The hearing in the Sabarimala reference case on Tuesday saw the Supreme Court warn lawyers against making arguments that could project any one religion or Indian language as superior to others [Kantaru Rejeevaru v. Indian Young Lawyers Association]..A Bench of 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 heard the case.Certain submissions by Advocate Ashwini Upadhyaya today saw the Court sound a warning against making arguments that could pit any religion against another.Upadhyay argued,"It is frequently said, all religions are same. Not at all. I have given the five tenets of all religions, totally different."He also presented various Hindu religious texts in the courtroom to argue that these texts do not say that those who do not follow them go to hell. The Bench was prompt to cut short this line of argument."You are going beyond the subject and issue being discussed by every one of us. You said, there are 52 alphabets in Sanskrit, one of the finest languages in the world. Similarly, Tamil has 247. Don't go into all those areas. Confine yourself to the point in issue," warned Justice R Mahadevan."In Kannada, there are 52. See all (Indians) are equal. Don't go into superiority in the court of law please," added Justice Nagarathna."We have to stop you. You are in a public platform," Justice Amanullah said."My submission is this. Dharma and religion are not same, and all religions are also not same. Entire world is burning due to religious conflict," Upadhyay replied.As arguments progressed, Justice Nagarathna told Upadhyay,"Every religion has its own Dharma.""With utmost respect, all religions don't give Vasudhaiva Kutumbakam concept, one earth one family, concept, don't have-," Upadhyay began to reply."Please don't argue like this. It is not in good taste," interjected Justice Sundresh."It may be some bitter truth," Upadhyay persisted."Absolutely not, Mr. Counsel. You have to understand the scope of this argument," Justice Amanullah weighed in.CJI Kant intervened to calm tempers before Upadhyay wound up his arguments..The matter is connected to the Supreme Court's 2018 verdict allowing women of all ages to enter the Sabarimala Temple in Kerala, overturning a custom restricting the entry of women of menstruating age to the hilltop shrine.In November 2019, the Supreme Court pronounced its judgment on the review petitions against the 2018 verdict but did not decide the matter one way or the other. Rather, the Court framed seven larger questions touching on religious freedoms, which is now being heard by the nine-judge Bench.The reference verdict may also have an impact on other cases involving faith-based customs in other religious communities..Among other submissions, Upadhyay also maintained that the Sabarimala Temple has a distinct sanctity, which should be respected."There are lakhs of mosques, but Mecca Medina have distinct sanctity. There are lakhs of churches, but Jerusalem church has a distinct sanctity. Similarly, there are 15,00 Ayyappa temples but this one (Sabarimala) has a distinct sanctity," he said.He contended that religious freedoms under Articles 25 and 26 are among the most restricted fundamental rights. He submitted that the Court's verdict will not only decide the seven questions framed by it on religious freedoms, but also decide the future of the country itself for the next 25 or so years..Essential religious practices immune from State interference even on grounds of social reformAdvocate Nizam Pasha appeared for an intervenor who defended restrictions on entry to the sanctum sanctorium (most sacred area) of dargahs.He urged the Court to accept Justice N Rajagopala Ayyangar's concurring opinion in the case of Sardar Syedna Taher Saifuddin Saheb v. The State of Bombay that essential religious practices are impervious even to social reform-based State interference. "In the name of social reform, you can't take away the core or identity of a religion," Pasha argued.He went on to argue that a question of whether one particular practice is an essential Islamic practice may be ill-founded, since different sects ascribe authenticity to different texts about Islamic teachings. He recounted that because of this difficulty, the right of some who believe that the wearing of the hijab is mandatory was interfered with on the ground of school discipline."Why? Because the High Court proceeded on the basis that it (wearing of Hijab) is not an essential religious practice," Pasha recounted..Rights of non-believers not the focus while interpreting religious rightsSenior Advocate Sridhar Potaraju contended that the rights of non-believers are irrelevant when it comes to interpreting religious rights."For a religious person, Dharmic values that my rituals or my religious texts prescribe are paramount. Someone who is an atheist or a non-believer would have to be discarded (even going by Supreme Court case laws) when you are testing my faith, my rights," he argued..Articles 25 rights are hollow without Article 26 rightsSenior Advocate Madhavi Divan made arguments supporting the rights of a community that worships sacred groves in Rajasthan. She raised concerns that such a community may not strictly satisfy the definition of a "religious denomination." However, she argued that such a community's right to religious freedom would be hollow if it is not given rights to manage its own religious affairs as well under Article 26. "Even to enjoy Article 25, we need Article 26 rights. The relationship between the two is symbiotic and reciprocal...Article 26, even though it may have its own status, it is ultimately a means to an end - to ensure that the individual under Article 25 is being fully facilitated," she said. .Making rights of religious denominations under Article 26 subject to Article 25 restrictions could have discriminatory effectAdvocate Eklavya Dwivedi argued that the restrictions laid down in Article 25 are not applicable to a religious denomination's rights under Article 26. Any contrary interpretation would lead to a discriminatory effect, he added. "A reference to Hindu religious institutions by virtue of an explanation (in Article 25) covers Sikh, Jain and Buddhist religious institutions as well. Please see the consequences of applying Article 25(2)(b) to Article 26. Hindu, Sikh, Buddhist religious denominations get covered, but Islamic, Zoroastrian, Christian, etc. religious denominations are excluded. So it has a discriminatory impact on other religious denominations," he said. Justice Nagarathna expressed reservations about this view, remarking that Article 25's restrictions were meant to target caste discrimination in Hinduism. "In the other religions, there is no exclusion. It is specific to Hindu religion, that is why the Constitution framers were conscious of the fact that Hindu temples should not exclude, particularly the 'depressed classes', as they were called earlier. Caste system is not there in other religions, so why should they write about other religions in the Article? They are conscious of the reality of the Hindu society," she said."That may not be true. Even in Islam, there have been divisions within different sects of Islam," replied Dwivedi, adding that the Court should not to take any interpretation of Article 25 (2)(b) that could have a discriminatory effect. .State can step in if secular activity is affected by religious activitiesA counsel's contention that the government cannot interfere with a religious denomination's rights by citing grounds in Article 25(2)(a) [regulating economic, financial, political or other secular activity associated with religious practice] led Justice Nagarathna to comment,"Suppose there is a temple, they want to have an annual festival, like you have the annual cart/chariot festival. You can't block all the roads around the temple - that has nothing to do with religion. You do your religious activity, but not by blocking the roads. The State can always step in."She added that while the Court cannot sit in judgment over the religious affairs of a denomination, some interference is permitted when secular activities are affected. "Suppose they say they have a particular way of worship. That is the autonomy which is given in the manner of worship. Court cannot sit in judgment and say, no this cannot be done...But if a secular activity is also affected, then the State can step in," she said."Those secular rights can be taken care of under Article 26(d)," the counsel replied..Others who made submissions today included Advocate Nachiket Joshi who said that Article 26 rights must be viewed as complementary to Article 25 rights. Article 25 cannot supersede the rights of a religious denomination under Article 26, he said. He went on to assert that temples are like sovereign places with their own unique features, which must be respected. Advocate Mathews Nedumpara also opposed the 2018 verdict in the Sabarimala temple case. He said that the verdict should be declared as void. Another lawyer added that rituals and customs at Sabarimala cannot be termed as "religious cruelty" as projected by a section of people or some activists. If there is no religious cruelty, there was no reason for the Sabarimala Temple's customs to come under the Court's scrutiny, he added.Advocate Fauzia Shakil argued that the State's interference with fundamental rights cannot be such that it obliterates the right. Any State interference must remain proportionate and anchored in public order, morality and health, she said. She added that any person seeking to question religious freedoms must show that they are personally aggrieved because their religious rights have actually been violated. .The hearing will continue tomorrow.
