“THE CONSTITUENT ASSEMBLY DEBATED Articles 25 and 26 for a total of four days. We are now in our tenth day,” Senior Advocate Indira Jaising told the nine-judge Constitution Bench on Wednesday, “We seem to be sitting here as a Constituent Assembly, completing the job which the Constituent Assembly left incomplete… supposedly, because fifty-five counsel on the other side are telling you that they didn’t do their job.”
After nine days of submissions by the Review Petitioners, the Bench led by Chief Justice Surya Kant yesterday began hearing the Respondents, with Jaising opening for two Hindu women, Bindu and Kanakadurga, who had entered the Sabarimala temple following the 2018 Sabarimala judgment.
Jaising argued across the length of the day that exclusion is a form of untouchability under Article 17, that the right under Article 25(1) is in the nature of a freedom and not merely a claim, that the Constitution is the grundnorm above which no norm can stand, and that the meaning of ‘morality’ is constitutional, not public morality. She also discussed the limits of denominational rights under Article 26, what constitutes a religious denomination, the binding character of the Reference’s outcome, and why the Essential Religious Practices (‘ERP’) test, with its flaws, cannot simply be discarded.
‘Entry flows from Article 25(1). It is a freedom, not a claim’: Jaising
Jaising insisted that Article 25(1) conferred a freedom, not a right in the narrow sense. “When I enter a temple as a woman, you have to show me which of the limitations I have violated. Because I have that freedom,” she said. She described the right to enter a public temple as a right in rem, one that determines a person’s status in law, just as the status of being Hindu does. “You cannot take away my status as a Hindu from me. No one else can renounce it, only I can.”
Chief Justice Surya Kant asked whether Article 25(1) conferred a new right or merely recognised a pre-existing one, noting the answer would affect the scope of limitations. Jaising said she was content with either formulation. In both cases, the right carried constitutional weight and was subject only to the express limitations in Article 25(1) itself.
She was clear that her claim was confined to entry, not to what happened inside. “This Court has protected ritualistic ceremonies. I cannot go to the Pujari and say, offer flowers instead of a coconut. That line has been drawn and I do not seek to cross it,” she noted, adding that the only question was whether the denomination’s right under Article 26 could ‘eclipse’ the individual’s right under Article 25(1). “It is the other way around,” she submitted.
‘I need to go with shradda. But I do not need to believe in everything’: Jaising
Jaising described how Bindu, one of the women she represented, had visited the Sabarimala temple at age forty following the 2018 judgment, having last gone as a child of eleven. Justice Aravind Kumar asked drily, “So suddenly, one morning, you wake up, and you decide to go?”
“We all wake up with judgments of this court,” Jaising responded.
Justice B.V. Nagarathna pressed further, asking whether Bindu was a devotee at all. Jaising paused and said, “If I say she went for introspection, will that satisfy the Court?” Justice Nagarathna was unconvinced, “We respect introspection, but it does not come in one day.” Jaising then offered, “If I say she went as an act of conscience, will that satisfy the Court?”
“True devotees between the age of ten and fifty stay at home and don't go,” Justice Nagarathna said. Justice Ahsanuddin Amanullah offered a counterpoint in Jaising’s favour and noted, “Nobody knows if they will live till fifty. So for all practical purposes, it can amount to a permanent disability.”
Jaising maintained that entry did not require proof of devotion. “I need to go with reverence, with shraddha. I cannot go for the purpose of making mischief. But I do not have to necessarily agree with everything. How many of us go to temples without really believing in that particular deity? That is what Hinduism is,” she said. She also challenged the Review Petitioners to “show me in the theology of Hinduism a bar on women entering temples. It is not there.”
‘No religious practice can be recognised if it violates Article 17’: Jaising
Jaising explained that the conceptual basis for excluding women of menstruating age was pollution, purity, defilement and thus identical to the basis on which untouchability had historically operated. “Three words. Pollution, purity, defilement. Any custom based on these notions must go under Article 17,” she said.
Jaising highlighted that in the Constituent Assembly, during the drafting of Article 17, an amendment seeking to confine the provision to caste-based untouchability alone had been moved. But it had been rejected, because the framers did not wish to anticipate all future forms. Constituent Assembly member K.T. Shah had warned at the time that absent a definition, “even the disqualification of persons of a certain age” could fall within untouchability.
