Sabarimala Reference | Day 9

Pasha: Can a non-believer demand entry?

Referring to a law student who sought entry to the inner sanctum of the Hazrat Nizamuddin Dargah, Advocate Nizam Pasha said “This is one of the biggest examples of misusing the 2018 judgement.” He questioned whether “a complete third party, a non-believer, can enter a place of worship and demand that matters of faith must yield to their individual claims?” Arguing that Articles 25 and 26 do not contemplate such a right, he submitted that a place of worship is “nothing but a belief system,” and maintained that faith cannot be redefined by those who do not subscribe to it.

Pasha: Denomination decides entry

When Justice Ahsanuddin Amanullah  asked whether dargahs were being placed at a “higher pedestal” as denominations, Pasha argued that Sufi dargahs, particularly of the Chishtiya order, qualify as religious denominations. Relying on Sri Venkataramana Devaru v State of Mysore (1957) he submitted that unrestricted access does not dilute denominational character, and contended that the issue was not conclusively determined in Durgah Committee v Syed Hussain Ali (1961). Pasha warned that excluding such institutions from Article 26 would lead to “absurd consequences.” Drawing a clear line between Articles 25 and 26, he argued that the former protects individual conscience while the latter secures a collective right to manage religious affairs. Entry under Article 25(2)(b), he said, is confined to the context of social reform. When Justice Joymalya Bagchi raised concerns about the limits of such protection, Pasha accepted that even religious practices remain subject to public order, morality and health but contended that social reform is also limited to the same.

On the structure of Article 25, Pasha submitted that clause (2) was originally conceived as an explanation, with Article 25(2)(a) indicating what falls outside religion and Article 25(2)(b) operating within Article 25(1). On constitutional morality, he submitted that the“Parliament speaks for the people,” while cautioning against majoritarian tendencies. Referring to Sardar Syedna Taher Saifuddin v State of Bombay (1962), he argued that the essential religious practices doctrine was originally protective in nature but has since been expanded beyond its textual basis. When the Bench raised concerns about who controls practices within a place of worship, he submitted, “In every single case there will be a right holder,” and that in such cases, the right lies with the denomination not with individuals who do not subscribe to the faith.

Potaraju: Limits of judicial scrutiny in matters of faith

Senior Advocate Sridhar Potaraju submitted that the starting point must be the structure of Part III, wherein “the sovereign has parted with certain powers and reserved certain powers,” and the Court is called upon to identify the scope of those retained freedoms. Asserting that his right flows from Article 25, read with 21, he asked, “If it is a fundamental right the sovereign has reserved to itself, where is the right to qualify it with tests?” Referring to India’s historical “diversity of worship” and the evolution of religious practices, Potaraju emphasised that the Constitution does not define who a Hindu is. He submitted that in examining religious belief a non-believer has to be excluded since faith cannot be assessed from an external standpoint. Any attempt to shift protections between Articles 25 and 26 is not an interpretative exercise, he said, and argued that denominational association, much like the right to associate generally, reflects an inherent autonomy in spiritual matters that must remain beyond judicial reconfiguration.

Divan: Individual faith needs institutional support

Senior Advocate Madhavi Divan, appearing for worshippers of sacred groves or “orans” in western Rajasthan, submitted that these practices reflect an ancient form of nature worship where the manifestation of divinity is the forest, marked by non-violence and customary abstinence. She argued that such communities, though loosely organised and rooted in village traditions, still fall within the protection of Articles 25 and 26. Emphasising the relationship between the two, she submitted, “In order for me to be able to enjoy Article 25… I need Article 26,” describing the rights as symbiotic. Even the most personal aspect of religious freedom, she argued, such as freedom of conscience, cannot be exercised in isolation and often requires access to spaces, institutions, and shared practices. Responding to Justice Amanullah’s concern about the breadth of such claims, particularly that it may allow communities to assert control over entire forests, she maintained that such claims are judicially determinable and pointed to comparable practices such as water temples in Uttarakhand.

Divan: Article 25 cannot depend on denomination

Divan argued that treating denominational status under Article 26 as a gateway to fully realise Article 25 would create a constitutional imbalance, since Article 25 guarantees rights to “all persons”. She posed the question: if one group satisfies the test of denomination and another does not, how will their respective rights  be equally protected? She warned that an overemphasis on denominational classification risks creating “a recipe for survival of the fittest,” leading to exclusion and polarisation. Justice M.M. Sundresh observed that denomination represents the collective rights of believers and cannot override individual adherents, while Justice B.V. Nagarathna clarified that denominational autonomy under Article 26(b) is protected, but if practices affect society at large, the State may intervene under Article 25(2)(b) for social reform. Divan maintained that all persons are equally entitled to religious freedom, and that institutional support cannot be made contingent on formal denominational recognition, particularly for communities that are not structured or organised in the conventional sense.

Upadhyay: “Bharat has been divided into 25 pieces”

Advocate Ashwini Kumar Upadhyay began by arguing that “Dharma cannot be translated into religion,” and that Articles 25 and 26 are among the “most restricted” fundamental rights, both tightly controlled by public order, morality, health and the wider scheme of Part III. Moving beyond the issue being heard, he said the Court must think of consequences, reminding the Bench that “My Lords’ oath is to uphold the Constitution… Bharat has been divided in 25 pieces due to denominational conflicts…” He pressed the point further, asking what would follow if the arguments on the other side were accepted, whether “in 25 years we will become scientifically developed countries like China or countries like Pakistan or Afghanistan.” Upadhyay then submitted that Article 25 is the foundational right and Article 26 only a “species,” that anti-conversion laws proceed on the basis that religion is an individual right, and that “the root cause of the 1847 conflict was denomination v denomination.” 

At this stage, the Bench began to push back. Justice R. Mahadevan stepped in first, telling him he was “going beyond the subject”. Justice Amanullah concurred. Upadhyay, however, continued on the same thread, stating that “the entire world is burning due to religious conflict.” Here, Chief Justice Surya Kant cut him short, indicating that his time was over. In a hurried closing, Upadhyay reiterated his point about Article 25 and drew an analogy that while there may be lakhs of mosques and churches, only some have distinct sanctity, just as Sabarimala does among numerous temples.

(This report will be updated throughout the day)