ON THURSDAY, a nine-judge Constitution Bench of the Supreme Court led by Chief Justice of India Surya Kant concluded sixteen days of hearings in the Sabarimala Reference and reserved judgment. On Wednesday and Thursday, the last two days of hearings, Respondents, Review Petitioners and the Union government put forward a plethora of submissions.
‘Protect religion, but acknowledge it can also be impediment for social justice’: Prof. G. Mohan Gopal
On Tuesday, Dr. G. Mohan Gopal, representing an intervener Sree Narayana Manava Dharmam Trust, commenced his submissions by bringing the Court’s attention to the question of the “demand for social justice” within the very spheres of religious communities. He argued that the right of people within a community to usher reforms is also as an act protected by the constructions of Articles 25 and 26 . Gopal in his submissions termed the Sabarimala Reference as not just any other case but a deep reflection on the conceptuality of religion itself. He made reference to a document which was submitted by Dr. B.R. Ambedkar as a proposal for the right to religion which in its Clause 14 talked about the liberty of conscience which ought to be guaranteed by the State.
He further submitted that faith in god should not be substituted with faith in clergy. He expanded that by the virtue of faith no individual can be compelled to become ‘ a member of the religious association which is inclusive of not being compelled to follow religious instructions.
He pressed upon the need to ‘protect religion’ whilst acknowledging that religion could be an impediment for ‘social justice’ highlighting the need for regulation of the same.
Gopal submitted that individuals are not ‘subsumed by religion but are instead consumed by religion’. He highlighted the vastness of religion by noting how the framework of religion followed by individuals in India adheres to the conceptual framework of ‘authotheism’, wherein the act of “lighting a lamp in one’s hut” is adequate for calling it a religion for that particular person. He also stated that the decision to attribute sacredness to something lies at the complete discretion of the individual.
He cautioned the Court regarding the perils of accepting the arguments made by the other side as it would lead to ’any group claiming to be a religious denomination in this country at their own will inevitably making it possible for such a community to supersede Article 15 and Part III of the constitution. He urged the Court to not allow the faith in god which emanates from an individual’s conscience to be defeated by faith in clergy.
‘Article 26 does not confer denominations plenary authority over personal religious choices’: Senior Advocate Rakesh Khanna
Senior Advocate Rakesh Khanna argued that a secular state is not expected to interfere in religious matters surpassing the power enshrined on it as part of the constitutional framework. He submitted that the power given to religious denominations to formulate their own norms in order to regulate their affairs pertaining to religion is not a concrete absolute power.
On the interplay between Articles 25 and 26, he submitted that ‘a provision of the constitutional instrument cannot be read in isolation’ and the two provisions “are not merely neighbours as they represent individual and collective rights respectively”. In his submissions he pressed that both Article 25 and 26 merge to pave the way for an overarching right guaranteeing freedom of religion, belief and practice. He argued that Article 25 serves as “a constitutional gateway” which the person professing the common religion faith may, by a natural exercise of their individual rights or practice and propagate, organize themselves into a religious collective or institution through which the person professing a common religious faith may, by a natural exercise of their individual rights and to practice and propagate, organise themselves into a religious collective or institution.
Khanna argued that while Article 26(b) protected the autonomy of a religious denomination from an unwarranted state intervention “it does not confer upon the denomination a plenary authority over the body, integrity, conscious and personal religious choices of the individual members who constitute it”.
He also pointed out that Article 13 of the Constitution views law as not just acts of legislature but is inclusive of religious customs and usage as well. The norms which are prescribed by a religious denomination for managing their own affairs can be evidently placed in the category of ‘non-legislative law’, and therefore fall well within the scope of Article 13, making them susceptible to to be examined for constitutional validity before a court of law. He stressed upon the precariousness of an interpretation of giving a vast immunity to such religious denominations leading to an infringement of the fundamental rights.
