Sabarimala Reference | Correct Test Is If Religious Belief Is Bona Fide, Not If It's Essential : Rajeev Dhavan To Supreme Court

In the Sabarimala Reference hearing yesterday, Senior Advocate Rajeev Dhavan argued that the doctrine of essential religious practice is dangerous because Courts are asked to decide whether a religious practice is essential or not at the very threshold. 

He clarified that he is not against judicial review of religious freedoms. Instead, he suggested that the correct test under Articles 25 and 26 should be whether a belief is bona fide or not, instead of whether it's essential. He cited the Bijoe Emmanuel v. State of Kerala (1986), where the Court protected the children following Jehovah's Witnesses who refused to sing the National Anthem.

Dhavan made this argument before a nine-judge bench hearing the Sabarimala reference, which raises larger issues having an impact on other religious faiths.

At the outset, he argued that the Supreme Court was incorrect when it held that the ban on the entry of menstruating women to the Sabarimala temple was not an essential religious practice. According to him, the correct test was the one followed by Justice Indu Malhotra(sole dissenter) that whether a belief was "genuinely" and "conscientiously" held by the person claiming it, as held in Emmanuel.

Dhavan cited an English case R. (Williamson) v Secretary of State for Education and Employment, which held that the limited inquiry that the Court can go into is into the genuineness of the claimant's professed belief.

Justice Nagarathna asked if the Court couldn't go into the rationality of a belief in judicial review, to which Dhavan answered in the affirmative.

On the interpretation of Articles 25 and 26

Dhavan submitted that the right of freedom of conscience under Article 25(1) is wide enough to encompass almost everything. Justice Nagarathna asked: "Are you saying conscience is something larger than religion?"

Justice Amanullah also asked for a clarification on how to interpret religious and conscience. He said: "You said freedom of religion and conscience has a very wide proposition. Are you hinting that, as judges or as constitutional courts, religion and conscience can't be equated? Religion may be very personal to me, but when I have to judge, I have to rise above the religious consciousness to a level where I have to balance it with constitutional provisions and see the larger picture emerging from that."

Dhavan responded that the Court will have to interpret consciousness ultimately. 

Additionally, Senior Advocate argued that the words "nothing in this article" used in Article 25(2) are meant to ensure that the individual rights protected under Article 25(1) don't come in the way of social reform.

"What does 'nothing in this article' mean. It means everything. It means individual rights can't stand in the way of social reforms. You can't come up and say that under Article 25(1), I have this right, and this reform is not acceptable to me. Otherwise, the entire provision of Article 25(2) would be negatived."

Whereas, for Article 26, Dhavan stated that it's the most essential institutional right without which no religion can survive.

"What will we do without Article 26? All religions will be doomed... It is the most important right for the sustenance of religion across time...If you don't give autonomy to manage religious institutions, all these institutions will fail. That is the important part of the word manage because if it's a religious institution, you have to manage all religious autonomy."

On this, Justice Bagchi asked: "Will you agree that managing religious affairs under article 26(b) is congruent not on the individual or institution but on activity with the words freely, practice, propagate religion?"

Dhavan responded that he would not subject Article 26's application to Article 25. He explained that Article 26 may take colour from Article 25, but it doesn't necessarily require it to be subjected to Article 25 because the former is only subjected to "public order, morality and health".

To this, Justice Bagchi questioned: "If your arguments are accepted, then the subordination of individuals with the words 'subject to other provisions' as well as a more definitive with legislative enabling powers of Article 25(2)(b) would be rendered nugatory by the individual professing the same right through the institution under Article 26(b)."

He also asked that if the legislature brings a statutory reform under Article 25(2)(b) and if Article 26 is held as a separate inassaliable island, wouldn't that negate social reforms.

To this, Dhavan responded that the solution is to integrate both provisions and to interpret them using the doctrine of proportionality. 

But he said that he doesn't agree with the law laid down in Sri Venkataramana Devaruand Others vs The State Of Mysore And Others(1958) judgment to the extent that it held Article 26(b) will be subject to Article 25(2)(b).   

