Sabarimala Reference | Day 7: Social welfare legislation cannot “eviscerate” denominational rights, review petitioners argue
Sabarimala ReviewJudges: Surya Kant CJI, B.V. Nagarathna J, M.M. Sundresh J, Ahsanuddin Amanullah J, Aravind Kumar J, A.G. Masih J, P.B. Varale J, R. Mahadevan J, Joymalya Bagchi J
A nine-judge Constitution Bench will hear arguments on issues concerning the Essential Religious Practice doctrine, the interpretation of Article 25 and 26, and the validity of the 2018 Judgement which held that practices prohibiting the entry of women in the Sabarimala Temple were unconstitutional. The Court has heard six days of arguments so far.
On Day 1, the Union government argued that religious denominations should be allowed to manage their religious affairs and challenged the ERP doctrine.
On Day 2, the Union argued that constitutional morality cannot be a ground to review religious practices.
On Day 3, the Union invoked “sampradaya” and “sadachaar” and questioned the limits of judicial scrutiny in religious matters.
On Day 4, parties favouring a review of the 2018 decision argued that public interest litigations cannot challenge religious practices.
On Day 5, the review petitioners argued that the ERP doctrine was “unstable” and “unworkable”
On Day 6, the Court asked whether a believer or a devotee can challenge a religious practice followed in a temple.
Here’s our update from Day 7 so far:
Key Issues
- 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?
- 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?
- What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
- 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?
- What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution of India?
- 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?
Subramanium: Understanding Article 25
Continuing his arguments from the previous day, Senior Advocate Gopal Subramanium argued that Article 25(1) is at the centre of the constitutional scheme as it represents the “expanse of religious freedom.” He submitted, “All persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion,”. These words, he contended, must be understood in an expansive and fundamental manner before interpreting the concept of denomination under Article 26. According to him, Article 25(1) covers four aspects: the doctrinal or philosophical content of a faith, the practices associated with that philosophy, the right of worship, and the extent of belief.
He added that these rights are subject to public order, morality and health and to other provisions of Part III. He also distinguished between conscience and religion, submitting that conscience is internal and may exist even in an agnostic or atheistic individual, whereas religion is a system of beliefs with a doctrinal foundation.
Subramanium: How denomination operates
Subramanium submitted that denominational rights are not divorced from individual rights under Article 25(1). He explained that when individuals come together in an institutional setting, they continue to exercise Article 25(1) rights, but in a collective form that attracts protection under Article 26—the freedom to manage religious affairs. Justice Joymalya Bagchi asked whether there can be proponents and opponents within a denomination. Subramanium responded that a denomination is not an “inert” body and that there can be discussion and debates, as multiple schools of philosophy exist within the same faith.
At the same time, Subramanium submitted that while Article 25(1) allows an individual to navigate matters of religion, once a person adopts a creed and associates with a denomination, he is expected to function within its discipline. He submitted that it is not ordinarily open to such a person to enter a denomination and seek to alter its doctrine from within.
Subramanium: Essential religious practices as a tool
Justice B.V. Nagarathna observed that an impression has been created that only essential practices are protected. Subramanium responded that the doctrine should not be discarded. He submitted that it serves as a tool to identify claims that are “masked” as religious but do not in fact belong to religion. Justice Nagarathna further observed that the court cannot sit in judgment as to what is an essential religious practice, while Justice Sundresh stated that the doctrine may still have relevance in judicial review, particularly where Article 25(2)(b) is invoked. Subramanium submitted that courts are not precluded from examining what constitutes religion, its tenets, and how a belief is asserted, so long as the inquiry remains within constitutional limits. He stated that the only area beyond scrutiny is the inner realm of faith of a devotee.
Subramanium: Social reform and court scrutiny
On Article 25(2)(b), Subramanium submitted that social welfare and reform cannot be used to invade denominational rights under Article 26(b). There must be scrutiny to determine whether a law genuinely advances social reform. Justice Nagarathna posed a hypothetical question on temple entry, asking whether permitting entry in the name of social reform would amount to an invasion. Subramanium responded that courts would have to examine whether the exclusion is based on custom or usage and whether it fundamentally takes away the rights of devotees.
On constitutional morality, Justice Ahsanuddin Amanullah asked whether it can be a ground for judicial review. Subramanium responded, “It cannot be an exclusive factor in judicial review,” and said it cannot operate as an independent test to strike down legislation. He submitted that provisions for equality and abolishment of untouchability under Article 14 and Article 17 themselves embody moral principles. However, constitutional morality must be rooted in the text of the Constitution and cannot be used as a standalone doctrine.
Justice Sundresh asked how far the State’s power to legislate extends when a religious practice conflicts with other provisions of Part III. Subramanium submitted that Articles 25(2)(a) and (b) enable legislation in specific areas, but such power must be exercised carefully. He said that while social reform laws may have a wide scope, they must have a direct nexus with the objective sought to be achieved and must not “eviscerate” denominational rights under Article 26. He added that otherwise Article 25(2)(b) would become an overarching intrusion into religious freedom.
(This report will be updated throughout the day)