Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench [Day 4]

Singhvi: apart from three conditions, article 26(b) is subject to law throwing open hindu religious institutions of public character-it will be subordinate

it may also be subject to first five words of article 25(2)(b) provided the legal or social welfare reform doesn't eviscerate or hollow out the religion out of existence or identity

J Nagarathna- it seems like devaru is rightly decided according to you

Singhvi: if you argue that article 26(b) will prevail over second part of article 25(2)(b), I atleast don't agree. If you argue that article 26(b) will prevail over first five words of article 25(2)(b), I don't agree.

A search through the Constituent Assembly Debates does not reveal any analytical discussion as to why the phrase “subject…to the other provisions of this Part” was inserted in Article 25 and omitted from Article 26, though, at some places of the Debate, there is reference by some speakers to the phrase “subject…to the other provisions of this Part”.

It has, however, been noted by the Supreme Court on more than one occasion that Article 26 cannot be subjected to Part III restrictions.

refers to TMA Pai -it was observed that the absence of the phrase 'other provisions of this part' in the opening sentence of article 26 would not mean that article 26 is over and above the other right conferred by part III- that means your lordship is giving no effect to the omission [of the words subject to other provisions in article 26]. The court referred to Dargah committee and Tilkayat that article 26 is subject to article 25 irrespective of words- this is a far reaching proposition, it rewrites the Constitution.

Astonishingly, the above conclusion by Khare, J, while being based supposedly on Durgah Committee and on Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, is rendered per se inapplicable and indeed per incurium for the simple reason that no such conclusion can be found in either of those two cited cases. These words of the supposedly concurring judgment therefore reflect an error patent on the face of it.

The proposition is completely obiter and cannot be treated as a judgment of 11 Judges for two simple reasons, namely; no issue of Articles 25 and 26 arose in this case since it involves the interpretation of Articles 29 and 30 and secondly, no other Judge out of the Bench of Eleven Judges, majority or concurring or dissenting, adopted this view viz. that Article 26 would somehow be subject to the other provisions of Part III.

Singhvi: on entry, I have argued in great detail second part of article 25(2)(b) will prevail over article 26(b). second, on the first words of article 25(2)(b), if you make a law for social reform which does not hollow out the religion, then that will also prevail over article 26(b).

If your lordships wants to go further and say other provisions of this part not put in article 26 is implict in article 26, then I would say its wrong. article 26 is consciously freed fetters of other provisions of this part which is the gamet of article 14-32.

J Nagarathna: then article 25(2)(b) has to be with the object of maintaining public order, morality and health

J Sundresh- consciously article 26 does not say subject to other part because it goes without saying that what is in article 25 will apply to article 26 also otherwise it doesn't make any sense. you will say it applies to a, b, c, d but not to religious denomination created by them.

Singhvi: Although this omission was sought to be remedied and the words “Subject to public order, morality and health” were duly added in Article 20 (now Article 26), the phrase “and other provisions of this Part” was consciously left out. Consequently, the unequivocal intention of the framers of the Constitution was to not to make Article 20 (now Article 26) subject to the other provisions of Part III.

J Sundresh- I will ask a small question-what is religious denomination? how is it construed? its a group of believers, right? will article 25 will apply on believers? then if you apply article 25(2) to them, how do you say it does not apply to a religious denomination afterall the denomination has right and existence because of the collective beliefs of those persons who gave protection and preservation. how do you apply the law? can you say the law applies to the members and not apply to them [denomination]

J Sundresh- condition is, you are an institution of public character, if you are the State will be able to do it.

Singhvi: on issue 3- "WHETHER THE RIGHTS OF RELIGIOUS DENOMINATION UNDER ARTICLE 26 OF THE CONSTITUTION OF INDIA ARE SUBJECT TO OTHER PROVISIONS OF PART III OF THE CONSTITUTION OF INDIA APART FROM PUBLIC ORDER, MORALITY AND HEALTH?"

It is evident from the language in the opening sentence of Article 26, in contrast to that in the opening sentence of Article 25(1), that Article 26 has not been made subject to the other provisions of Part III, unlike Article 25.

An analysis of the Constituent Assembly Debates would reveal that the framers of the Constitution had consciously and intentionally not made Article 26 subject to the other provisions of Part III.

refers to the draft articles 19 and 20.

