Sabarimala reference hearing: Live updates from Supreme Court - Day 9

Justice BV Nagarathna: If there is polarisation, then the state will step in under Article 25(2)(b) for social reform.

Sr Adv Divan. Polarisation is in the context of competition.. I am the denomination and you are not.

Divan: What if my group does not meet that test, but my neighbour’s group does. How then will our respective rights to freedom of conscience and to practice and propagate religion be worked out. Because even within the range of rights under Article 25, the freedom of conscience is the most personal and private. It is an individual right at its highest level.

So the question really is whether the enjoyment of that individual right can be made contingent on whether or not one belongs to a recognised denomination under Article 26.

That, in my respectful submission, would create an imbalance, because Article 25 guarantees rights to all persons, whereas Article 26 protects only denominations.

Senior Advocate Madhvi Divan:... if all persons are equally entitled to the freedom of conscience, the right to practice, propagate and profess, then how are these two provisions to be read together? All persons are equally entitled. That means that irrespective of differing religious affiliations, each individual is entitled to the support of institutional rights. Let me explain this. It may be that I belong to a group which does not fall within what is described as a denomination in the sense of a common faith, a common name and a common organisation, and I emphasise organisation.

Justice Ahsanuddin Amanullah: This is the aspect of protection. The right to manage cannot mean the absence of structure. For everything, there has to be a modality. There cannot be anarchy. Take a dargah or a temple. There will be elements associated with the institution, the manner of worship, and the sequence in which things are done. Somebody has to regulate that. It cannot be that everyone says I will do whatever I want, or that the gates remain open at all times without any control. So the question is, who is that body that manages? That is where protection comes in, because regulation is necessary.

At the same time, it cannot transgress constitutional limitations. There cannot be discrimination on the broad constitutional parameters. But every institution must have norms. And those norms cannot be individually determined by each person. There has to be a recognised body which lays down those norms, and that is what is granted protection.

Advocate Pasha: So it comes to Articles 25, 26(b), and 25(2). In this formulation, the right of the collective to internal management is what, in my submission, is covered under Article 26(b), and the right of actual practice is covered under Article 25.

What lies at the cusp of this outward manifestation of practice and internal management is entry. Because if one looks at it from this inside-outside perspective, the point at which the inside and the outside meet is entry into a religious place. That is why the question of entry is not simply under Article 25 or under Article 26.

The Constitution makers consciously chose to keep a certain aspect of entry, namely a policy prescription or constitutional imperative under Article 17, built into Article 25(2), and only to that extent.

For that reason, as Devaru itself says, the right to regulate entry is part of management. However, insofar as entry of oppressed classes into places of worship and the imperative of Article 17 are concerned, when read with Article 25, the second part of Article 25(2)(b) becomes a caveat to, or a takeaway from, the right to religion itself.

Pasha: This system, I submit, clearly constitutes a religious denomination. If one looks at the teachings attributed to Hazrat Nizamuddin Auliya, there is emphasis on adherence to Islamic practices such as roza, namaz, hajj, zakat, and above all, faith.

Pasha: By way of background, a dargah is a place where a saint is buried. Within Islam, there are differing views on the status of saints after death, but in the Sufi system of belief, there is deep reverence for the place where a saint is interred.

It was argued in the writ petition that since people of all backgrounds visit places like the Ajmer Dargah and the Hazrat Nizamuddin Dargah, they cannot be considered religious denominations. I will address that issue later. However, it is important to note that in Dargah Committee, the Court proceeded on an assumption without deciding the question of denomination, whereas in Devaru, it was clearly held that the mere fact that non adherents are permitted entry does not take away the denominational character of a place of worship.

The Sufi system of belief in India consists of several major orders, including the Chishtiya, Qadriya, Naqshbandiya and Suhrawardiya. The present case concerns the Chishtiya order.

Advocate Pasha: The reason we were constrained to file this intervention application is that a writ petition was filed before the Delhi High Court following the Sabarimala judgment. The petitioner, a law student who had come to Delhi for an internship, visited the Hazrat Nizamuddin Dargah and was prevented from entering the sanctum sanctorum, the small enclosure housing the grave. She claimed that this violated her rights as declared in Sabarimala. The relief sought before the High Court was a declaration that the practice of prohibiting women from entering the sanctum sanctorum of the Hazrat Nizamuddin Dargah is illegal and unconstitutional.

This raises the issue which has been troubling the Court, namely, whether a complete third party, a non-believer, can enter a place of worship and demand that matters of faith must yield to their individual claims. This is a stark example of such a situation.

Advocate Nizam Pasha begins submissions