In his submissions, Khanna emphasised on Kelson’s theory of the Constitution being a grundnorm which ultimately made the rules made by religious denominations as the sub-norms recognised under the same constitution.
‘Doctrine of proportionality was never invoked in direct conflict between two fundamental rights’: Respondents
Advocate Prashant Padmanabhan submitted that “Article 25 is the genesis of the right to religion and Article 26 is the facet of that right.” Additionally, he also argued that discriminatory practices cannot be sustained under the guise of religion. On the question of Article 26, he submitted that the ‘group rights laid down in Article 26’ should be viewed to uphold the liberty of religious denominations being subject to equality so as to uphold the dignity of the individuals.
On the question of interpretation of ‘sections of hindus’ mentioned in Article 25(2)(b), he argued that the same should be interpreted to mean ‘all sections of hindus excluding none’.
Advocate Sneha Kalita expounded on the presence of a distinction between ‘inner freedom of conscience and the external manifestation of religion’. She placed reliance on the cases of Rathilal(1954) and Bijoe Emmanuel(1986) respectively whilst submitting that ‘practice and customs when brought into the public sphere remain subject to constitutional limitation’. On the scope of Article 26, she argued that the same cannot be read in a manner which excludes the rights enshrined in Part III of the Constitution and the autonomy granted to a religious denomination within the purview of Article 26 is not an unrestrained autonomy.
Additionally, she argued that the term ‘all classes and sections’ under Article 25(2)(b) is to be interpreted in a manner which is both broad and purposive, and in accordance with the constitutional ethos subsequently upholding substantive equality. She implored the Court to acknowledge that ‘exclusion of women based on a notion of purity is violative of Article 14, 15 and 21.
Advocate Harshit Anand advanced his arguments on ‘Hard claims arising out of Article 25 and 26’. In his submissions, he stated that hard claims are ‘extreme claims of religious practice’ where the result of observing such practices only leads to ‘death’. He made reference to such practices of hard claims arising in the Shvetambara sect of Jainism and certain factions of Hinduism who practice voluntary fasting unto death and ‘Shokusinbutsu’- a practice of self mummification in Buddhism which is explicitly banned in Japan. He further submitted that on observance of such practices, the right to health which is a part of Articles 21, comes into a direct conflict with the individual’s right under Articles 25(1) or 26(b), as such practices inevitably ask to waiver the right to health enshrined in the former set of rights. He argued against the applicability of the Doctrine of Proportionality in such cases as it would unavoidably result in the nullification of one right whilst upholding the other right.
Senior Advocate Indira Jaising succinctly addressed the apprehensions that had amassed before the Court by pressing that the doctrine of proportionality was never invoked in cases pertaining to a direct conflict between two fundamental rights and instead has been routinely invoked as part of cases dealing with administrative law so as to prevent the state to act in an arbitrary or unreasonable manner. She submitted that ‘the harmonisation of rights’ laid down in the ruling given in Devaru(1957) would be a more befitting doctrine that the Court can possibly adopt. She made a reference to the ruling in the case of Mr. ’X’ ‘v. Hospital ‘Z’ (1998), which had employed the principle of harmonisation in resolving the dispute between upholding two competing rights.
‘Essential Religious Practices test narrows scope of Articles 25 and 26’: Solicitor General Tushar Mehta
The latter part of the hearing was designated to the rejoinder submission by Review Petitioners and the Union, with Solicitor General Tushar Mehta spearheading the submissions.
He commenced his submission by acknowledging that the Court has always been illustrious for undertaking an expansive interpretation of the Fundamental Rights. However, this expansionism to the interpretation of the Fundamental Rights was not endowed by the courts while interpreting Articles 25 and 26. He pressed that while interpreting Articles 25 and 26, courts employ the test of essential religious practices by the virtue of which only a religious practice which qualifies as an essential religious practice stands constitutionally protected. Mehta argued on the obvious absence of the test of essential religious practice in the text of the Constitution whilst submitting that the usage of the doctrine narrows the scope of safeguards enshrined in Articles 25 and 26. He submitted that Articles 25 and 26 must be read together and not as standalone provisions of the Constitution. He urged the Court that in order to undertake a scrutiny of Article 25 and 26 and the rights encompassed in the relevant provisions, the Court should not take an ‘ordinary understanding’ whilst construing other rights of the Part III such as Articles 14 and 21. Mehta pressed that in the present case the court must imbibe the perspective of ‘a person who follows religion’ and has a’ belief system’ that is safeguarded by the Constitution.
