Day 1 Final Arguments: 17 February 2020

In November 2019, the Bench hearing the Sabarimala review petitions referred certain overarching freedom of religion questions to a larger Bench. Last month, the Chief Justice constituted a nine-judge Bench to hear these overarching questions. The following issues are up for consideration:

  1. What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
  2. What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?
  3. Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?
  4. What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?
  5. What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?
  6. What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution of India?
  7. Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?


The Bench comprises Chief Justice SA Bobde and Justices R. Banumathi, Ashok Bhushan, Nageswara Rao, Mohan Shantanagoudar, Abdul Nazeer, Subhash Reddy, Bhushan Ramkrishna Gavai and Surya Kant.


Today, in a roughly one-hour hearing, Solicitor General Tushar Mehta placed relevant judgments before the Court and made preliminary submissions on the aforementioned issues.


Setting up the schedule

Before arguments began, Chief Justice Bobde briefly addressed how time would be allocated to each counsel to make arguments. Senior Advocate K Parasaran submitted that he had drafted a proposed schedule and placed it on the record. It included the order in which counsels would argue. He noted that he had left thirty-minutes for unforseen changes. 


Sr. Adv. Indira Jaising said she had also submitted a schedule to the Registrar. She stressed that it was yet unclear which counsels are on which side and that some appear to be on both sides.


Both Sr. Adv. Parasaran and Sr. Adv. Jaising agreed that the Solicitor General (SG) should commence arguments. The Bench observed that SG Tushar Mehta will be granted 1.5 days to argue, after which his propositions could be countered by the other counsels.


The Bench is likely to hear Sr. Adv. Fali Nariman after the Solicitor General concludes.


Solicitor General lists judgments

After discussing the schedule, the Bench heard SG Tushar Mehta make submissions on behalf of the Union. He went through a series of landmark judgments on the fundamental right to freedom of religion. While doing so, he offered various general observations about Articles 25 and 26Note that the below summary is not organized chronologically.


Reflecting on the scope and ambit of freedom of religion, he made the broad submission that only secular activities could be regulated. Chief Justice Bobde agreed, observing that only the secular parts of religious activity are subject to regulation. These are necessarily material in nature. For example, they may pertain to land administration, fiscal matters, etc. Offering a counter-example, Chief Just Bobde observed that the State could not regulate namaz. The Solicitor General added that whether an activity was secular ought to be decided on a case-by-case basis.


Having established this, the Solicitor General clarified that essential religious practices (ERP) may be subject to regulation in certain exceptional circumstances. An ERP is a practice deemed so essential to a religion, that to cease its operation would inexorably alter said religion. SG Tushar Mehta specified that the Constitution clearly states that freedom of religion is subject to public order. He added that ERPs may also be subject to social reform mandates.


Touching upon the relation between freedom of religion and other fundamental rights, Solicitor General Tushar Mehta said that fundamental rights do not exist in isolation. He put forth that Article 25 is subject to the other rights guaranteed in Part III of the Constitution. On the other hand, he contended that the text of Article 26 does not indicate it is subject to other fundamental rights. 


Turning to Article 26, he emphasised that one of the most crucial issues in the Sabarimala review petitions turns on how the Court chooses to define ‘religious denomination’. He submitted that the Shirur Mutt judgment provides a concrete definition of ‘religious denomination’. He said that this definition is such a well-established precedent that it has become almost legislative in nature.


In conclusion, SG Mehta made a general observation on the judgments he had taken the Bench through. He said that they all have two features in common. First, the affected parties were always litigants in the matter (relevant to issue 7). Second, there was always a specific legislation under challenge.


There were two key issues that the Solicitor General raised today. First, whether ritual or modes of worship amount to a religion? Second, whether the Court or a religious denomination can determine if a practice is an essential religious practice?


The Bench will continue hearing the Solicitor General in the next hearing.

(Court reporting by Abhishek Sankritik)