Sabarimala Reference | Day 11

Gupta: Reference stretched beyond its footing

Advocate Ravi Prakash Gupta began arguments for the Indian Young Lawyers Association—the organisation behind the 2018 Sabarimala judgement. Gupta challenged the maintainability of the reference arguing that it was “made to unsettle a settled law.” He argued that the five-judge review Bench had referred the matter to a seven-judge Bench, not a nine-judge Bench,  and argued that the speaking order does not refer this matter to a nine-judge bench. He submitted that a smaller Bench cannot doubt the correctness of a larger Bench and can only place the issue before the Chief Justice on the administrative side, not on the judicial side. As he pressed this point, Chief Justice Surya Kant observed, “Objection against the reference has been taken down… you are not filing a review.” The maintainability of the reference was upheld by a nine-judge bench in February 2020. Justices B.V. Nagarathna and M.M. Sundresh told him to move to relevant arguments..Justice Nagarathna responded that the issue would necessarily require consideration of the seven-judge bench decision in Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) and therefore warranted a larger Bench.

Gupta argued that the reference had not been registered as a reference case under the Supreme Court Rules and compared it to the recent Presidential Reference and the Ayodhya reference, which are separately registered. Justice Joymalya Bagchi responded that the power of the Chief Justice to constitute a larger Bench has been traced to Article 32 and is not governed by the Supreme Court Rules. When Gupta persisted, Justice Sundresh remarked, “Mr Gupta, listen to us. You are looking everywhere except us.” Gupta suggested that such references ought to be separately registered and flagged the use of the same cause list, to which the Chief Justice responded that it may be “a good suggestion on the administrative side,” but not one affecting the validity of the present proceedings.

Gupta: Entry as a right, limits of denominational control

On the merits, Gupta submitted that the Constitution recognises three layers of protection: individual rights under Article 25, denominational rights under Article 26 and the State’s power to regulate. He argued that the right to practice religion under Article 25 extends to “all persons” and includes the right of entry into places of worship, provided the person complies with the rituals and practices followed there. He submitted that this right is not confined to adherents of a particular faith. Justice Nagarathna questioned this formulation, observing, “The ones who have faith in the deity will perform all that is needed.” She asked whether persons without belief could insist on entry and said that someone who says they will not follow the “niyams” cannot be encouraged by the Court.

Gupta further submitted that denominational autonomy under Article 26(b) cannot be placed beyond judicial scrutiny, stating that such rights should not be kept so high that they are beyond judicial review. He argued that Articles 25 and 26 must be harmonised and that the right under Article 25 cannot be reduced “to a husk” in the process. He also contended that exclusionary practices cannot be justified merely by labelling them religious, referring to practices such as sati and other historical customs to argue that reform has always been part of constitutional evolution.

Gupta: Bench questions locus and purpose of PIL

At several points, the Bench questioned the very basis of the petition. Justice Nagarathna asked, “How does a juristic body like yours have a belief?You do not have a conscience.”She said it could have “devastating consequences,” repeatedly asking what the objective of the PIL was and “what good has come out of it.” The Bench noted that the petition appeared to be based on newspaper reports. Justice Nagarathna observed, “It is easy to get articles written for the purpose of PIL,” while CJI Surya Kant remarked that such material “should have been thrown out outright,” adding that if there was misconduct by any individual, the proper course would have been to proceed against that person under law rather than invoke the Court’s jurisdiction through a PIL.

Gupta: Reform cannot override Article 25

Gupta submitted that the present reference raises an issue arising from the development of the essential religious practices test. He relied on Shirur Mutt to argue that what constitutes an essential religious practice must be determined by the denomination itself and contrasted this with Durgah Committee v Syed Hussain Ali (1961), where the Court assumed the power to exclude practices it considers “secular” or “superstitious.” He submitted that this shift has led courts into questions of theology and belief which were not contemplated in Shirur Mutt. Referring to the submissions of the Solicitor General, who had accepted the position except in relation to “superstitious beliefs,” Gupta argued that such a formulation cannot be used to override the protection under Article 25(1) and that labelling a practice as superstitious cannot become the basis for judicial interference. He further submitted that even where reform is invoked under Article 25(2)(b), it does not exist independently and must be read as part of the broader scheme of Article 25. He pointed out that in the Sabarimala context, the restriction on entry flowed from Rule 3(b) framed under the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, and argued that there cannot be any custom that violates constitutional guarantees.