During the submissions of Solicitor General Mehta , Justice M.M. Sundresh poignantly observed that ‘once something gains constitutional recognition’, which in the present case is the collective belief, then it has to be imperatively observed that such a collective belief is realised in a manner which upholds the very belief and it also becomes imperative on the courts ‘to leave such a collective belief at the wisdom of the collective belief itself’.
Expanding on Justice Sundresh’s observation Justice B.V. Nagarathna underscored the absence of the term ‘religion’ in the Fundamental Rights ranging from Articles 13 to 24. She further opined that the usage of the phrase ‘subject to other provisions’ in Article 25 could be possibly interpreted to ‘operate on the plane of religion’. She also questioned the interpretation of subjecting a fundamental right which deals with religion to a fundamental right which does not have any modicum of relation with religion.
‘Inconceivable to imagine a world of human beings devoid of the existence of religion’: Review Petitioners
Subsequently, Senior Advocate Abhishek Manu Singhvi argued that the freedom of conscience and the right to freely profess, practice and propagate religion cannot be constituted to be of a secondary and subsidiary in nature as he described freedom of religion to be a right that encompassed the broader concepts of liberty, equality, dignity and conscience. He also made a reference to the ruling given in Golaknath (1967) , which had laid down the momentousness of each right which constitute Part III as being an essential requisite to the very formation of an individual’s personality. He also pressed that it is almost inconceivable to imagine a world inhabited by human beings to be devoid of any existence of religion.
Singhvi alerted the Court into undertaking a scrutiny of rationality or the irrationality of a religious practice whilst also imploring the Court to not look at religious practices merely through the modality of a selective preference by a ‘non-believer’ or a ‘dissenting member of such a community’.
Referring to the submissions made by Senior Advocate Sidhharth Luthra on practice of ‘female Genital mutilation’ in the Dawoodi Bohra community, Singhvi argued that the usage of the term ‘Female Genital Mutilation’ for the practice of Khafz was deeply erroneous as the term is generally used to refer to a practice undertaken by certain African tribes. He also submitted that the practice of Khafz within the Bohra community bears great semblance to the practice of male circumcision which is practiced within certain sections of the Muslim community.
As the hearings for the day drew close to an end Senior Advocate J. Sai Deepak made a distinctive submission of ‘secular equality not being applicable to religious institutions as they mostly adhere to scriptural mandates and traditions, additionally submitting that limitations which are a part of Article 25(1) cannot be considered to be a part of Article 26 as the latter provision has its own set of limitations. On the question of rights guaranteed to a denomination, he submitted that a denomination “carries with itself a presumption of exclusivity unless such denomination is of a public character.”
‘In last 75 years, no instances of excommunication among Dawoodi Bohra’: Senior Advocate Mukul Rohatgi
The final day of the hearings on the Sabarimala Reference was packed with rejoinder submissions made by various prominent names followed by the submissions made by the Amicus Curiae appointed by the Court. Senior Advocate Mukul Rohatgi representing the Dawoodi Bohra Community began his submission by questioning the 1986 writ petition of Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr. as it was filed by an unregistered body with no members, with Asgar Ali Engineer, the original petitioner in the 1986 writ, acting singularly on behalf of the body with no members. Further, he submitted that after Engineer's death, another individual carried forward the writ who also died later on leading to an inevitable abatement of the said writ. He submitted that for the past 75 years, there have been no instances of an excommunication being carried out and the only known instances of excommunication dates back to 1930-1940’s. He also vehemently refuted the presence of a nefarious authority which is allegedly hell bent on excommunicating its own people.
