Sabarimala Reference in Supreme Court Day 9 Updates: Can’t block roads for religious activity says Justice Nagarathna

Advocate Gowri: I'm appearing for an intervener. This is the Bombay Parsi Panchayat and.. all our senior counsels have argued these matters of law and historical context with great.., so I'm not repeating any of it. I have prepared a very short note.

I'm not going through the note at all, but at the end of the note, I've also prepared a flow chart, which I'm hoping would be of some assistance to your lordships. It traces how a state action can be. How can you actually analyse the state action with regard to denominational rights and religious freedom? I only wish to make three very short.

1. The first is specifically in the context of the Parsi matters before you. Empathy is very important. There is an emotional cost being paid in this particular set of circumstances, but it cannot blur the constitutional boundary between religion and regulation and religious autonomy.

2. Secondly, what may appear as a narrow accommodation today risks becoming a template for incremental constitutional erosion in the future.

3. And thirdly, if an individual, or even a group of individuals, as in this case and in many others, if an individual's hardship becomes the governing metric. Then every denominational boundary becomes negotiable, and then Article 26 risks being reduced to just a case-by-case exception.

CJI: You are very precise.

Another submission started

Another Counsel: PIL is all about stepping into the shoes of the attorney general, who is the sole representative of the soul of the public.

Justice Nagarathna: For example,  suppose there is a temple. They want to have an annual festival, like they have the annual Kar festival, you can't block all the roads around the temple…one is public order, that nothing to do with the religious activity. You do your religious activity, but not by blocking all the roads. The state can always step in…Any activity, which is not religious in nature, that is the autonomy, which is given under Article 26(b)…they can decide. What is religious affairs.. The court cannot sit in judgment over it. That is the right, which is created under Article 26 (b). Suppose they say “we have a particular way of worship in this temple”… et cetera. That is the autonomy which is given in the manner of worship. Court cannot sit in judgment and say, no, this cannot be done. That is the idea of Article 26(b). While exercising that if you are going to.. public order already is there. Apart from that, if a secular activity is also being affected, then the state can step in. There is to be a balance.

Arvind Srevatsa: Article 25(1) and 26, in my humble submission, are different constitutional spheres, and they are different constitutional functions. One is the right of the individual, the other is the management by the institution itself.

Prachi: To the excluded class, my lord, persons who are not belonging to the denomination, they should not challenge the rules, as we know that our rights only limits to that others, others rights should not get infringed. So individual right is my specific right, which ends to the practice. What practice I follow, while at the moment I join the institution, it should be subject to the rules of denomination or the institution.

Advoacte Usha Nandini has concluded her submission.

Counsel: My name is advocate Usha Nandini.

Counsel: I am apearing for a case...This is the matter where entry of Muslim women's in the mosque is being regulated.

Counsel: I am advocate Krishna Raj.

Raj: Now the first point is not about the civil right of the deity.. Now it's an admitted fact that in the property wherein the temple is situated belongs to the deity because in all the revenue records admittedly, it is recorded as the property of Devaswom means property of the deity...property belongs to the deity.

Counsel: I am for Akhil Bharatiya Malayali Sangh.

Counsel: I am appearing for the All Kerala Brahmins Federation.

Counsel: My first submission is this, my lords, across religion in the path of devotion, every religion prescribes this adherence to austerities or ratha. As an effective tool for God, realisation or liberation, my lords, now every pratha has its own set of Yama and Niyama. That is the dos and don’ts. My lord, insofar as the Sabrimala pratha is concerned, every devotee who desires to have the darshan of the Lord must adhere to austerities for one mandala, which is 41 days, and thereafter he becomes eligible to carry the Irumudi, which is the holy offering to the lord, and then only ascend the holy 18 steps. My lord, it often happens that even men who have undertaken the penance…My humble submission is this that the Niyama of the Sabrimala Varatha mandates that any devotee who is desirous of the darshan of the lord must undergo this 41-day period of Vrata. So any person who is not able to fulfill this, regardless of a man, as he will, even in a situation when he loses his parents or wife, cannot be permitted to enter the shrine.

