Justice BV Nagarathna in Sabarimala case: Hindu society must unite, denomination will suffer if temple not opened for others

Kaul: I appear for the head of the Dawoodi Bohra community, Sayyedna. He is before your lordships in the context of the original Constitution bench judgment of 1962, where the Maharashtra legislation on excommunication was struck down.

Subsequently, in 1986, a writ petition was filed challenging that Constitution bench judgment. That writ petition was first placed before a seven-judge bench, to which we objected, and thereafter a five-judge bench was constituted. That bench, by way of a reference order, has placed the matter before your lordships.

Senior advocate Neeraj Kishan Kaul has submitted his written submission before the bench.

Senior advocate Mukul Rohatgi: The first issue framed is the scope and ambit of the right to freedom of religion under Article 25.

The scope and content will not is that Article 25 (1) is subject to a plethora of restrictions. One, it is subject to public health, morality, and public order. Two, it is subject to other parts of part 3; it is also not subject to Article 25 (2) that a law can be made which can abridge without Article 25 (1), so it gives the right of conscience propagation.

Senior advocate Dwivedi has concluded his submission.

Senior advocate Dwivedi: I do not have much to say about essential services except to re-emphasise that it cannot be used even as a tool, which Subramaniam is saying. I differ with him. This is not available—it cannot be. How can.. religion be decided according to the tenets of a denomination?

For all I know, when a child is 3 years old and his grandmother rings a bell in the domestic temple, he runs for the prasad. That is how he knows this is a temple and this is God.

Other things are non-essential from the point of view of worship. But the freedom of religion will certainly include that the believers decide for themselves how they want to worship, when they want to worship, and what time is appropriate. Everything

Dwivedi: Supposing there is a scenario where one denomination is being prevented from worshipping in another, although normally they themselves don’t go. But even if they are going, then…will be sustained under reform. If the state wants other denominations, people should also be allowed, as it can make a law of reform.

Nagarathna: If you are allowing, there will be no need be have a law permitting allowing all that because this came in 1950. What was the position in 1950? The social evil of exclusion was there. Therefore, it was added as an opening, throwing open Hindu religious institutions of a public character to all classes and sections of Hindus, to ameliorate.

Dwivedi: That is correct.

CJI: Mr Dwivedi, your argument is that Article 25 (2) (b) is essentially meant for opening the Hindu religious institutions for all sects or sections, so replanting Article 17 here for the purpose of opening the Hindu institutions, but that provision of Article 25 (2) (b), probably you want to say, will not have an impact or cannot be used as a tool to anchor with the right of the denomination to maintain the affairs of the denomination under Article 26 (b).

Nagarathna: The evil was there, what was the evil practice or malpractice or what you say social evil that they were not permitted to entry, therefore the Madras Act was came. And when the Madras Act when applicabale, they say you have to open up the temple for all persons.

Dwivedi: Absolutely, I am totally in favour of it. I am not against it. All I am saying is that the law is perfectly valid and supportable by Article 17, read with morality, Article 26 itself.

Dwivedi: There is a double emphasis-the right to freedom. Right itself is a freedom, (and then) there is right to freedom of religion. So, it is a double emphasis on this right to freedom of religion.

Dwivedi: The question more pertinent is, can you read morality as constitutional morality? That is the issue.

Dwivedi: Every time law is made test will have to do you pass this fundamental right test or not. So, therefore, my lord, this question of balancing this Article 26 with 25 (2) (b) is with great respect, my lord, wholly incorrect.

Justice Nagarathna: The issue arises the state has to justify on the basis of Article 25 (2) (b). The burden is on the state…Under Article 19 (2), the burden is on the state to justify.

Senior advocate Rakesh: Negative experience was very much alive when this Constitution was being framed. On the other hand, my lord, our civilisation, if it is surviving today, we owe a lot to the Hindu religion, the religious demnio,moniations, the bhakiti movements...

This is because of them that this civilisation is alive. Otherwise, there were enormous attacks on the civilisation.

The framers have placed the religious denomination separately and conferred or recognised their right.

Religion existed before the Constitution; it is not a gift of the Constitution.

Senior advocate Rakesh Dwivedi is presenting his submission before the bench.

The Supreme Court will continue the hearing of the Sabarimala case soon.

The nine-judge bench was last hearing the submission of CA Sundaram before the break.

CA Sundaram’s concluding arguments

 In short, what I would like to say to your lordships is this. Number one classes does not include gender. I’ve given various reasons in my eight memo, but I'm just summarising. Class under Article 25(2)(a) deals only with secular activities not with theological, not with religious.

Article 25(2)(b), when referring to classes, does not refer to gender. And therefore, the power to throw open for a gender is not traceable to 2(b). If at all it is claimed. It can only be claimed on the right of Article 14 because part three. But if you take Article 14, you must see whether there's an intelligible differentia, a rational reason for it.

