As 9-judge bench do we upset civilisation? Justice Nagarathna asks in Sabarimala case

Another counsel: The central dilemma in this matter is the way forward, what would be the way forward, as if the practice is held to be like a 10-year-old girl going there, and they say it’s held to be unconstitutional. Then what is the way forward?

CJI: We respect the sentiments everything. We really appreciate what you have given the story. We will consider that as well the last.

Deshmukh: Now to give an example, my lords, in Hinduism, Sathpathi is a religious practice. But whether I want to get my marriage ordained by a Hindu priest or by following the Kanyadan Pratha, is my right to practice religion in the same in my lords even during the Ganpati Visarjan the Visarjan itself after Ganesha Chaturthi to be carried out on Anantha Chaturthishi is a religious practice but it is my individual's right whether I want to actually do the Visarjan on the third day or the seventh day or the tenth day.

Shraddha Deshmukh starts her submission.

CJI: Translation is always a translation. You translate a poem, you translate to novel...history book, you translate an essay. The translation will never be the same thing as the sentiments, the feeling or the expression of the original. Therefore, the controversy may not arise. Therefore, there will be constitutional declaration that once you are authenticated, the Hindi version is there, then it shall be treated as the translation of the original one.

Farasat: Can I say that prevailing notions of the time may impact a certain section in a way which is not desirable by the Constitution? In those cases, then your lordships will use constitutional morality as the test.

Justice Nagarathna: If a couple wants to marry within a particular social group, or what…that can be decried. The diversity of India is one of the reasons why the people want to align. After all, see...it is a partnership for life. They want to align with a similar family background.

Justyice Sundresh: These things are a common culture, a common belief. For example, somebody is going abroad, he might he might marry an Indian. There are multiple reasons for this. There are so many factors.

Farasat: My lords will agree with me that in a large number of cases at a given time, the prejudices which prevail in society change.

CJI: This may be true, but then there has to be some very authenticated data…we can’t rely on certain things…we can’t be only…because some people sitting in air-conditioned rooms writing some articles with a particular agenda, and they throw certain things in the name of the agenda.

Farasat: In a case like this is somewhat easy to present a false binary to the court. Is it a Constitutional morality or is it popular morality? It’s not a question of either or.

Senior advocate Shadan Farasat starts his arguments.

Guruswamy: This is the actual challenge which even legislators face. It is that if you were to leave a faith or a religion dynamic, and if it were just practised, then through customary practice, you may see progressive reforms happening. So, for instance, but when you codify something, you capture a static piece from 1963 you codify and we continue interpreting it 60 years later, and that is a problem with codification of any issues of faith, of religion, of personal laws. They are not intended to be codified. Where do we get codification from? We get codification because we adopted as a colonial society a certain system of law. But if you were to let tradition to be, if you were to let faith and religion to be, then you would actually see progressive, emancipative practices emerging because people go ahead. Women start occupying public spaces, people start coming to express faith. There are divergences in faith that are then expressed. The problem with codification is this this is perhaps the situation in 1963. We are now assessing it in 2026. So what is the interpretive rules that your Lordships must use. It has to be constitutional values. It has to be constitutional values. What else can it be? What else can it be? Because tradition is not stagnant. Codified law is stagnant. When you are confronted with codified law, you have to look at that else, which is codified provisions of the Constitution. And you have to look at constitutional values so your lordships in that context can only look into this.

One important point that Justice Sundresh had made two days ago, which is that he pointed to Article 51 of the fundamental duties. The fundamental duties include renouncing practices derogatory to the dignity of women. So there is another marker for your logistics, which is that there is a fundamental duty that expects the state and my lords to be governed by this, my lords.

Guruswamy: There is a reason why management as a right ascribed as opposed to control. Even the right of minorities to manage their institutions under Article 30 are circumscribed as held by a six-judge bench of the Supreme Court in State of Kerala v. Reverend Mother Provincial, 1970. Administration means management of the affairs of the institution. That is the import of this word.

Justice Nagarathna: Protection?

Dr Guruswamy: Yes.

Justice Nagarathna: Because they are minorities, they have certain unique characteristics…to protect the minorities in respect of their affairs. Article 30 is there- …What was India in the 1950s or late '40s? What was inherited? What were the drawbacks in the society? That is on one aspect on which the assembly has debated and given its various provisions under the article. But the framers were most conscious of what should be protected, that the civilization must continue, and therefore, they have come to certain… articles are framed in a particular way. Today, are we as a nine-judge bench going to upset the civilization is the question.

Guruswamy: It's not about using it against individuals. It is about the zone of regulatory power that is envisaged under the text of the Constitution, only in that context. So if it said control, that is the higher zone that is envisaged, you can be a new denomination, you can actually recognise....I think it does make difference.

Justice Sundresh: You can say that, along with the power, there is available for the state to regulate it that does not make any difference.

Guruswamy: Let us please focus, my Lords my Lady, to manage its own affairs in matters of religion. Now, my Lords, the word manage is not a matter of chance. It is a matter of explicit intention because the word used is manage, not control. If the word in Article 26 (b) had said to control its own affairs in matters of religion, then we would be in a zone of power, and the exercise of power, which is beyond this court. But the framers use the word to manage its own affairs in matters of religion or why is this important?

