Sabarimala reference: There won’t be religion in country if you mix articles of Constitution, says Justice B V Nagarathna

Counsel: My proposition on this issue is that if different religious texts are not looked into the way the religion says, any test that your lordships will give, that test will fail for some and it will be successful for another.

Counsel: I am saying from the record that this temple is not like a church. Church is also a holy place. That is Aradhanalaya. But temples are deities' houses, and deities are juristic persons. You can’t enter my house without my permission.

Pashu concludes: And lastly, I just want to conclude by saying that I have observed that the internal diversity that has come together on this side is actually phenomenal. Some of us are together on the same side for the first time in this matter because this is one time when the entire mosaic of our very diverse... This is all communities coming together to defend the right to be...

Pasha: My first argument is that there’s no corresponding right on the collective to recognise these very highly individualistic and eccentric self-identifications.

Senior advocate Nizam Pasha starts his submission.

Sankaranarayanan concluded his arguments.

Sankaranarayanan: One point that Mr Mohan Gopal had made on autotheism. I don’t want your lordship to be misled that there is a meaning given to autotheism. He was suggesting that that is what we follow. Actually, here it is not. Autotheism is a specific word which means that I treat myself as God, and therefore, I follow myself and my beliefs. That is not what we follow in Hinduism remotely.

Kaul: May I only say, and I’ll end with that, the judgment was of 1962 and in 1977, a self-appointed commission is appointed, not by the government, which gave a report in 1978. Nine years later, a repetition is filed, which is the current petition. After the repetition is filed, six years later, another self-appointed commission gives a report...

Kaul: Today, what is being done are instances given to your lordships from a few thousand people reporting. We have brought many more affidavits disputing each factual ground.

CJI: You are absolutely right, you can’t include the people. Maybe many of them, most of them are unknown to you. But there is a duty cast on the court to issue a public notice to invite the persons, those who feel themselves to be stakeholders, why the court should serve from its responsibility?

Singhvi concluded his arguments.

Justice Nagarathna: What is the meaning of entry, and if you are asked to stand in a corner?

Singhvi: No, I’m saying. Entry everywhere.. I am saying the opposite. I am saying that your lordships once entered...

Justice Nagarathna: But once you enter, everywhere, equal access,

Singhvi: Absolutely. That’s my submission. Yes, except that once you enter and you’re going everywhere, you have to follow the denomination’s broad contours. There are places where you wear a dhoti, where you have to do this. That’s what I’m saying.

Justice Nagarathna: What the Chief Justice is trying to say is that sometimes it is saturation, sometimes that from April 7 onwards, even in the middle of our sleep, we are saying public order, morality, and subject to the other provisions, because we are thinking with you. We are getting these words, you know.

Singhvi is referring to other landmark cases like Golaknath before the bench to support his plea.

Singhvi: Proportionality is important. My answer is that proportionality is not the first of the test; it is the second ground. When one looks at a reasonable restriction in a case involving a reasonable restriction, their my lordships will apply proportionality to see whether the restriction is proportional or not, but not in the first case.

Sinhvi: Proportionality is important, my lords. My answer is that proportionality is not the first test; it is a second ground. When my lordships look at the reasonable restriction in a case involving a reasonable restriction, there will apply proportionality to see whether the restriction is proportional or not, but not as a first test.

Senior advocate Abhishek Manu Singhvi starts his submission.

Vaidyanathan: Another important thing, the Solicitor made a reference to Article 29. I have dealt with it in a separate note in my first submission. Article 29 did not refer to sex or gender because in India, it’s well known that not all educational institutions are co-educational. Some institutions are only for boys, some institutions are only for girls. Nobody can say that even if the institution is only for girls, a boy should get admitted to that. That is why Article 29 is carefully drafted. It does not include gender, sex. Nobody can say that I am being excluded on the grounds of sex. I must be given admission. Let kindly keep that in mind, because we can’t confront these concepts.

