Sabarimala reference hearing: Live updates from Supreme Court - Day 8

CJI Surya Kant: we respect all eminent persons, jurists etc. but personal opinion is personal opinion

Kaul: There is no harm in drawing from all sources. If knowledge and wisdom come from any source, any country, any university, it should be welcomed. We are far too rich as a civilisation not to accept all forms of knowledge and information.

Justice Nagarathna: But not from WhatsApp University

Kaul: I am not getting into that. I am not into which university is good or bad, which is really inconsequential to this debate..... The point is simply that wherever knowledge and information come from, they must be accepted.

Justice MM Sundresh: You are saying that there is no independent concept of constitutional morality under Articles 25 and 26. At best, it is the spirit of the Constitution. If it is to operate, it should ensure the benefit of those exercising the freedom of religion.

Kaul: Now, the framers made a conscious distinction. Article 25 is subject to public order, health, morality, and also to the other provisions of Part III. Article 26, however, is subject only to public order, health, and morality. It does not include the additional limitation of being subject to the rest of Part III. When Dr. Ambedkar dealt with this issue, the draft provision corresponding to Article 26 did not initially contain these limitations. It was then suggested that limitations should be introduced, and what was ultimately included were only public order, health, and morality. The broader limitation of being subject to other provisions of Part III was not added. If constitutional morality is read into “morality”, then we would be introducing far more than what was intended by the framers. That would effectively expand the scope of limitation beyond what was consciously provided. Would it be appropriate for the Court to supply such an expanded meaning when the framers deliberately chose not to include it?

Senior Advocate Neeraj Kishan Kaul: My respectful submission is twofold. First, the context in which “constitutional morality” was discussed in the Constituent Assembly and related debates was in the realm of governance. It was never intended as a limiting principle for interpreting religion under Articles 25 and 26 or the rights flowing from them. Second, there is a danger in importing constitutional morality into these provisions. Constitutional morality would bring within its fold all fundamental rights, the Preamble, and the entire constitutional scheme. It pervades the whole Constitution.

Justice Ahsanuddin Amanullah: Before we move, can you assist us on whether the word “morality” in this context can include “constitutional morality”? Constitutional morality may be a fluid concept. Morality per se may be more stable, but constitutional morality can be dynamic and evolve with context. Even if one were to read constitutional morality into Articles 25 and 26, given the Constituent Assembly debates, would it not still ultimately lead to the same conclusion, that it has to be understood in a certain way?

Kaul: I cannot put it better. I agree. In fact, during the Constituent Assembly debates, when the precursor to Article 26 was being discussed, the words public order, health and morality were not originally present.

Justice Nagarathna: When a legislation is tested on the touchstone of public order, morality and health, and is enacted under Article 25(2)(b), it cannot be said that the right of a religious denomination will always prevail. Those rights are themselves subject to public order, morality and health. That can form the basis of social reform or social welfare legislation.

Kaul: My respectful submission is that even Devaru does not say that one provision is subject to the other. It speaks of harmonious construction. In all matters of religion, ordinarily Article 26(b) will have full play, except in the limited context of entry into temples, because otherwise Article 25(2)(b) would be rendered nugatory.

Senior Advocate Neeraj Kishan Kaul: But Devaru does not lay down, as a principle of law, that Article 26(b) is subject to Article 25(2)(b) in all situations. It only says so in a specific context. I will read one paragraph, which I have reproduced in my notes.

It says that Article 26(b) is subject to Article 25(2)(b) only in the context of entry into temples. Otherwise, both rights are coequal and of equal strength. In fact, it goes on to say that in all other religious matters, Article 26(b) should be given full play, except for the issue of entry into temples.