Counsel: The Hindu word which we have been told that it has come from the foreigners because the people who are living across the Sindhu, they are called Hindu. So kindly have my written submission

Since Lord Krishna in chapter 15 verse 15 has says that I live in the every living being's heart. So the Chinese traveller says that these people who are living beyond who are living in this country. They are governed by their heart and these words he has taken from heart. So he says Hindus and later on these foreigners.have taken this word and has redefined it that the people who are living beyond the Indus are Hindus. This definition has come much before the foreigners has given this definition of the Hindu.

The nine judge bench has assembled and started with submission of the counsels.

Counsel: In Aasam, Maa Kamakhya Devi temple, which is without a denomination. It is a rock that is a cleft rock, and the shape is of the vagina, the main vagina. Now, opposed to the Lord Ayyappan temple. This is the temple where menstruation is celebrated. There is a fair, there is.."mela".

During those three, those three days, which are usually 22nd to 25th June, the temple is closed. There are only women priests who are inside the temple. What happens at a large scale is tantrism…

Another counsel representing and supporting the review petitioners is submitting their plea.

Advocate Upadhyay: Dharma includes everyone; religion excludes others. Dharma unites society and religion divides society.

Upadhyay concluded his submission.

Advocate Ashwini Upadhyay starts his submission.

Joshi: Therefore, my submission is that a construction should be made so as to give it an expansive meaning to Article 26 ...it has to be given its expansive meaning in a way...whereby all the religious denominations, all the sections are covered in detail. What is the religious denomination?

What is the section that has already been explained..sovereignty of the place below. We are also saying that the Temple is a sovereign place in itself. The deity resides over there, and therefore it has its own unique feature, and therefore the importance to that place has to be given its due weightage.

Senior advocate Nachiket Joshi: I am on the historical part of the temple.

Divan: Right is the one that is fundamental, rather than to constrict it and box it into a tick. The boxes that are you and an organisation? Are you this? Are you that? The other aspect, my lords, please do consider, because what will happen otherwise is this: a recipe for competition to gain denominational status? It will lead to polarisation. It will lead to a sort of survival of the fittest, or who has the resources, who has the organisational skill, and the wherewithal will be able to get the recognition, and therefore their rights will be in…So, that’s why my lords, and it's why the polarisation violates the fraternity principle. So please…

Justice Nagarathana: If there…polarisation, the state will step in under Article 25 (2) (b), that is, reform. That is what Venkataranama Devru, they said, ultimately you see which is the what is the right here? As you are saying, there is polarisation, then the state can step in under Article 25 (2) (b) with regard to social reform

Divan: Reform is required if there is a social evil to be addressed. It can’t be just an improvement. That is my submission

Justice Nagarathana: But you said polarisation?

Divan: Polarisation is in the context of this competition

Justice Nagarathana: That is not the subject matter…we are saying that some denomination is superior, some other denomination is inferior. That is not at all the question.

Divan: Not at all. The question is, do I get the right under Article 26 or not? That is the question

Justice Nagarathana: Their autonomy to practice their religious practices is protected under Article 26 (b). The state or the court cannot say, no, this is not a religious practice. The autonomy is protected. That is what Article 26 (b) says..

Justice Nagarathna: The form of worship. It can be a religious practice. Nobody is denouncing it. Yes, you are right. Your conscience..nobody is denouncing it, right. There is nothing that you see that you can seek as such...that is largely protected under Article 25 (1).

Divan: The freedom of conscience is the most personal and private. Nonetheless, even this right will not be in a vacuum, because as a believer who wants to practice that freedom of conscience even in the privacy of my home, I may require, for instance, religious texts to read. I may require access to libraries. I will require… I may choose not to

Senior advocate Sridhar Potaraju: My proposition is this, my lord, religion broadly as it is understood, not from a Sanatani perspective, but from a dogmatic perspective, which the West always understood because we are in a common law system where the Constitution is to be interpreted with certain limitations of language. The religion, as I see has three aspects, models. The first one is the philosophical aspect, where I don't practice any rituals, and I don't do any discipline. I don't even take a bath, but I am in a contemplative mood that is permissible, and that has very minimal external interference or manifestation. And that’s exactly how our Vedas have been preserved through memory.