Guruswamy: Now, my Lords, I'll take you to the second proposition. The use of the word manage in Article 26, I believe, reflects the constitutional intent to harmonise denominational rights with individual freedoms under Article 25.

When the drafters first framed Article 26, it did not include limitations relating to public order, morality, or health. Subsequently, Dr. B.R. Ambedkar introduced an amendment to prevent Article 26 from becoming an ‘absolute right’.

Articles 25 and 26 of the Constitution must be harmoniously interpreted so that the right to ‘manage’ found within Article 26 does not eclipse the rights under Article 25.

The makers of the Constitution, while constructing Article 26(b), deliberately used the word ‘manage’ instead of the word ‘control’, which denotes the legislative intention.

The word ‘manage’ has been defined in Black’s Law Dictionary as “to exercise executive, administrative, and supervisory powers”. Whereas the word ‘control’ has been defined as “to regulate or govern”. It is evident that the right to ‘control’ is in a broader spectrum, whereas the right to ‘manage’ is limited and denotes administrative functions.

Article 26(b) of the Constitution does not bestow upon the religious denominations any right of ‘control’ but rather a much truncated right of ‘managing’.

The use of the word ‘manage’ in the place of ‘control’ is intentional as the Constitution, while dealing with other provisions has explicitly used the term ‘control’.

Guruswamy: So our drafters were alive to the same dilemmas that your Lordships are faced with 75 years later. The difference is simply this, that your lordships have the benefit of the introspection of the drafters, the fruits of their introspection, which is the text of the Constitution, which reads in a certain way and the knowledge that Parliament, even at the time of founding of the Republic in those very difficult times, had the courage to wade into Hindu law and pass reform, social reform, as Mr Munshi will say in the context of marriage, divorce, inheritance, succession, guardianship, maintenance.

Guruswami: The constitution wading far in, my lords, to address what has accumulated over thousands of years of discriminatory practice

Justice Nagarathna: But Article 25 (2) is not restricted to only Hindus, social welfare and reform and in respect to all religions, as far as Hindus are concerned, opening of all religious institutions of a public character for every section and class.

Guruswamy: So the burden of how do you imagine a new nation to be was never intended to be a new nation without faith. It was intended to be a faith which was open and inclusive to all. There are two ways of enhancing your faith in terms of numbers.

One way is through propagation, the other way is through emancipation, that is also how you increase your numbers. And I think the Constitution was wise to this.

Guruswamy mentions the laws of other nations to show the position of India.

Guruswamy: Two, and this is important. The use of the word manage, my lords, will be seen in Article 26, as opposed to control, and this has not been advanced before. The use of the word manage in Article 26, and not control reflects the constitutional intent to harmonise denominational rights with individual freedoms under Article 25.

Three, the test of proportionality, and this speaks of Justice Bagchi, who made a point yesterday. The test of proportionality ought to be employed to resolve conflicts between individual rights and group rights as well as competing claims that intercede, and I will take your lordships through the test of proportionality.

Guruswamy: The propositions that I would like to advance, my lord, my lady, which I believe are distinct from what you have heard before.

Between 1946 and 1950, while the Constituent Assembly was engaged in framing the Constitution, independent India was simultaneously undertaking a comprehensive codification and reform of Hindu personal laws.

Dr. B.R. Ambedkar, during the debates on the Hindu Code Bill, underscored the necessity of reforming Hindu laws, despite the views of the majority, by observing that: “Sir, much has been made of the fact that there is a great deal of public opinion which is opposed to this Bill. I have certainly not weighed the opinions that we have received, but I do like to say this, that this is hardly a question that we can decide by counting heads. This is not a question which we can decide in accordance with the opinion of the majority. When society is in a transitory stage, leaving the past, going to the future, there are bound to be opposing considerations: one pulling towards the past and one pulling towards the future, and the test that we can apply is no other than the test of one’s conscience. I have not the slightest doubt in my mind that the provisions of this Bill are in perfect consonance with the conscience of the community, and I have therefore, no hesitation in putting forth this measure although it may be as a matter of fact that a large majority of our countrymen do not accept it.”

During the process of codification, significant opposition was raised on grounds of religious sanctity against several reformative measures, including the abolition of caste-based restrictions as a condition for a valid marriage, the prescription of monogamy, and the inclusion of a right to divorce.

Notwithstanding such resistance, the Parliament enacted the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, Hindu Adoptions and Maintenance Act, 1956. These enactments were not isolated legislative exercises; rather, they reflected the same constitutional philosophy that was contained in Part III of the Constitution.

The reformative ethos of religion and Hinduism, in particular, is reflected in the language of Article 25 of the Constitution.

The language of Art. 25 makes it abundantly clear that the Drafters gave pre-eminence to the right to ‘freedom of conscience’ and hence placed it before the right to freely profess, practice and propagate religion.

The nine-judge bench resumed hearing post lunch.

Senior advocate Menaka Guruswamy starts her submission.

