When a claim is made under Article 26(b), the Court must scrutinise whether it is a genuine religious claim or something extraneous. The idea is not to allow superstitious or extraneous elements to be elevated as religious rights. The Court has to carefully examine such claims. On the question of what constitutes social welfare or reform, the answer must be found within the structure of Article 25 itself.

The State can restrict rights subject to public order, morality, health, and the other provisions of Part III. Part III itself is not a source of legislative power under Article 25(2). Nor can it independently justify intervention beyond what is permitted within the framework of Article 25.

Senior Advocate Gopal Subramaniam: The Constitution, through the Preamble, recognises justice in its social, economic and political dimensions. So I am not downplaying the importance of this issue. At the same time, the freedom of religion and conscience is a very important freedom, forming part of the basic structure. Therefore, any legislation under Article 25(2)(b) must be read strictly. There must be a clear nexus between the need for reform and the objective sought to be achieved. Otherwise, Article 25(2)(b) could become an overarching provision, leading to a gradual erosion of religious freedom.

For example, if a law permits entry of a certain category into a temple in the name of social reform, the Court must examine the extent of the invasion. It must consider whether the exclusion was based on an established custom or usage, whether it was limited in scope, and whether it formed part of a denominational practice. Customs and usages cannot be discarded lightly. Even if they are not essential religious practices, they may still deserve respect if they form part of a long-standing tradition.

Justice Joymalya Bagchi: Let us take the case of practices which may be abhorrent to morality, but which have been followed in a particular place. The legislature can intervene on grounds of social welfare and reform. So, social welfare and reform are not necessarily narrow. It can be actuated by a proper purpose. But I want a clarification. The word “social” and the Directive Principles are constitutional visions. Will the constitutional vision of the State form part of social reform legislation? We are also dealing with the question of constitutional morality as opposed to public morality. If we are to differentiate between the two, then when it comes to legislative competence and making inroads, should we create compartments between social reform and constitutional reform through the enforcement of visions under Part IV? In one of the earlier exchanges, it was said that constitutional morality may vary from person to person, but constitutional ideals and assurances are relevant for the State. So if the State seeks to enforce those, would that fall within social reform?

Senior Advocate Gopal Subramanium: This is a profound and valid question.

Justice Joymalya Bagchi: I would understand you to mean that Article 25(2)(b) is a narrow window of legislative competence, in accordance with law, qualifying clauses (c) and (d) of Article 26, namely the management of property. That is, any general law can interfere with the right of a denomination to hold and manage property.

But when it impacts matters of religion, the legislative competence is confined to Article 25(2)(b), that is social reform or social welfare alone. So a general law cannot make an inroad. This is what you are trying to say.

From there, my next clarification is this. What is social reform and social welfare? Will the State be within its limits if it says that it is enforcing constitutional duties while making a law under the ambit of social reform?

Because the State has constitutional duties under the Directive Principles of State Policy, and it also has a duty to enforce fundamental duties of citizens. Would these qualify as social reform legislation?

Justice BV Nagarathna: So there is no need to go into this test of essential religious practice. The impression has been created that it is only essential religious practice that has to be protected and nothing else.

Senior Advocate Gopal Subramaniam: This is, if I may say so, if the judgments suggest, and I personally do not think they go that far as to suggest, that if it is not an essential religious practice, it degenerates into a non-religious practice or becomes a practice capable of regulation. I do not think any judgment goes this far.

But if the essential religious practice test is intended to aid in discovering the true components of a particular religion, then it is assistive in character. That is all. And that can be done by courts. Your Lordships can deal with any branch of law to discover something as complex as religion. It is not very difficult.

Justice Nagarathna: Courts cannot sit in judgment as to what is an essential religious practice.

Justice Joymalya Bagchi: Since you are positing the intra-debate within a denomination under Article 26(b), instead of locating it in Article 25(1) or Article 19(1)(a), you would have to place it within the word “manage”. Does “manage” include internal dialogue? We would have to interpret the word “manage”.

Senior Advocate Gopal Subramanium: Yes, it has to be located there. “Manage” would include debate over the affairs of the denomination. It is perfectly plausible and consistent to read it that way.

Senior Advocate Gopal Subramaniam: At the same time, for the purposes of practice and propagation, there must be a collective form. A denomination must have the ability to acquire and hold property, and to establish and maintain institutions. Article 26 is not confined merely to management. It extends to establishing, maintaining institutions, and regulating affairs in matters of religion.

I am urging this court takes a view that nothing below this level is non-justiciable. The only area of non-justiciability is a devotee’s faith in a particular philosophy or towards a particular deity. That is distinct from a secular scrutiny of how rights are treated.

If one remains within the constitutional framework of Articles 25 and 26, there is no bar on the Court inquiring into and determining what constitutes a religion, what its basic tenets are, and how that religious faith is asserted.