The second part is my lord, the practice of the rituals starts. From all the Karmas that are being performed right from the Grbhadharana onwards till the passing away, and the pithru...All the other objects are to be followed. There are all rituals. The third part is the political part. My lords, as you pointed out, the political part comes from an influence of the French Revolution, which had an impact on the interpretation of our constitution.

Senior advocate Pasha has concluded his submission.

Counsel:  The correct inquiry in Article 26 is not, is there a denominational right in this place of worship or not? The correct inquiry is who is the right holder for the purpose of this particular institution, of a place of worship? Because in every instance of every religious institution and every place of worship, there will be a right holder of Article 26. And that's why it says all sections thereof. A non-denominational mosque, which has no Article 26 right. It's just that it is, say, a section of the largest Sunni faith or a section of the largest Shia faith. So there will always be a denomination or a sub or a section of a denomination. The only inquiry will be who is the right holder. It could be that the local masjid committee, which is organised by the local neighbourhood, which uses that mosque. There will still be a right holder and there will still be a right because otherwise there will be no right of management in this masjid. It must be open at all hours. Anyone must be able to walk in and do whatever they please because there's no right of management, which is given by the Constitution. Therefore, the correct inquiry even is not, is this denominational or not, but the correct inquiry is to find the right holder. And in every single case.. there will be a right holder.

Justice Amanullah:  The basic focus should be—the right to manage. Everything, there is a modality to everything. There cannot be anarchy. Suppose there is a dargah or a temple, there will be elements associated with the entry, with the modality, how you worship, the sequence. Somebody has to do that. There's nobody… I walk in, I do whatever, and I come back. It's all the gates are left open 24 hours, so who is that body who manages? And then that will come into the protection because it has to be regulated. Per se entry cannot be banned. There cannot be discrimination on the broader constitutional parameters. But then for every institution, there has to be some norm, and who sets the norm? It cannot be that I decide my norm. You decide your norm. Every individual decides their norm. There has to be a body, and that body has been given the protection to decide.

Pasha: The reason why I say that consciously Article 26 was placed on a higher pedestal to Article 25 and Article 25 is made subject to 26 and not the other way around is because under Article 25 an individual has a right under freedom of conscience to choose not to believe in God.
An individual has a right under Article 25 to believe in God but not to practice organised religion.

An individual has a right in Article 25 to believe in an organised religion while declining to participate in certain practices of that organised religion, and only at the last stage, having chosen not to exercise these rights when an individual comes to an organised religion and institutionalised religion, the individual is giving up all these rights and choosing to subserve his own right or her own right under Article 25 to practice religion to the collectives.

And that is why the collective must have a higher right, because there are three levels of choice before you and you enter this space and it is not nobody is forcing you to practice organised religion. You when you choose to, you have automatically surrendered some rights.

Pasha: Lordship, the one example that comes to mind is that of self-flagellation by Shias during Muharram. Nobody can say that self-flagellation is not contrary to health. But it is for the state to decide on a policy prescription, whether this requires interference, on the grounds of health under Article 25 (2) (a), read with the health or being to the core practice who do it. Because the entire scheme in Shunni and Shia Islam was around the battle of Karbala on the 10th of Muharram, and so that is integral to Shia faith in that sense.

Counsel: Because if you take the view that some groups and schools amount to a denomination and some don't, that leads to the absurd consequence that some places of worship have no right of internal management and some do, which is not the purpose of Article 26.

Counsel: Lordship, an argument that Mr Giri made, I just want to emphasise that a place of worship cannot be separate from the faith or belief attached to it.

Counsel: Lordship, just by way of background, a Dargah, lordship knows, is a place where a saint is buried. While there are sharp divisions within Islam on what is the status of persons who have passed away and Saints who have passed away, insofar as the Sufi system of belief is concerned, there’s a lot of reference attached to the place of interment of a saint.

A nine-judge bench has resumed the Day 9 hearing of the Sabarimala reference.