‘No question of hierarchy of rights within Articles 25 and 26’: Senior Advocate Gopal Subramaniam
Senior Advocate Gopal Subramaniam submitted a three-pronged submission which first dealt with the question of “whether Article 26 is capable of an independent fulfilling existence"', followed by his submission on “whether principal of plural grounding of reading Articles 14, 19, and 21 together would be applicable to the reading of Articles 25 and 26. The last prong of his submission dealt with the question on religion and religious denomination. In his submissions, he challenged the presence of any hierarchy of rights within the framework of the constitution with all fundamental rights being entitled to equal protection.
He submitted that the term ‘religion’ can be understood as something which originates from an established doctrine of faith, which is commonly understood as ‘Hinduism, Islam, Sikhism , Jainism and the like’ while on the other side ‘denomination’ can be understood when the very people belonging to the larger faith unite to ‘organise themselves into a distinct body or an institution’. He termed equating religious denomination at par with the entirety of religion erroneous. On the question of interplay within Articles 25 and 26, he submitted that despite the two provisions being interconnected they are equally capable to operate in ‘distinct constitutional spheres’ thereby not inviting any conflict and ultimately no further ‘question of harmonisation’.
Additionally, he also argued that the extent and degree of freedom enjoyed by an individual within the framework of Article 25(1) is one which is of a more personal and discretionary nature as an individual ‘ could be deeply religious one morning and slightly less the next’. However the nature of freedom under Article 26(1) is more orderly and nuanced as it is based ‘on a doctrine which is equally applicable to all people in that particular group’.
‘Essential Religious Practices test privileges certain practices over others’: Amicus Curiae K Parmeshwar
The last rung of the hearing was engaged by the Amicus Curiae Senior Advocate K Parmeshwar and Advocate Shivam Singh. In the submissions made by Parmeshwar, he pressed upon the application of other Part III rights to the matters concerning Articles 25 and 26. He also lauded the already existing safeguard employed by the Court by being cognisant of the person who is approaching the court, the Locus Standi of such a person and the cause of action which made such a person approach the court. He further submitted that any attempt to concretely define religion would either lead to a sweeping understanding of the same or an ‘overtly restrictive understanding of the same’.
On the issue of the test of Essential Religious Practices, Parmeshwar listed out burning criticisms of the test with the foremost being that it is not contained in the text of the Constitution and that ‘it tends to privilege certain practices over others’. He also drew a connection between Articles 25 and 21 as the act of extinguishing a religious practice of a person would also have a direct impact on the identity of such a person.
However, Justice Nagarathna was quick to defend the Essential Religious Practice as a tool to segregate a religious and a secular practice and merely because a court terms a certain practice as non-essential it is bereft of any constitutional safeguard.
Further during the course of his submissions he argued that the definitions ascribed to ‘religion’ and ‘denomination’ as per Oxford’s dictionary’s relied upon in the ruling in Shirur Mutt(1954) should not be given a ‘determinative’ value, but instead should be only treated as ‘indicative’ of what the term denomination might possibly constitute of. He submitted that there are ‘denominational practices’ which function without a concrete institutional structure, a formal organisation or even a formal name. Further he implored the Court to adopt an extensive understanding of the term denomination and not solely rely on the composition of worshippers constituting a denomination referencing examples of Matrubhuteshwar temple being declared as a Hindu temple by the courts despite the fact its worshippers came from different walks of faith.As the hearings on the Sabarimala Reference came to a conclusion with the final verdict being reserved, Dhawan voiced his dissatisfaction with the submissions advanced by the Amicus Curiae, pointing out that Parmeshwar’s submissions bore no relation with the submissions advanced by the parties on either sides thereby failing to deliver a meaningful submission whilst juxtaposing the arguments advanced by both the sides.
Following this, the Supreme Court reserved judgment.
