The Supreme Court on Thursday reserved its verdict in the Sabarimala reference case, which concerns seven larger legal questions on the scope of religious freedom in India..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 matter for 16 days before reserving its judgment today..The matter is connected to the Supreme Court's 2018 verdict allowing women of all ages to enter the Sabarimala Temple in Kerala. The 2018 judgment overturned 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. Instead, it framed seven larger questions touching about religious freedoms in India for consideration by a larger bench of the Court.These included deciding on the interplay between Articles 25 (freedom of conscience and religion) and 26 (freedom to manage religious affairs) on the one hand and the right to equality under Article 14 of the Constitution..Today's hearing began with rejoinder submissions by Senior Advocate Mukul Rohatgi, who made arguments tied to religious practices in the Parsi community. Notably, the reference verdict could also have an impact on excommunication practices among Parsis. Among those before the Court is a Parsi woman who challenged her excommunication for marrying a Hindu man. Rohatgi, however, argued today that such excommunication practices are no longer prevalent. "In the last seventy-five years, there has in fact been no excommunication at all. 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," he said. .Senior Advocate Gopal Subramanium argued that there is a distinction between a religion and a religious denomination."The two expressions carry distinct constitutional meanings. The nature of individual freedom under Article 25(1) is not altogether the same as denominational freedom under Article 26," he said. He went on to argue that the scope of judicial intervention with religious rights or a religious denomination's rights is relatively limited. "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. Under Article 14, irrationality which borders on arbitrariness, caprice or extreme irrelevance may invite invalidation. But in the context of Articles 25 and 26, while rationality may certainly assist the Court as a tool of inquiry, the standards of rationality applicable there are not the same as those under Article 14," he said. He also expressed disagreement with certain observations made by former Chief Justice of India DY Chandrachud in the electoral bonds judgment. "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," he said..Senior Advocate Rajeev Dhavan too argued on the limited scope of judicial interference in religious matters. He opposed the use of the essential religious practices test as the dominant factor to determine whether a religious practice can continue. "There is a difference between a threshold interpretation of essentiality and integrality. What happened in Sabarimala? They said, 'this is not essential to your faith.' What was the result? It was a limitation, and they had no Article 25 rights. The Article 25 rights, if you treat it as a limitation, Article 25 rights will completely disappear. Likewise, in Sabarimala, if you did not give them denominational rights, Article 26 disappears. This is the importance of the concepts of essentiality and integrality on the one hand, and denomination on the other. If they are threshold requirements, the effect will be Article 25 and 26 rights will be invalidated and they can never have the rights... Your Lordships are not the high pope or priest to wander into this particular area and essentiality and integrity will take your lordships straight into it," he said. .Senior Advocate Rakesh Dwivedi began his rejoinder by expressing concerns about the expression, 'Hinduism is a way of life.'"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. I would respectfully hope that Your Lordships do not reduce Hinduism merely to a way of life," he said. He went on to argue that religious denominations were given special rights under Article 26. He opposed the view that a clause enabling the State to make laws on religious matters in the interest of social reform under Article 25 could be invoked to restrict a religious denomination's rights under Article 26..Amicus Curiae Senior Advocate K Parameshwar supported Senior Advocate Subramanium's submissions that the validity of religious rights should not be judged based on factors such as rationality."There is a huge difference between faith and rationality. The moment you bring in rationality, Articles 25 and 26 goes out of the Constitution, with all due respect."At the same time, he clarified that courts can interfere with religious practices if such intervention is necessary to preserve the liberty or integrity of people. "But Your Lordships, at the same time, will not say that other fundamental rights will not apply to a case under Article 25 and 26. Female genital mutilation being the best example. If your lordships are called, in exigent circumstances, that it is needed to preserve liberty or bodily integrity of people - it doesn't matter if it is claimed as a right under Articles 25 and 26 - your Lordships will employ Articles, 21, 19, 17. Your lordships will ensure that people have access to religious institutions. At the same time, it does not mean, it will come at the cost of Articles 25 and 26," he said. He also flagged the drawbacks of relying on the essential religious practices (ERP) test to decide on the validity of religious practices."What the ERP doctrine tends to do is privilege certain practices over others. The easiest critique of the ERP doctrine is, one, that it is not Constitutionally there in the text," he said..Justice Sundresh observed that the test also tends to be elitist in a way. Parameshwar agreed."It is very 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 denting my identity under Article 21," Parameshwar said.Justice Nagarathna suggested that ERP's use could be retained, but not to invalidate religious practices altogether."ERP doctrine can be used only as a tool to say that 'a practice is so essentially religious, it's not secular.' But you (courts) can't say 'it is not a religious practice and therefore I won't protect you.' It is an aid, not a test," she said.Parameshwar went on to urge the Court to give a broad meaning to the term religious denomination. He acknowledged the foreign origins of the concept of 'religious denominations' and urged the Court to give it an Indianised meaning. "We have inherited an Irish term; it is up to your Lordship to Indianise it ... Please Indianise it so that the maximum coverage is there for Articles 25 and 26... Perhaps our reading of the Constitution must be more indigenous. How the term Swaraj was employed by Mahatma Gandhi, by Aurobindo, perhaps something that is nearer to our practices, to understand how we read Articles 21, 25, 26," he said. .As the hearing drew to a close, Senior Advocate Dhavan raised an objection that the amicus had made irrelevant submissions. "The amicus has given a lecture on nothing to do with what we argued or what they argued. Are we to treat him as the inner chamber of judges, which will then advise your lordships? Because what he has argued has got nothing to do with what we argued or what they argued," he said.The comment was sharply criticised by Solicitor General Tushar Mehta. "I strongly object to this sort of objection raised to an amicus. An amicus is appointed by Your Lordship. He is not supposed to satisfy either Mr. Dhavan or other side," said Mehta. .CJI Kant, meanwhile, tried to calm tempers. "Mr. Dhavan, the point is that he (amicus) has given his own perspective about Article 25 and 26, read with other parts of the Constitution. You have a right to disagree. All of you have a right to agree, disagree, or partially agree or disagree with the amicus. All of you are entitled to submit your revised comprehensive compilation (in two weeks)," CJI Kant said. .[Read Live Updates]