Justice Nagarathna: The facts were that they did not refuse anybody else entering into the temple. Therefore, they said, Article 25(2)(b) will be applicable... to people of all sections and classes.

Vaidyanathan: Article 25(2)(b) will apply on its own force because it was a public institution, a public temple. Therefore, it was not necessary to take into account Article 26(b) right.

Vaidyanathan: This is my respectful submission for my lord's consideration that Articles 25 and 26 occupy distinct and independent constitutional spheres. Article 25 is an individual right. It protects each person’s freedom of conscience and right to profess, practice, and propagate religion. Article 26 is a communitarian right. It protects the religious denominations' right to establish institutions, manage their own affairs in matters of religion, own property, and administer it.

Vaidyanathan: The first aspect, in my respectful submission, is that some of the persons who have argued have proceeded on the basis that Articles 25 and 26 have, for the first time…certain rights either for individuals or for denominations. My first submission to this is that these are part of our natural rights, pre-existing rights, pre-constitutional rights, and the constitution nearly recognised these rights, and that is, my lords, a well-settled proposition.

Mehta concluded his submission.

Solicitor General of India Tushar Mehta is continuing his submission.

The bench will continue the hearing post lunch.

Justice Amanullah: ..the court will have to go whether it is reformist in nature or purely cannot sustain the test of the Constitution. Just because it can be labeled to be that the court is being reformist, we should not hold our hands back…Who decides..

Mehta: Not challenging that.. that lordships are holding the hand.. It’s not that way. It's a legal submission, not an arrogant submission

Justice Amanullah: What you perceive as reformist, the court might take as, as a fundamental right of the person coming there.

Mehta: That’s the problem. That it is something very subjective and therefore court should not. Because what I perceive something, your Lordships may perceive-- may not perceive. What your Lordships may perceive, some other bench may not sub-perceive. Therefore, it is better that the legislature decides through the people's representatives.

Justice Nagarathna: Article 16 (5) will apply as against Article 25 (1) and 26 because it says only a person belonging to that religion can be appointed as an incumbent of an office of a particular religion. Article 15 (5), which is an exception to Article 16 (1), 16 (2), also has tha word religion. They are all on different planes. So, Article 25 (1), which is conscience. If you start mixing up all like this, then there will be no religion in this country.

Mehta: As I understand, my lord, without the proposition would be that the fundamental rights which affect religion or religious practice in part three would apply Article 26, that the only way we can reconcile.

Mehta: So my respectful submission is that Article 25, the right to profess, practice, etc., which is not available to the denominations. The denomination should have a particular name or a particular registration, or is it a person or not? Person, juristic person or not? I would like to elaborate on that.

SG Mehta: The real question, whether here or anywhere else before any other forum, would be whether the practice in question is against public order, health, morality, violates any of the fundamental rights, and if all the questions are in the negative, then Article 25 will apply.

SG Tushar Mehta starts his submission.

Advocate Jaising argues before the bench.

Jaising: Let’s first take the question of proportionality. I think my learned friend addressed it very well. However, a lot I wish to point out that the doctrine of proportionality has never ever been invoked when there is a clash of two fundamental rights for the last seventy-five years. It is invoked mainly as a doctrine of administrative law following the Wednesbury principle, where the issues, whether state action is arbitrary or unreasonable. Therefore, if the cpourt wishes to invoke it is a different matter.

Advocate 4: There are only two points, my lord; one is the fact that this is not merely a conflict between a group and an individual. I would just like to say that as a denomination, as a group, so other people who are excluded are a group. Those who are excluded are an individual; they form the group. You exclude one woman between 10 and 50, you exclude all women between 10 and 50, and so there are their group. So, the question that arises here is when there is one group who is seeking a right under 26 and another group who can seek a right between under 15 and 21, what is the right way to go about it?

The only aspect I place here is that it is imperative to know that individuals who are subjected to exclusion or socially conditioned to internalise such exclusion are those who are directly affected, belong to a close-knit community. If they come to court or their name comes to court, they are the ones who face the highest amount of ostracism and excommunication. And only in those scenarios, a third person may, in fact, aid them in advancing their issue. And to that extent, public interest litigation should, in fact, my Lords, be allowed.