Senior Advocate Gopal Subramaniam: Article 26 does not exist in isolation. It operates through Article 25 and in the context of individuals coming together to form an organisation for the purposes of practice and propagation.

A denomination is not necessarily a subset in a narrow sense. The entire faith can be comprehended within a denomination, and within that, various sections may also exist. Cases such as Shirur Mutt and others involving particular sections would still fall within this framework and would be able to assert rights under Article 26.

What is significant is that the framers were conscious of the administration of religious endowments. Article 25 was intended to be an expansive guarantee of freedom, subject to public order, morality, and the rights of others. No individual right can be exercised in violation of the rights of others, since all individuals have equal claims.

Senior Advocate Gopal Subramanium: This need not necessarily be located in Article 19(1)(a). It can be located within Article 26 itself. Even though there is an institutional setting, institutions function through individuals. When a person is part of a denomination, it is open to that person to express views within the discipline and framework of that denomination. That too is a protected freedom.

The freedom to navigate matters of religion is a matter of personal liberty under Article 25(1). But when a person adopts a creed or philosophy and becomes an adherent of it, that person then operates within the framework of Article 26. At that stage, one cannot seek to alter the doctrine of that philosophy while remaining a member of the denomination.

Under Article 25(2)(b), the expression “all classes and sections of Hindus” not only addresses exclusion based on caste, but also includes denominations. Access to temples must be open across denominations. If read this way, there is an organic relationship between Article 25(1), Article 25(2)(b), and Article 26.

Senior Advocate Gopal Subramanium: Denomination is where, collectively, people come together and express their worship and their faith. All this falls within the freedom under Article 26.

An important question was raised as to what members of a religious denomination do when they arrive at an institution. For long, they exercise rights under Article 25(1), but collectively they also exercise freedoms under Article 26. The freedom under Article 26 is therefore not entirely divorced from the rights exercised by members of denominations, because within the institution they continue to exercise their Article 25(1) rights.

At the same time, within a denomination, there can be internal differences. There can be proponents and opponents. A denomination has the freedom to engage in internal discussions and debates. It is not that a denomination represents a single fixed position taken by all its members. There can be deliberation, debate, and eventual consensus. That is also a part of the freedom under Article 26.

Senior Advocate Gopal Subramaniam: Therefore, the expressions in Article 25(1) must be given a wide and expansive meaning, because they involve the exercise of individual autonomy, even in matters of choice of religion and the extent of its practice. No two individuals may practice the same faith in exactly the same way, even if they belong to the same religion, yet both have complete freedom to practice as they see fit. That autonomy is protected under Article 25.

This is distinct from freedom of conscience. The freedom of religion carries with it not only the right to actively engage in religion, but also the right to define for oneself the extent to which one will exercise that right.

To this extent, in the realm of individuality, it is closely connected with the inner dignity of the person.

Senior Advocate Gopal Subramaniam: But all these are subject to public order, morality and health, and to the other provisions of this Part. The reason for “subject to the other provisions of this Part” is that when one exercises these freedoms in the individual sphere, one must be mindful of the rights of others who are equally entitled to exercise the same freedoms.

In that sense, Article 25(1) is a foundational right of considerable breadth. It is also necessary to look at “conscience” separately from the right of religion. Conscience can be seen as a more detached faculty, through which a person absorbs religious philosophy and truths.

Each religion has its own philosophy, its tenets, and its practices through which those tenets are realised. The extent of belief and practice is also left to the individual, depending on the tenets of that faith.

Senior Advocate Gopal Subramanium: Individuals have the freedom under Article 25. Now, when we come to the word “profess”, it can mean professing in private, and it can also mean professing in public. That is part of religious freedom.

The next word is “practice”. Practice can take place in private, and it can also take place in other settings. And then there is the right to “propagate” religion. If a person has sufficient knowledge and scholarship and wishes to share his understanding of faith or religion, he can certainly propagate it. He can give a lecture, he can speak, he has that freedom under Article 25(1).

Senior Advocate Gopal Subhramiam: It begins with the personal journey of an individual in accepting a philosophy as a religious philosophy. Religion therefore has more components than what is often reflected in judgments. Broadly speaking, it has four aspects, all of which are covered within the freedom of religion under Article 25(1).

The first is the doctrinal or philosophical content of a particular faith. The second is the practices associated with that philosophy. The third is the right of worship. And the fourth is the extent of belief.

These four areas together constitute the full scope of religious freedom.

Senior Advocate Gopal Subramanium: All persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. These words are of significance because they must be understood in an expansive and fundamental manner, especially before we turn to the concept of denomination in Article 26.

Article 25, in my submission, represents the expanse of religious freedom. It deals with multiple facets of that freedom. Before we come to the expressions “profess, practice and propagate”, one must first understand the concept of freedom of religion itself.