Constitution Didn't Intend To Give Religious Denomination Higher Rights Than Believer : Darius Khambata In Sabarimala Reference

In the Sabarimala reference matter before the Supreme Court, Senior Advocate Darius J. Khambata argued that an interpretation giving primacy to Article 26(b) over Article 25(1) will annihilate religion, as it would enable denominational groups to trample upon the rights of individual believers

He is representing Goolrook Gupta, who is challenging the practice of preventing Zoroastrian women who married outside the community from entering Aghyaris. The petition was also tagged along with the Sabarimala reference, since similar constitutional questions arise in both matters.

Yesterday, during the hearing, the 9-judge bench had raised questions about the practice, saying that it appeared to be gender discriminatory.

One of the issues in the Sabarimala reference is the interplay between the right of a religious denomination to manage its own affairs under Article 26(b) and the right of the State to make laws on social reforms and throwing open the Hindu religious institutions of public character to all sections and classes protected in Article 25(2)(b).

Many on the other side have argued that Article 26(b) will have primacy supremacy. This is because while the only limitation provided under the provision is that it is subject to 'public order, morality and health, whereas Article 25 is additionally subject to other provisions of Part III.  

Right of individual or collective religious freedoms sourced to Article 25(1)

Khambata has argued that the source of religious freedoms for individuals and religious denominations is traced to Article 25(1), because it not only protects individual rights but also collective rights.

He said that while religious denominations and their rights can exist without Article 26, the same can't be said when Article 25 is not there. Therefore, he described Article 25 as the repository of "ancient civilisational values of India of tolerance, peaceful coexistence and plurality".

"My submission is that Article 25 is the source of the entirety of fundamental rights to freedom of religion, whether individual or collective."

He stated that Article 26 is a manifestation of Article 25 meant to protect collective rights, and added:

"Consider a submission where you only have Article 25 rights, and Article 26 was not in the Constitution at all, would it ever be argued that individuals can't form groups, collections or denominations and exercise the right collectively? Surely it would be within Article 25 right, but you take it the otherway round that only Article 26 and no Article 25, because if Article 26 is the source of all denominational rights, it should be a standalone [provision]. Can it be suggested that the denomination has no right to freely practice and propagate in religion?"

He then stated that if it is read that the source of Article 26 is Article 25, then the other limitation in the latter that it is subject to other provisions of Part III would apply to Article 25 as well. But in any case, a balance has to be struck between the two provisions on a case-by-case basis.

"I am aware that Article 26 doesn't have that expression language [subject to other provisions of Part III] but it doesn't have that express language precisely because it is sourced in Article 25. It's compact, it's the same right of religion. It is not a different right of religion that the denomination can manage," Khambata averred.

He added that interpreting Article 25 to restrict it to individual practice of religion would do great injustice to the provision.

He remarked: "Denominational right ultimately is an individual's right. There is no separate entity that stands above an individual, called a 'religious denomination', that even where an individual doesn't have a right, the religious denomination does. There is no hierarchy."

Justice Sundresh seemingly agreed to this proposition and stated that Article 26(b) is for a limited purpose, particularly for the denomination to manage its own affairs. Justice Nagarathna also agreed and added, "Religious denominations can survive without Article 26. The framers of the Constitution were conscious...of how religion was being practised in India through Mutts, and being conscious, they added Article 26."

Responding to this, Khambata said that if Mutts were to propagate, it can also be sourced to Article 25(1), which protects the right to practice, profess and propagate religion.

Justice Amanullah, however, said that it can't be put that simplistically because while a denomination can be a collection of individuals, it may also have additional unique rights. 

Khambata said that the religious denomination will have to prove that if it follows some unique practice or rights, it is a part of the doctrine of that religion.

Equality is textually embedded in Article 25

One of the other issues that has been most frequently argued is whether Article 25 is subject to the right to equality guaranteed by Articles 14, 15 and 17. 

Khambata offered a unique interpretation that since Article 25 uses the words 'all persons are equally entitled," it indicates that equality is textually embedded under this provision.

Referring to the Solicitor General's argument that Article 25 does not talk about gender equality and that it only deals with equality between religions, Khambata said :

"Learned Solicitor said it has to be restricted. My submission is that it can be of various types. One can't restrict the categories. I can think of equality between individuals and individuals, gender equality, equality between religions, equality between religious denominations and sections, and equality within religious denominations and sections."

Justice Bagchi asked if this includes equality between individuals and denominations. He asked if this proposition is accepted, wouldn't that do violence to the provision of Article 25, which says subject to other provisions.

Khambata answered that this issue arises when both provisions are read separately. If both are read together, then that additional limitation in Article 25 would extend to Article 26 as well.