Now, if you take that reason as the reason being, it is felt by this people who are worshiping this particular deity, in this particular avatar, in this particular form, that being a nastika brahmacharya, this form of worship is called for. And if that is not found totally arbitrary, Illogical, perverse or reprehensible, your lordships would not interfere on a matter of somebody claiming a right because of Article 14. Article 14 has no role.

Finally, the submission which I have to make is that Article 26(b) (to manage its own affairs in matters of religion) is nothing but an elaboration of a right. I am already granted under Article 25(1).

CA Sundaram: If it's a religious practice and with freedom of conscience, which does not trample on somebody else's toes, I can follow my religious practice.

The moment we say essential religious principles, it becomes a question of fact.

That question of fact, then, is left to the courts to decide an ecclesiastical matter, which we say will not do; it becomes a jury question..

So this concept of essentiality is not relevant. What is relevant is teh concept of whether it is a form of religious worship, that is all, and whether that form is found either in the customs, or through long usage or shastras or is the manner in which a group of people want to worship a deity, and we cannot go beyond that.

CA Sundaram: I would like to answer your ladyship's one question earlier on what is conscience?

My understanding of conscience, pure and simple, is its a moral compass within which each one lives, if we understand that to be conscience, we look as it as our own right and wrong.

CA Sundaram: I am appearing for the review petitioner.

Justice Nagarathna: We want to know that all human beings are bound by conscience, irrespective of the nature or quality of the conscience.

Gopal: In fact, in my additional submissions, your lordship will find this is the preamble of the 48th declaration.

Justice Nagarathna: That's what makes a homo sapien different from animals, which we don't realise.

Subramanium: I am sitting on the side of the review petitioners because, according to me, the exposition of the law by the majority on this is not correct.

Subramanium:  There can be even discriminations within the realm of personal law. The removal of that discrimination can still be a social welfare reform, which directly falls within the province of Article 25 (2) (b). So for the purpose of removal of discrimination, you don't necessarily have to go back and harken to Article 14, although it is a solitary.

But you can remove it as a part of social welfare.

Justice Nagarathna: For example, for religious denomination believes that a lady who becomes a widow has to commit Sati and therefore Sati must be abolished in the context of Article 25 (2) (b). It cannot be considered to be an invasion of a religious practice.

Subramanium: Certainly not.

Justice Nagarathna: We are giving these extreme examples. So, social reform will prevail there.

Subramanium: Yes, certainly. And it's not only the making of a law as your lordship said, it is also the conscience with which that law is implemented over a period of time. Even though we have had laws which were social reform laws, as a matter of accurate, one had to do proper sociological studies, it has taken a lot of time for many of them to have been translated as complete reality.

So there is a gap even between effectuation of a law and the time by which society adequately responds to the law and imbibes the law as a value.

Gopal Subramanium:  One is the interdenominational, shall we say, contest about the nature of a practice. There are cases you have the most celebrated case, the Vadakalai-Thenkalai case that has been going on for centuries and I still don't know whether it's over, but I'm giving you an example that there can be projects that those have to be done.

In such cases, you will need evidence. You will need proof, and you will need to track. But your lordships asked me a more fundamental question — is the court devoid of adjudicatory power? The answer is that the court is not devoid of adjudicatory power.

There is no other place where any legal rights or legal injury can be established except in a court. I know those are not exactly the ideal kinds of situations.

Justice Aravind Kumar: So the courts will sit in the armchair of ascertaining the theology of the practice.

Subramanium: There will be evidence and it can…

Justice Kumar: So, we can take it that Articles 226 and 32 will be barred.

Subramanium: In an interdenominational fight, which requires evidence. Then Articles 226 and 32 may be precluded. But if, suppose, there is no dispute at all, we can have cases where there is absolutely no dispute on the fundamentals. Then, in that case, a question may plainly arise for determination whether this is void or not void.

Gopal Subramanium:  What is significant in the debates is, it is clear that the framers were aware of the administration of endowments. They refer it. It is also clear that they wanted Article 25 to be an article of a universe. Giving absolute maximum freedom, subject to public order, morality and the rights of others. No individual right can be exercised in violation of the rights of others because all have identical freedoms.

But at the same  time in order to see that the right of practice and propagation, how do you propagate for that you need a denomination. And that denomination must have the ability to acquire old property, and it must also be able to establish and maintain an institution.

Subramanium: The freedom to navigate matters of religion is a matter of personal freedom under Article 25 (1), but when you adopt a creed, you adopt a philosophy, and if you are an adherent to a particular philosophy, then, my lord, you come under Article 26 (b). Then, you cannot actually attempt to change the doctrine of that philosophy while entering as a member of a denomination.

That is not expected because you are an adherent of the denomination

Subramanium: I am going to request my lordship to look at the conscience separately from the right of religion. Conscience, my lord, can be a slightly more detached faculty from the faculty of religion to absorb religious philosophy and truth.

A nine-judge bench has resumed the Day 7 hearing of the Sabarimala reference with the submission of senior advocate Subramanium. 

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 today continue the hearing with the submission of senior advocate Subramanium.