Guruswamy: It’s my first nine-judge bench argument, my lord. I wanted to only assist this court as an officer of this court in the context of legal interpretation of the constitutional provisions and nothing more. I am here only in an application that was filed by Swami Agnivesh.

According to the written submissions of Dr Guruswamy, the rationale underlying Articles 15, 16, 17, and 25 permitting State intervention is rooted in India’s social history, wherein temples and religious institutions historically excluded classes of Hindus, warranting constitutional measures to ensure inclusion.

"A religion may expand in two ways—through propagation of its faith and through internal reform that enables the inclusion of those historically excluded from its fold. The architecture of our Constitution has only expanded the constituency of Hinduism, and today, if Hindu Women are kept out of temples, then the same would whittle down the intent of the Constitution and also inhibit the growth of Hinduism," she said.

Hegde: My lords, discrimination has not gone away. Today, we have a Bhim Grantha, which is the constitution of India; it is in that we place our hopes, and, my lords, if I come to collective protections and the sum of individual rights…

Justice Nagarathna: The common factor in all these stances, which you quoted that they were all great devotees of the lord. The lord appeared or pleased because of the devotion. That is a quality of the believer.

Hegde: My lord, there is belief, but the lord does not turn away any believer or my body who has even half a belief as long as you respectfully come. It is not men's province to push away anybody who comes respectfully in belief or without belief; also, belief can come later.

Hegde: Let’s speak of a rationalist perspective. What is it? Well, it’s we rationalist are not necessarily it is. We are people who say that look at everything, including religion, has to go through the filter of reason. The rationalist principle is also relevant with regard to the actual constitutional history and the history of these two provisions. It is my respectful submission, my lord, that one should not take just these two provisions alone.

Hansaria: What I am saying is that there are no temples where women of this particular age are restricted…50 40 years of my prime life, I cannot go to a deity to whom I revere and devotion as a family.

Justice Nagarathna: Ayyappa temple in India or in the world, they can go.

Hansaria: I'm requesting... 9 of yours if, in a given case, if a social welfare legislation is made by the state, that legislation has to be upheld a lot and cannot be struck down on the grounds of any religious practice.

Hansaria: If a law made under Article 25 (2) (b), that law cannot be struck down on the grounds of my lord, religious practice, be it essential, be it rational, or be it whatever. Because Article 26 (2) (b) overrides 25 (1) as well as 26.

Hansaria: Well, in the context of the Sabarimala temple, your lordships are not adjudicating it. But some facts are necessary. The whole basis of debarring women if they are of a menstrual age. Consider me as a 10-year-old girl. I'm going with my family. Regarding menstruation is a taboo and stigma.

Hansaria is reading his submission.

Senior advocate Vijay Hansaria starts his submission.

Justice Nagarathna: No, denominational temples are not private.

Gupta: So far it it is those.. denominations are those which are at variance with the mainstream to some extent. Hence, just like minorities may not, it was felt that they might require protection, that is my lord submission. It is not without something which follows from the Constitution. We are trying to discover because this religious denomination is a, is a concept which is very.

Gupta: Now, before I proceed any further down this route, my lord, it has been suggested to your Lordship that the Hindi word sampraday should be used, not the English word religious denomination.

Gupta: One of the main aspects of social reform, respectfully submit, was the throwing open of Hindu religious institutions of public character to all classes.

Justice Nagarathna: Article 25 (2) (b) in the name of reform cannot violate what is guaranteed under Article 25 (1).

Gupta: Yes, it can, my Lord. That is the whole of my submission.

Justice Nagarathna: It can't hollow out the religion.

Gupta: Hollow out is a big word.

Gupta: Social rules have sometimes been sanctified by making it a religious practice. So if you want to reform the social rule, you will have to touch on religion, and therefore, my lord, the state has been given that power because this is not judicial review. This is not about the court deciding. This is about the state deciding. And it being made absolutely clear that when the state goes into this question, it is not infringing on the religious rights because a separate compartment has been created in the constitution itself.

Gupta: That’s what the Sheshmal says, that how you will appoint the person is not a matter of religion, what they do, what their qualifications are required, is a matter of religion, but not this. And my lord, this is an aspect, and I just want to highlight it in the same context, it may be pointed out that this honourable court held that the legislation could be supported also on the ground of social welfare and reform inasmuch as the legislation was based on the report of the Hindu Religious Endowment Commission…headed by C P Ramaayyar. This report pointed out that there is a crying need to reform in this direction, since the hereditary principle of appointment of Archakas had led to grave malpractice, practically destroying the sanctity of worship in various religious institutions.

Gupta: Now, I come to Article 25 (2) (a). Sometimes there is a conflict between different religious practices, either within the same religion or between two religions. Here, the conflict is whether it is a religious practice or a secular activity associated with religion. That’s the language of the Constitution.

Senior advocate Gupta is referring to another case concerning the procession where the Tandaav dance is carried out.

CJI Surya Kant welcomes and introduces the judges of Bhutan who are on an official visit.

The nine-judge bench will resume soon to continue the hearing of the Sabarimala case.