"Religion that is spoken about in Article 25(1) is the same religion that Article 26(b) protects. Otherwise, the argument would be Article 26 is standalone, it's an island which speaks of some higher right, and our Constitution decided to give the denomination a higher right than the group or individual."

He illustrated this by referring to Articles 21 and 22, asking whether, even in the absence of Article 22, Article 21 would not still protect a person against illegal arrest.

Referring to the judgments in RC Cooper, KS Puttaswamy etc, he argued that fundamental rights cannot be interpreted as isolated silos, and they have to be read together as a composite whole.

Article 26(b) is protection against states, can't be used by groups to dominate individual believers

He highlighted that Article 26(b) is intended to protect the autonomy of a religious denomination against interference by the State. It cannot be used as a tool by religious groups to impose their domination on individual believers.

Referring to the facts of his matter, he submitted that it was an instance where one Parsi trust unilaterally decided that Parsi women who marry outside the community are not entitled to enter Aghyaris. He contended that it was not a universal practice across the religion, and some groups were imposing such a practice. Giving primacy to Article 26(b) will embolden such exclusionary practices, where denominations claim arbitrary powers to infringe the rights of the believers.

The CJI expressed that he did not agree that Article 25 and Article 26 were in conflict.

"If there is a conflict between 25(1) and 26, then the question arises. If there is no conflict, then it does not matter. Very popularly, this word “harmonise” has been used. At least speaking for myself, I am not convinced there is a need for this harmonisation exercise here. These are not different kinds of rights or different kinds of principles," CJI said.

In response, the senior counsel said :

"My first argument is that Articles 25(1) and 26 should not be read as being in conflict. Article 26 flows out of Article 25(1). Assuming, however, that Your Lordships proceed on the basis of conflict, then in any case, this is perhaps the safest way.

Article 26(b), no doubt, is fundamentally a right of autonomy against State action. That remains unaffected. But Article 26(b) is not a right of domination. Please do not conflate autonomy with domination. Merely because there is a conflicting belief does not mean religious autonomy is affected.

That autonomy is essentially against the State. Therefore, sometimes we conflate religious autonomy with denominational control over individual members, or domination over them. That confusion should not arise. Article 26(b) is essentially protection against State action.

A right of exclusion against an individual member would still have to be established on the basis of religious doctrine. It does not arise merely because a denomination has a right to organise or manage its affairs in matters of religion.

That, therefore, is the fundamental or precise interest protected under Article 26(b), namely protection against State action.

On the other hand, what is the precise interest under Article 25(1)? There, I would submit that the time-tested doctrines of “integral” or “essential” religious practices, and in some cases “fundamental” religious practices, are useful instruments by which these rights can be balanced."

He concluded with his submission :

"I am going to end with one thought. Your Lordships are called upon to interpret a Constitution, not merely a statute. That interpretation will impact the lives of over a billion people, because religion is so important in our country to everyone.

Please keep in mind that constitutional silences are not the same as constitutional vacuums. So many matters, Your Lordships, without express language, have been decided. Starting with the collegium system under Article 124, the right to health, the right to privacy, judicial autonomy under Article 21, and the doctrine of separation of powers under Article 40. There is no express language. Nevertheless, Your Lordships have read meaning into those silences and given content to them.

So Articles 25(1) and 26 must continue to reflect what I started with: our ancient civilisational values of mutual respect, tolerance, peaceful coexistence, plurality of belief and practice, and religious autonomy.

This is really the ancient ethos of Hinduism. As I said, that is how my community has survived for 1,200 years. When one thinks about it, it is the most amazing thing. That essence and core is embodied in Article 25(1).

Now, to say that Article 25(1) has it, but Article 26(b) is not shackled by it, would really damage this architecture. So my submission is, that there should be no primacy or hierarchy where one trumps the other. Both have to be read together.

It is a daunting task for Your Lordships, and for any court, but it is a noble task. It is a task that has to be performed to maintain this balance.

Article 26(b) is part of a pattern of guarantees. It is not an item by itself, much less a fortress, and much less a provision to dominate any other functionary's right. Therefore, balancing, which is always the most difficult task of a court, is really the only answer. I think the courts in the past have also tried to balance these rights."

He said that the judgment in Venkataramana Devaru was a classic instance of balancing Article 25(2)(b) and Article 26(b), and that spirit must be followed.

Case : Goolrookh M Gupta v. Sam Chothia | SLP(c) 18889 of 2012

Senior Advocate Darius Khambata assisted by Ms. Shiraz Patodia, Mr. Ashish Singh, Ms. Nina Nariman, Ms. Divya Sharma, Ms. Juhi Chawla, Mr. Mayank Singhal and Mr. Adityaraj Patodia