Sabarimala Reference: Supreme Court reserves verdict after 16 days of hearing

The Chief Justice of India Surya Kant presided over the bench, including Justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi.

Court rises; verdict reserved after 16 days of hearing.

Another amicus argued before the bench.

Dhavan: It is totally…inconsistance with the adversary system…the difference is that this is a reference case. Now, what they were supposed to do is we understood it is, given our arguments, responded to them, given their arguments, responded to them in a way that would be understood by objects and ourselves.Mehta: Allow me to say something my lord…please allow me to say something on this.

May I say something? Kindly allow me to say, I strongly object to this kind of objection raised by Mr Dhavan. Amicus is appointed by your lordship, and he is not supposed to satisfy either Mr Dhavan or the other side. We do not lose our civility, but let me be that way, Mr Shivam Singh, not to be…he is a young man. You should not have been wearing your gown, Mr Dhawan. You should have removed your gown and argued. You are a party in person.

I would request, Mr Singh, he is a young counsel, a brilliant counsel. He need not to get crouch down be such observations. It’s really unfortunate. You cannot bully your younger colleagues.

CJI: The point is that he has given his own perspective about Articles 25 and 26, and read with other parts of the Constitution. You have a right to disagree. All of you have a right to agree and disagree, or partially agree and partially disagree with the amicus. That’s why we are granting exactly two weeks by 29th May. All of you are entitled to submit your revised, comprehensive, compiled submission.

Senior advocate Dhavan: Your lordships have appointed an amicus who had given a lecture which has nothing to do with what we argued or what they are now. Are we to treat him as the inner chamber of .., which will then advise your lordships, because what he had argued has got nothing to do with what we argue or what they argued. This creates a very serious issue.

SG Mehta: This is an unfair comment. 

Parameshwar concluded his arguments.

Parameshwar: Primary responsibility for social welfare and reform lies with the legislature. That is a constitutional mandate, but that does not mean your lordships are not empowered in certain circumstances…my respectful submission is conserve that power explicitly in your lordships judgement, because if nine judges say that we have…

Justice Sundresh: Article 25(1) itself say so subject to part three…how can we raise it…we can’t read something into it we can just…

Parameshwar: The judicial role is not an overzealous reformer.

CJI: You are absolutely right that Constitutional court can’t give up its responsibility, that we can't surrender that. It’s not a question of power. It’s a constitutional duty of a constitutional court.

Parameshwar: Primary responsibility for social welfare and reform lies with the legislature. That is a constitutional mandate. But that does not mean that your lordships are not empowered in certain circumstances. My respectful submission is please conserve that power explicitly.

Parameshwar: Because the Constitution doesn’t say you have a right to race, the Constitution doesn’t say you have a right to dissent, etc. It only says you have a right to religion. Religion is the only one among the prohibited grounds of discrimination which translates itself into a right. 

Parameshwar: My respectful submission, as a nine-judge bench, is that your lordships will keep the entire array of fundamental rights in your repository if circumstances so demand. Because if nine judges say that Article 21 doesn’t apply to Articles 25 and 26. It is virtually in the nature of prohibition. 

Justice Nagarathna: But in the case of Sabarimala, the rule itself prohibited entry by recognising custom and usage.

Parameshwar: So your lordships will balance. Then, perhaps formulate whether the denomination’s right is preserved by the rule, and if the rule is struck down, whether the denomination is put or not.

Justice Nagarathna: No need for a denomination there. It just says open all Hindu religious institutions of a public character. It may not be a denominational temple at all.

Parameshwar: My respectful submission is that we can’t be put at the mercy of legislation for claiming a right to enter a temple. All castes, including Dalits, Harijans, everyone has a right to enter the temple and that right of entry into a temple, according to me, must be protected under Article 25.

Parameshwar: The right under Article 25 (1) is applicable only if all three aspects are met. The believer, belief and the objects of belief.

Parameshwar: If there is a belief, that belief is manifested in the form of the rights of devotees or believers under Article 26. The belief, the object of belief, and the rights of believers under Article 26 must align together. If that is the view your lordships take, then Articles 25 and 26 become balanced.

Justice Nagarathna: But in the case of Sabarimala, the situation is to the contrary. A believer cannot enter between 10 to 50 years.  

Parameshwar: That’s why I said I’m not addressing on the other issue.

Justice Nagarathna: Just keep that in mind. Giving access to everybody is one aspect. There it is the denial of the access which is in question. Insofar as a believer is concerned, there’s no problem. But who is questioning becomes a question. 