On 7th December 1948 draft Article 20 (now Article 26) was moved for adoption. At the threshold, Dr. Ambedkar moved Amendment No. 614107 in the following terms:

“That in the beginning of Article 20, the words ‘Subject to public order, morality and health,’ be inserted"- Dr Ambedkar knew previous article said 'subject to other provisions' he chose not to put it here

Singhvi: this is not restrictly correct

summarising:

a. Denominations and even sections thereof, understood in the widest possible sense, are protected under Article 26.

b. Management of affairs of denominations or sections thereof cannot be diluted or deprived by legislature, which, however, can regulate administration of property associated with religion and religious practices.

c. in case of a conflict between an individual right under Article 25(1) and the right of a denomination under Article 26, the right of the denomination would prevail as Article 25(1) is subject to other provisions of Part III which includes Article 26.

d. Though laws made under Article 25(2)(b), facially appear to violate Article 26(b), harmonious construction is the only methodology available to give some meaning and scope both to Article (25)(2)(b) and Article 26(b).

e. Such harmony is arrived at by allowing Article 26(b) untrammelled supremacy regarding all other forms of religion and religious practices but by creating a carve out when a law under Article (25)(2)(b) will prevail if it seeks to mandate access or social reform in certain situations.

f. Even the latter carve out in favour of the law under Article (25)(2)(b) is subjected to further limitations imposed / imposable by Article 26(b) e.g. prohibitions qua access to the inner most sanctum sanctorum would still be protected under Article 26(b) notwithstanding a law to the contrary under Article (25)(2)(b).

g. A law as understood under Part III is an essential sine qua non even to begin to intrude upon or regulate upon such issues

h. Articles 14 and 15 would be tried to the utmost to be reconciled with Article 25 but in case of impossibility of such harmony, the former would prevail over the latter.

i. The protection of Article 26 is wider and stronger and cannot be tested on the anvil of Articles 14 and 15.

j. Article 25(2)(a) does not permit the State to regulate religious practices themselves, but only economic, commercial, or political activities that are associated with religious practices, as clarified by the Supreme Court in Shirur Mutt. The freedom to practice religion under Article 25(1) therefore remains protected except where such practices conflict with public order, health, or morality.

J Nagarathna- paragraph f is almost identical to Vaidyanathan's arguments

Singhvi: no, he says article 25(2)(b) has to be waived into article 26(b) even to the extent of entry

J Nagarathna: no no. article 25(2)(b) relates to social reform which is different from religious reform

Singhvi- it has two parts-one is social reform and another is entry.

J Nagarathna: it is only a matter of degree

Singhvi: there is substantive difference. a law will say you are authorised to enter whereas article 26(b) will say you can't enter. Infact, founding mothers insisted on this.

Singhvi: In Adi Saiva Sivachariyargal Nala Sangam v. State of T.N., broadening the limitations under Article 26 and once again pressing upon the harmony between the provisions of Part III, the Division Bench of the Hon’ble Supreme Court held that:- “ Besides, the freedom of religion being subject to the other provisions of Part III, undoubtedly, Articles 25 and 26 of the Constitution have to be harmoniously construed with the other provisions contained in Part III"

Singhvi: reads Ratilal judgment and devaru

It is noteworthy that in Sri Venkatramana the issue decided was whether the right of a religious denomination to manage its own affairs in matters of religion guaranteed under Article 26(b) is subject to, and can be controlled by a law protected by Article 25(2)(b) i.e. throwing open a Hindu public temple to all classes and sections of Hindus

a. This Hon’ble Court held that if Article 26(b) alone is applied then any provision of the Madras Temple Entry Authorisation Act throwing open access to all classes would be unconstitutional creating an apparent conflict between Article 26(b) and Article 25(2)(b)- this is where we differ from Vaidyanathan

b. All arguments as to why Article 26(b) should override Article 25(2)(b) were rejected. The principle of harmonious construction is pressed into service and it was held that while for all matters Article 26(b) will apply, regarding entry into a temple Article 25(2)(b) will prevail.

Singhvi: reads sardar syedna

J Nagarathna: in this case, the prevention of ex communication act was upheld it that means there can be ex-communication

Singhvi: ex communication by objective standard is considered as anti-social reform or welfare.

J Bagchi- reformist law was ex-communication is illegal, the SC set it aside as violative of article 25(1)

Singhvi- test is you are hollowing out the religion itself- on semantics, hollowing out can be an essential part of ex communication but mylords can correct it without going into whether its essential or not

The rights guaranteed under Articles 25 and 26 of the Constitution came up for consideration before the Court in several cases and the main principles underlying these provisions is that the protection of these Articles is not limited to matters of doctrine or belief but they also extend to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion.

Reading shirur mutt- “Under Article 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.

It should be noticed, however, that under Article 26(d), it is the fundamental right of a religious denomination or its representative to administer its properties in accordance with law; and the law, therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of right guaranteed under clause (d) of Article 26."

CJI: social welfare may be preferred but in the name of social welfare may not be preserved.

J Nagarathna- in the name of social welfare and reform, you can't all out the religion