Advocate 3: The doctrine of proportionality arises from the context of a contest between the individual and the state. Proportionality asks the question, is this measure, is this practice a proportionate infringement on my right as a citizen? I was never evolved, and it was never meant to ask questions. Is the striking down of this practice a proportionate infringement of that other individual's right, or that of another individual, other right, for that matter? That question can be answered only using double proportionality, and I cannot emphasise enough.

Sneha: The Constitution draws a distinction between the inner freedom of conscience and the external manifestation of religion. Belief is absolute. However, the practices, customs, and usages, when brought into the public sphere, remain subject to the constitutional limitation.

Advocate 2: My Lords, my second submission is that there is a part of conscience that is absolutely private, that must remain unfettered, inviolable.

Advocate 2: I have two broad points that I wish to canvas. One is unconscious, the other is unconscious.

Advocate Giri: My humble submission is that this is the problem occurring nowadays…I am the current topic, neither on the past nor the future, but an ancient one. Today, my lord, the problem in the country is that the state is trying to take over all private temples under the grab of because the collector is changing the entries because he is the custodian of the revenue records

Another Counsel: Indian Constitution consists of 22 parts out of its fundamental rights..that is in part three, though I can easily import Article 21, the most superior right, a right above the fundamental rights, they wouldn’t from Article 359 that is the emergency provisions. Even the life of the state is in danger Article 21 is there.

Whatever issues are raised, it is so connected with the dignity. So Article 21 will be there...

Padmanabhan: Our religious books, which are in the nature of.., tell us the divine morality. One hundred fourteen chapters of the Holy Quran, followed by Hadith…18 chapters of the Geeta…tell us how we have to live. That is the divine character of this nation.

Advocate Prashant Padmanabhan starts his submission before the bench.

Khanna: Applying the principle of Articles 25 and 26, these provisions are not merely neighbours in the constitutional text. They represent, respectively, the individual and collective dimensions of a single overarching value of the freedom of religion, belief, and practice. The structural analysis of Article 25, therefore, reveals that it operated at the level of the individual.

Senior advocate Rakesh Khanna starts arguments before the bench.

Dr Gopal: Faith in god versus faith in the clergy is a real issue on which this court is being tested in these hearings. Please do not let faith in the clergy defeat faith in God originating in the individual conscience.

Dr Gopal: Who speaks for the religion? How is a religious denomination constituted? You said, when you become a member of a religion, very correctly, Madam, that you are subsumed into that religion. You are right. But many of us have not voluntarily joined a religion. How did we become Hindus? First, we were classified in the census as Hindus. As a residual category, and then without asking us.

Justice Nagarathna: As far as Hinduism is concerned, it’s also called a way of life. It is not necessary for a Hindu to go mandatorily to a temple to perform a ritual. He or she still remains a Hindu because it is a way of life.

Dr Gopal: If that comes across in the reference judgment, that will be a huge relief.

CJI: It’s already there. You don’t require a judgment on it.

Justice Nagarathna: So many people do not go to temples, do not have a place, or a site or a room or whatever you may say in the house, where they offer a veneration or puja, but even then their psyche is such that they are Hindus. It's a way of life.

CJI: People will light a lamp inside their hut. And that's all their religion for them. They don't require to go to any..

Justice Nagarathna: Nobody can come in the way of people having their faith.

Advocate Mohan Gopal continues to argue before the bench.

Gopal: I’m going to show you that the architecture of the right to religion, of the Constitution, has been interpreted in the last 75 years to silence these voices and this reference in the first time in the history of this country that nine great judges are reflecting on religion conceptually, not deciding a case, and so this is a great opportunity for post correction recognise the need for some adjustments to the legal structure of the interpretation not the Constitution, to provide space for this.

Bench assembles.

The nine-judge bench will soon start the hearing.