"When we say subject to, it's a very powerful statement, and here I distance myself from Devaru. The judgment made Article 26 subject to Article 25. It is a system of subordination, and I believe it was not intended. Devaru said both are of equal importance."

Additionally, Dhavan pointed out that he doesn't agree with Senior Advocate Dr Abhishek Manu Singhvi's arguments that Article 25(2)(b) will regulate entry into the temple, but after the person's entry, Article 26(b) will prevail. He said that such a "spatial" distinction doesn't work.

He pointed out that while Article 25 uses the words 'subject to other provisions', Article 26 doesn't contain that. 

But clarified that he needs some balancing to be done. In this aspect, he said that Devaru is a good law that the entry to inner sanctum is preserved for the priest.

"I disagree with Singhvi's spatial argument separating right of entry. Justice Varale also asked. You go to a temple not just to the precinct, once you entry you are there to pray. The distinction is not a spatial one. This has to be adjusted, not entry simplicter. The question put there was of choice; you can go to some other temple. That is not the point. I want to go to this temple; this is the most important temple. I have the right to go to any part of the temple, and as possible as Vaidyanathan's argument, not to the inner sanctum. That part of Devaru judgment is probably correct."

Further, Dhavan also criticised the Sabarimala judgment for propounding an addition to the test of what constitutes a religious denomination. He said that the majority added that it should be shown that there is "exclusive distinctiveness" with respect to the particular Lord Ayyappa temple to claim denominational protection under Article 26.

"They said[the judgment in Sabarimala] that look, there are so many Ayyappa temples, how are you distinct? The super-added fifth test that you are exclusively distinctive was the mistake. Sabarimala must be overruled in this aspect."

Superstitious belief must be protected: Dhavan

On superstitious belief, he differed from the arguments made so far and said that it is to be protected. Dhavan, however, added a caveat that the "external manifestation" of such superstitious belief in the form of, for example, witchcraft, can't be protected. 

"The reason why superstition has to be recognised is because all religions will disappear if you subject them to logic of scientific discovery. The test of scientific discovery is given by Karl Popper's verifiability. Can you verify if god exists? Can you verify if you have his diksha? Therefore, superstitious belief has to be accepted across the board."

It may be recalled that in one of the hearings, the Supreme Court orally expressed that Courts cannot be barred from striking down practises or 'superstition' if they violate public order, morality or health.

On whether the term morality used in Articles 25 and 26 means constitutional morality, Dhavan referred to Justice Chandrachud's opinion in the Madarsa case and remarked that the judge himself had held that concepts derived from basic structure, such as democracy and federalism, are undefined concepts and therefore incapable of application to strike down a statute.

He argued that morality may mean something normatively abhorrent to civilised society, as was Justice Nariman's approach in Sabarimala judgment is the correct approach.

"Sabarimala introduced it[constitutional morality] as a limitation. If it's not a limitation, then it's fine. It's a value which we must imbibe. So if we limit it to whether constitutional morality is a limitation or not, our task becomes easier."

Lastly, Dhavan submitted that he doesn't dispute the locus of women because they are partly the derivatives enforcing a constitutional duty. He explained that the cause of action arises when there is a constitutional or statutory duty that needs to be enforced, and that can also be done by persons of another faith in certain cases. He gave examples where the declaration of untouchability or equality needs to be enforced.

"A person of one religion has no locus to question the bonafide beliefs of another's unless the bonafide claim is patently false. Here the inquiry is not an exegesis into the religious faith but on the bonafide of the petition. However, a person of another faith has the right to defend their fundamental rights or of others which may be impinged upon."

But then Justice Nagarathna questioned if a non-believer can question the rationality of someone's religious practice. "Can, at the instance of a non-believer, the rationality of a religious practice be gone into when he's not an aggrieved person?," she asked.

Dhavan responded: "Cause of action will be in the believer, but suppose there is an Indian Lawyers Association that says we are a derivative and puts that claim, they will have locus."