She also pointed to the Travancore Dewan’s Report of the Temple Entry Committee (1934), filed in the record of these proceedings, which had documented the parity between the treatment of Scheduled Caste persons and women during menstruation in temple-entry practices in Kerala. After Bindu entered the temple following the 2018 judgment, a purification ceremony was performed, Jaising told the Court, which itself was evidence of the defilement logic at work.
Justice Nagarathna responded that such practices need not be seen as pollution or defilement in the untouchability sense, a reservation she had expressed at earlier hearings too.
‘Don’t throw the ERP test out of the window’: Jaising
Jaising cautioned the Bench against discarding the ERP test entirely, even though she did not regard it as the only route to her conclusion. “Throw out the essential practices test and you throw out the only tool this Court has evolved to harmonise individual and denominational rights,” she asserted, “If you throw it out, the autonomy argument will prevail and that is the end of it.”
She argued, however, that religion itself determines what is essential. The Court only uses that determination to harmonise competing rights. “I am not inviting you to become theologians. I am inviting you to have knowledge of the theology of a particular institution and then take your decision,” she said, noting that Indian courts had taken expert evidence on religious questions since Warren Hastings’ proclamation of 1772, which first directed courts to apply Hindu and Muslim law respectively. “India has a single hierarchical system of courts. We do not have Sharia courts, we do not have ecclesiastical courts. It is impermissible to say this Court cannot decide questions of religion,” she submitted.
Justice M.M. Sundresh cautioned that courts would need to be circumspect in dealing with essentiality. Justice Amanullah raised the concern that the Court would end up assuming the role of theologians when interpretations within a religion were divided.
“Every time the Court intervenes, there has to be a limit. Otherwise, the protection will look illusory,” he said.
Jaising also put forward social reform under Article 25(2)(b) as an alternative route to the same conclusion. “Whichever way you do it — essential practices or social reform — the harmonisation principle cannot be avoided,” she said. “And whatever test you apply, the outcome will be my entry.”
‘The Constitution is the grundnorm. Everything else must yield’: Jaising
Jaising argued that ‘morality’ in Articles 25 and 26 must be read as constitutional morality, not public morality. “The public can be full of prejudice,” she noted. “If public morality as reflected in legislation were the standard, there would be no need for judicial review at all.”
She added that constitutional morality was not a vague or free-floating concept. Every judgment which had invoked constitutional morality had pegged it firmly to a specific fundamental right, directive principle, or the preamble.
She described the Constitution as the grundnorm in the Kelsenian sense. “There is no norm higher than the Constitution in this country. Everything else, be it culture, religion, custom, practice must be judged against it.” She urged the Bench not to accept what she characterised as an indirect attack on judicial review dressed up as deference to religion. “Are we being told that religion is hands off from this court? My answer is no,” she said.
‘No temple has been given denominational status in seventy-five years and there is a reason for that’: Jaising
Jaising challenged the expansive claims to religious denominational status made by several Review Petitioners. She pressed the Court to note that in the entire seventy-five-year history of the Supreme Court, not a single temple had been accorded denominational status, only mutts had. “There is surely a reason for that,” she said. A denomination, she argued, required doctrinal difference, an organisation, a name, a corporate personality and critically, in the case of mutts, a living guru. “A temple does not need a living guru. A mutt needs a living guru. You cannot say I am a temple, therefore I am a denomination,” she submitted.
Jaising pointed out that the Supreme Court in Sri Krishna Singh v. Mathura Ahir (1981) had laid down what truly distinguished a religious denomination from the main religion, that is, a doctrinal, not merely ritualistic, difference from the broader religion.
‘You are not only deciding Sabarimala’: Jaising
Jaising sounded a note of caution on the breadth of the Bench’s eventual opinion. She noted that anti-conversion law petitions, the marital rape exception, the Parsi women’s exclusion from agiary after inter-faith marriage, the excommunication cases, and questions around the Uniform Civil Code were all pending before the Court and would be shaped by whatever principles were laid down here.
“Whatever you say in this case is going to decide not only the cases before you, but also the cases that are not before you,” she warned. She argued that while sitting in a reference, the Bench could not overrule prior judgments. It could declare the law, but that declaration’s binding character over pending proceedings remained a question she pressed the Bench to answer squarely.
She closed by invoking the parable of Shabari, the woman of the Ramayana who tasted berries before offering them to Lord Ram to ensure none were bitter. When Lakshman objected, Ram replied that he was honouring her belief, her act of love. “That same Sabarimala – the hill of Shabari – you are keeping me out. I am also Shabari,” she said.
The Court will continue hearing the matter on Tuesday, May 5.