Parameshwar: If your lordships bring the deity within Articles 25 and 26 and confer the deity rights, my lords, it leads to a very problematic situation where somebody could similarly argue that if the deity is capable of having rights under Articles 25 and 26. The deity must also have duties under Article 51 A. In my respectful submission, my lord, we have had a number of gods come to this court; the gods must, the deities must be kept separate.

Parameshwar: The right to temple entry is available under Article 25 (1) for every believer, irrespective of which denomination you might otherwise subscribe to or not. I hope I make myself clear on Article 25 (1). It is not based on denomination. It is based on caste. It is not based on descent, if there is one, if there is one qualification for temple entry under Article 25 (1), it is the status of a believer.

Justice Nagarathna: I think that the meaning of fundamental duties is not to give importance to superstition. That’s what Justice..also tried to say — differentiate between a religious practice and superstition.

Parameshwar: Dr Ambedkar said, "Look at the activity. See whether it is essentially religious. If it is essentially religious, leave it. It is out of state regulation." From the essentiality of activity, the court made it essentiality of religion. That distance that this court covered over the last seventy-five years is a problematic part.

Justice Nagarathna: It (Essential Religious Practices (ERP)) can be used only as a tool to say, look, this practice is so essential or essential religious practice. It is not secular, first of all. But you can’t say it is not an essential religious practice and therefore I won’t protect it.

Parameshwar: An individual’s spiritual pursuit is as much a part of Article 21 as it is of Article 25. There lies the interconnection between Articles 25 and 21. You remove my religious practice, you remove my religious pursuit, my spiritual pursuit. To that extent, you are also denting my identity under Article 21. 

Parameshwar: Can I just come back to the first part of my submission, because I believe somewhere down the line we have constricted the definition of religion. The definition of the word religion would inform the words religious practice, affairs in matters of religion and religious denomination. 

Parameshwar: No practices are core or penumbra. My lord, the biggest problem in Article 25 and 26 jurisprudence of the Supreme Court has been that it seeks to categorise certain practices as core, certain practices as essential, and certain practices as non-essential. One, it constricts the right to belief and the right to seek. It does not give the individual or the collective the freedom to explore, because I would think my lord, that right to believe the right to seek also encompasses within it the right to stumble, the right to doubt, the right to reaffirm. There is something similar to what Mr Subramanian said in the morning. The perspective of the right to believe under Article 25 must not just be a right to believe, but…

Justice Sundresh (Interjects): How do you draw the line? See, it is the denomination. Let us say it is an individual…what can claim under Article 25 (1). One denomination can claim by the group of common beliefs, and an individual can claim. Now, ultimately, you see, it’s a conflict between the individual's right…at this stage, can it be a factor to be decided by the Constitutional court?

Justice Nagarathna: So long as it has a nexus to religion, that is a safeguard. Part three does not mean, as Dr Dhavan said, something to do with political rights. So long as it has some nexus to what is guaranteed under Article 25 (1), it can be considered.

Parameshwar: But my respectful submission is, please do not exclude the application of other fundamental rights to matters concerning Articles 25 and 26, because we do not know what judicial circumstances will come before your lordships. Legal circumstances will come before your lordships, where your lordships may have to employ one of these rights.

Parameshwar: The way the Constitution treats religions and spiritual resources is different from the way the Constitution treats material resources. But in my respectful submission, if your lordships, in a nine-judge combination, were to say that Articles 14, 19 and 21 do not have any application at all to matters under Articles 25 and 26, it freezes the law. The high courts are completely bound by this, and judges of this court are also bound by a nine-judge judgment.

Parameshwar: In my respectful submission, there is no concept of hierarchy of rights in part three. That’s why the integrity of part three is important. Certain rights in the category of part three are important.

Senior advocate K Parameshwar is arguing before the bench. 

The nine-judge bench resumed the hearing. 

CJI: Both sides of the argument are over now.

The court rises for lunch. Hearing to continue post lunch. 

Other Counsel: This is the community of Tiupan Alavar Amal, which is a religious denomination, and the right is a pre-constitutional right unless the submission was made that this is not a pre-constitutional right, and therefore, this right, which comes from the entry protection act, from there, the community has got the right. That right comes with a duty, and therefore the duty is to ensure and protect, my lords, the sovereignty and the nature of the god which is there or the deity which is sitting over there; that right has to be protected.

Dwivedi: I say this with respect that no provision in the Constitution is standalone. Ultimately, all provisions taken together make the constitutional system.

Dwivedi: And the second is something which I agree about completely, that Articles 25 and 26 are group rights, in fact, massive group rights also. But Article 25(1) is a fundamental right where the individual right an dgroup right coalesce. They stand intertwined. 

Dwivedi: Mr Dhavan cited a quotation from the esteemed learned counsel, late Mr Fali Nariman, where he says Hinduism is a way of life. I would disagree with this one. All religions have a way of life, but they are much more than that. Hinduism is a religious philosophy also.

