Sabarimala Reference Highlights: A Hindu is a Hindu, can go to any temple, says Justice Nagarathna

Senior advocate Shamshad has concluded the submission.

Justice Amanullah: There is a reason also. The reason was that if everybody goes from the house who looks after their children from the house, preferably because she takes care, and all the reward she gets…if she gets the time, if she has the capacity, she can also go, but then the difference comes, whether she will stand at first. These are all managed by tradition, right from the Prophet's time himself.

Justice Amanullah: Shamshad, you should, at this very point, for everybody's consumption, elaborate for everybody that right from the beginning, there is also no dispute that it started from the holy prophet himself.

Senior advocate Shamshad: After this matter was filed and the first judgment was passed, during that time, this petitioner came to be filed that why Muslim women should not be allowed to enter into the Mousque. The petitioner is saying that they are a PIL petitioner, they are saying that I have written a letter to the particular mosque, and they are saying that there are no provisions. So that is the background, and the scheme of the petition is that my Articles 14, 15, 19, 25 and up to 25 is violated, there is no mention of Article 26.

In the petition, the prayer is of such a nature that I should, women should be permitted to stand in the first row, women should be permitted to stand in first line.

They also try to give an inference as if inside the mosque, there is some place, which is equivalent to the sanctum santorum. Sanctum santorum has no place in the mosque…If that is the case, this petition has no locus.

Justice Nagarathna:  Article 19 is only for citizens. Some other articles, like Articles 20, 21, 14..they are for persons.

Datar: In fact, Article 15 is citizen. Article 16 is citizen. Article 19 is citizen.

Justice Nagarathna: Articles 14, 20, 21 also persons.

Justice Sundresh: Even 25 is citizen..no persons.

Data: In fact, another problem is Justice Nariman mentions person will be only natural person. That also may not be correct because wherever the Constitution wants to use person, it includes juristic person, and when it wants to use a natural person, it says citizen.

Justice Nagarathna: Basically, it's for natural person not for jusristic person… now they are saying idol will have a conscience. Will the idol have a conscience?

Datar: That’s a matter of belief.

Justice Sundresh: Certain fundamental rights, they can say.

Datar: To say idol will not get Part 3 (fundamental rights) rights as a general position may not be correct. Once you hold, it's a juristic person, then logically, all, where a person is, they'll be entitled to the right.

Justice Bagchi: …need to say, contextually consider the word person in relation to the idol….contextually, we will have to read in the Part 3 rights.

Datar: My submission is. So.. the word morality should not include constitutional morality. I would recommend Lordship may see para 176.7 of Justice Nariman's judgment in the five judge case, where Lordship recognises morality is a very difficult word to define.

Datar: I am just submitting like Article 25... sales, customs, usages that are prevalent unless the state under Article 25 to be decided now, the time has come to change and the dynamic constitution... what was considered to be unacceptable earlier now is acceptable today. That's a different issue, I am on the question of whether morality can include Constitutional order.

Senior advocate Arvind Datar: I am appearing for Nair Service Society with Mr Vaidyanathan..abd it was decided that I will stick to only constitutional morality.

Divan: Denominational autonomy is sacrosanct and must be preserved, or I should have said ought to be preserved by and protected by the court.

Divan: The Puttaswamy judgment is extremely, is extremely important because, apart from reasonable restrictions,etc, which you already have in the constant context of Article 19, Puttaswamy, we read it that proportionality now is a test to be applied also in the context of Article 21. So we've come that far.

Senior advocate Shyam Divan appears for interveners. He is representing people from different faiths.

Krishnakumar: If the constitution makers intended that they should relate to the same subject, they come under the head of religious freedom, no doubt about it, that is the part under which both come, but there will be no occasion to provide Article 25 and Article 26 both separately. That’s very important, my lord. If Article 26 is merely an extension of Article 25, there would have been no occasion for the constitution makers to separately provide for it.

Justice Sundresh: Because they never expected an argument like this. They put it separately so that the administration management becomes separate.

Justice Nagrathna: Not only that…even the Article 26 (d) is also…denominations to follow the registration act, transfer of property act with regard to their properties, and not say I am a denomination and I am separate, nobody can touch me.

Krishnakumar: Provision of the constitution itself is the grundnorm. In the hierarchy, the grund norm is the highest, from and out of which everything else emanates all other forms of state action, be it legislation, subordinate legislation, or even further down any kind of regulations..

Therefore, Article 26 is the grundnorm.

Krishnakumar: My lords, repeatedly referred to this and that is very important. Article 25 uses the expression religion, Article 26 uses denomination. The easiest way of rationalise.

CJI: Article 26 is also…as religious affairs. The religious is there, but the talks of religious affairs.. Article 25.. talks of religious practices.

Krishnakumar: That’s right my lord, and there, the important distinction I want to highlight is this. Article 26 talks of denomination or section thereof, that’s important, my lord, the section also becomes important. Now, the section there becomes important for one important purpose; there may be instances, rare, in general understanding of what a denomination is. There may be a group of people who may not fall within that. But they will still be a section of the denomination. Is really a purpose of I am highlighting it.

Krishnakumar: Therefore, my Lords, this is I'm highlighting this only to show how there are several belief systems..there are several practices connected to that. All may come within the larger umbrella of Hinduism. It could not, in my respectful submission, be appropriate to look at Hinduism as being broadly covered by the six broad schools...