Senior advocate Rakesh Dwivedi starts his submission. 

Dhavan concluded his arguments. 

Dhavan: Article 25 (1), I have given what it is, what the prescribed limitation is. I just took two examples, and it will help. What must the court do? Judicial review in each case will be different, not case by case, but class by class it will be different. The court must examine whether the claims are based on a bona fide belief; if not, the case goes to the next step, interpret the prescribed limitation.

Dhavan: Article 26 is the most important right. Without property, without organisation, no religion will survive beyond a few months. Because they survive on institutions. They survive on the Pope, they survive on the mutts, they survive on the temples. Take them away and interfere with Article 26, and the very longevity and the future of a religion would completely disappear.

Justice Nagarathna: That denomination or the organisation, it holds the people together to a particular philosophy or religion. Therefore, it is required for the perpetuation of religion in this country.

Dhavan: Because if you want a religion to proceed, somebody has to do it in an organised way with property rights, with autonomy, managing all its affairs.

Dhavan: As Mr Subramanium put it, conscience is something that you cannot go into. As soon as you go into the area of professing, practising, and propagating, that is an area of judicial examination. Now, a lot having said this to be their basic argument, if your lordship accepts that there is a centrality to it, then, my lord, there is something in what I say; if not, my lord, I give a walk over to them and take their position.

Justice Nagarathna:  Even though you are giving on the theory of constitutional interpretation, when it comes to these articles, because there were not really considered as such by a nine-judge bench. It was individual cases; there was no collective consideration by this court. Therefore, the Articles 14, 19 and 21 triangles cannot be applied straight away to your argument.

Dhavan: Article 25 is about community. It is not about a collectivity of people who are simply gathered there and suddenly elected a leader. It has some purpose to it and has to be, as my learned friend Mr Subramanium said, defined widely.

Dhavan: My main argument is my summary of the argument on the other side. This was important, my lord, for us to remember that this is one of the unsolved areas in the fundamental rights chapter. Constitution benches have taken care of other parts, but this is the unsolved area.

Dhavan: Article 25 (2) social reform has a very wide implication, and anybody who has been anywhere in India will recognise the importance and probably the autonomy of Article 25 (2) (a) and (b).

Dhavan: Article 26 is a group right. Article 29 is a group right. Call it horizontal...call it whatever you want. Article 30 is a group right. I am trying to go back into what was in the minds of the Constitution makers. Let us look at the grouping of the Articles in Article 25..

Dhavan: We have also agreed that the reform process is the most important process in the minds of the constituent assembly members, and this goes to the interpretation of Article 25 (2) (b). Probably it’s autonomy, but this goes to that and there we are also agreed.

Dhavan: Your lordships are concerned here with the justice text. I’m not saying that Parliament is not concerned with justice texts. Of course they are. When your lordships exercise the justice text, there is a huge apparatus of concepts that you can use when you are balancing, when you’re using proportionality. 

Dhavan: We have a huge Constitution. I have divided it into ten texts. I won’t bother your lordships with all of them. That’s the only way to read it in my view. But I’m going to concentrate on two texts of the Constitution- the justice text and political text. 

Senior advocate Rajeev Dhavan starts arguing before the bench. 

Subramanium concluded his arguments. 

Subramanium: My respectful submission is that there is a distinction; the distinction is this freedom under 25 is a subjective freedom. It is ensured by the state. It is also not laterally available, but my lord, laterally you assure the other citizens of their fundamental right…laterally you assure other citizens to not to respect their rights. So how do you not practice equality, tolerance, and coexistence of all religions unless you have these subjects to other rights in part three, because the other people may not be exercising Article 25 (1) right at the time, or they may be exercising Article 25 (1) right. But you need to be conscious of their freedoms, that they have fundamental freedoms. They must be respected.

Subramanium: But what I am concerned is when you are wanting to interpret Articles of the Constitution, you don’t interpret the Articles with reference to tools of judicial review, which are in the context of assessing the effect of executive action or legislative action. You take the Articles themselves, and you take the articles as plenary...

Subramanium: Suppose, my lords, we did not have Articles 25 and 26, there could have been a question whether Article 19(1)(a) itself comprehended it. Because freedom of expression can also mean freedom of expression through your conscience, it can also mean freedom of association.

Subramanium: Your lordships see Articles 28 and 27. They balance both the freedom of the individual and also give effect to the purposes of the endowment. If it is religious instruction, it is completely even and balanced. But not one set of rights to which Article 25 is subject are the rights in Articles 26, 27 and 28. This is one part.

Justice Nagarathna: They are manifestations of the right and they have to be given their full meaning.