Krishnakumar: With reference to a particular deity, my lord, we we have this wonderful idea of ishta devata where in the Hindu faith there are people who propitiate particular figures or forms of the deity. That's recognized in Hindu law and in fact we have the deity being propitiated in different forms you go to the tip of the country, my lord, Kanyakumari is the place where the mothee is in the form of a kanya, a small child.

Krishnakumar: When we move on to Article 26, we are looking at a group of persons who exercise their belief system in common. Perhaps this might be a more simplified approach to the entire thing, because the greatest. What would happen is if Article 26 is seen as some kind of a derivative of Article 25. In terms of my lords, saying that it is only the collection or a conglomeration of Article 25, several complications would arise.

Another counsel has started their submission before the court.

The nine-judge bench included Chief Justice of India Surya Kant, Justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi.

Hearing to resume after break

Venugopal: The question of what is religion and what is a religious practice ought to be gone into only as a matter of evidence, by taking evidence. And if it cannot be done by looking at the scriptures, by taking evidence of experts.

Venugopal: I would request my words to keep in mind that whatever my Lords does here should withstand not only the test of whether it is appropriate for a country 1.45 billion, but also that it must withstand the whole constitution scholars. So as a matter of logical consistency, I would say Article 25 (1) is an individual right which is subject to these.. my Lords restrictions, that is the limitations.

Senior advocate Krishnan Venugopal: We are concerned for all religions about the increasing instances of state intervention methods. In the practice of all religions, whether through legislative or judicial intervention

Justice Amanullah: Suppose you don’t want to be called a Hindu, but you still have a practice and worship is a part of religion. Now, if you belong to the community, you may not be identified as a Hindu per se, but if you are governed by the personal laws of the Hindus, the marriage laws of the Hindu, then automatically you come under the Hindu denomination, and then the worship is a facet of the religion. You come under the Hindu religion. How are you ousted?

Muthuraj: I request you, Lordships, looking at the diversity of the Hindu religion, when the question comes before the Lordships for testing, first, whether it is a religious practice or not, if it is not a religious practice, you don’t have a protection over there. If it’s a religious practice, I request your lordships don’t go further to test whether it is an essential or integral part. And how will your lordships are going to test it is a religious practice for the principles of the believers of the group, not as a religion as a whole.

Muthuraj: How, your lordships, going to test a practice that is a religious practice or expand narrowed concepts…essential or integral or religious practice and with which text your lordships are going to test it.

If your lordships are testing the Christianity, they can take a Bible…or a Quran is can take it and verify whether it’s a religious practice or not. How do we test a Hindu religious practice?

Senior advocate Jayanth Muthuraj: The problem for us, my lord why we are before you for 75 years that interpretation given for the religious denomination has shut the rights of the majority of the Hindus. I may say my lord is coming from Tamil Nadu and Kerala, 95 per cent do not belong to any denomination, so-called denominations approved by this court. So, where do we go?

Senior advocate K Radhakrishnan: As far as this matter is concerned, unity in diversity is a hallmark of this multilingual and multi-religious, secular society.

I am appearing on behalf of the senior member of the Pandalam Palace, and the foster father of lord Sri Ayyappa.

Kaul: There is never any harm in all humility. If knowledge and wisdom comes from any source, any country, any university, it should be welcome. We are far rich of jurisprudence not to accept all forms of knowledge and information that time.

Justice Nagarathna: But not from WhatsApp University.

Kaul: For morality, it can't be just anyone's hypersensitiveness. It has to be something abhorrent to civilised society. It has to be something that cannot be reconciled at all. That is what morality is, where morality and state regulation on the grounds of morality come in, which is referred to. So the threshold has to be high for it, and from the point of view and the lens of the religion in question.

Kaul: Religion and the validity of the particular religious practices are simply not the subject matter (of constitutional morality).

Kaur: Wherever the legislature or the makers or the framers of the Constitution wanted to provide the regulation in any form, they provided that to read into social reform. Grounds which are not provided in the Constitution are actually altering the textual basis, and it's not if those words are read as they are, don't lead to. Meaning there's a conscious reason by what is provided where it is provided.

Kaul: My respectful submission is that even Devaru said, it’s not about one being subject to the other, it’s about harmonious construction, and in all matters of the religion, ordinarily, Article 26 (b) will have its full flow, except for on the question of the entry in the temples, which would otherwise render the interpretation of the Article 25 (2) (b) negatory.

Justice Nagarathna: Even on the touchstone of public order, morality and health, if a legislation is made under Article 25(2)(b), you can’t that the right of the religious denomination will still prevail. Ultimately, it is subject to public morality, order and health. That could be the basis for social reform.

Kaul: Therefore, a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rights and ceremonies are essential according to the tenets of the religion they hold, and no authority has any jurisdiction to interfere with their decision in such matters. This is necessary to ensure preservation of the community bonds that hold the community together as a unit.

A nine-judge bench has resumed the Day 8 hearing of the Sabarimala reference with the submission of senior advocate Neeraj Kishan Kaul.

In the last hearing so far, the arguments have been concluded on behalf of the Centre, temple devotee organisations and the Travancore Devaswom Board. 

The Supreme Court will continue the hearing today with the submission of other parties.