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

Singhvi: on harmonisation, if mylords can clarify the paragraph of sardar syeda.

J Sundresh: it is too dangerous for us to do so to read it in certain idea where to say that notwithstanding the social reform.

Singhvi: unlike Vaidyanathan, I am preserving the second part as well as the first part. core of the syedna judgment must be maintained but there are words available without saying that 9 judge has upheld essentionality

J Sundresh: when it comes to element of social welfare or reforms, that is for the government or the state and also for the court- to that extent, we can't trace it under morality or public order

Singhvi- it is my case that social reform or welfare must be allowed contrary to my learned friends and first 5 words must be given meaning

J Sundresh: we gave the example of hindu succession act- its a social reform

CJI: it would depend on case to case basis

J Bagchi- you are bringing that some tenets or practice will be essential or integral and some are non essential and directorial. there will be a degree of judicial evalution or essentionally when it tests any legislation article 25(2)(b) against a religious practice

Singhvi: mylords are right but answer is

J Bagchi: either you adopt vaidyanaith and say

Singhv: i am opposing. second part of article 25(2)(b) I am disagree.

J Bagchi- first part is very well taken that any religious practice is completely distinct from secular or economic associated but when it comes to [b], when reform based legislation is made, essentionality to show that religious has itself become defaced will be a relevant test

Singhvi: these creases the 9 judge bench should clean up; should not let essentionality to come in

J Sundresh- why did they use the word social welfare instead of public order, health and morality

Singhvi: certain practice even by objective standards which would not be upheld, though they were religious practice-best example is multiple marriages.

J Baghci: even sapinda marriage, it would be said to be a reform which is not changing the core tenets of core practises of religion. whether we use the word essential or integral or borrowing from constitutionalism, would you contest the word inalienable religious practices?

Singhvi: this is third synonym for essentionality

Singhvi: now on the first five words of article 25(2)(b)-easy to say its coloured by latter words but these are independent words. they are meant to allow social reforms- for ex-number of wives, some kind of personal law. best harmonisation can be done by saying you can;t use the first five words to dehors public [order] question is how does Sati gets abolished? sati gets abolished because of public order. you can't apply another standard of general kind but you can reform hindu religion.

I believe sardar syedna is a valid law: “In my view by the phrase “laws providing for social welfare and reform” it was not intended to enable the legislature to “reform” a religion out of existence or identity. … Just as the activities referred to in Article 25(2)(a) are obviously not of the essence of the religion, similarly the saving in Article 25(2)(b) is not intended to cover the basic essentials of the creed of a religion which is protected by Article 25(1)"

Singhvi: This addendum disagrees with the stand canvassed by Vaidynathan. CAD debates made sharp distinction between the restriction on article 25 as opposed to structure of present day article 26 which appears to be consciously subjected to few restriction- this is evident from the fact that article 20 which was the precursor of article 26, a specific amendment was moved and negatived on 7 dec 1948, Dr Ambedkar said in the beginining of article 20-words subject to public order, health by inserted.

Mr Ahmed moved amendment saying article 20 be renumbered as clause one and new clause be added- nothing in clause 1 shall affect the operation of any existing law or prevent the state from making any law for ensuring public order- this is a very important clue- this would have given the state the power. He also wanted the word public be added to morality and health.

According to me, public brings external objective test but since it was not added- its a more subjective test

J Sundresh: how do you explain the word public character?

Singhvi: a temple by law, antiquity, fame, generation, or whatever may have started private can become institution of public character.

Goswami judgment referred: If a temple is proved to have originated as a .public temple, nothing more is necessary to be proved to show that it is a public temple but if a temple is proved to have originated as a private temple or its origin is unknown or lost in antiquity then there must be proof to show that it is being used as a public temple. In such cases the true character of the particular temple is decided on the basis of various circumstances. In those cases the courts have to. address themselves to various questions such as :--

(1 ) Is the temple built in such imposing manner that it may prima facie appear to be a public temple?

(2) Are the members of the public entitled to worship in that temple as of right ?

(3 ) Are the temple expenses met from the contributions made by the public ?

(4) Whether the sevas and utsavas conducted in the temple are those usually conducted in public temples ?

Singhvi: refers to article 25(2)(b)- throwing open hindu religious institutions of public character-according to me, this is entirely on entry and access so the haromonisation I am doing is with article 26. by saying all entry and access issues would be covered by article 25(2)(b), and once entered it would be covered by article 26

Singhvi: (a) 25(2) is not a head of derogation in the same sense as heads provided in 25(1).

(b) 25(2) is drafted not as a prohibitory or restrictive clause but a clarificatory and enabling one to permit and enable the State to make a law dealing either with various ancillary aspects of religious practice and / or social welfare and reforms.

(c) Though, the powers under 25(2), under both clauses (a) and (b) are undoubtedly wide to enable legislation to deal with ancillary and subsidiary activities as aforesaid or social reforms, it cannot be read to reduce to a vanishing point the basic right under 25(1).

J Bagchi: we have to give some meaning to the word 'subject' under article 26.

J Nagarathna: article 25 is essentially with regard to all religions- no religion is superior to other-person entitled to conscience- truth is one but scholars interpret it differently

Singhvi: there could be cases that exercise by individuals of arrticle 25(1) rights conflict with articles 14, and some part of article 19 and if mylords find the conflict can't be reconciled-then primacy will have to be given to 'subject to' in article 25 but before that, it has to be harmonised.

Singhvi: It is further interesting to note that despite the existence of the phase “subject to … the other provisions of this Chapter” from as early as April 1947, and despite detailed discussion of all substantive aspects of freedom of religion over the next two years, no discussion can be found as to the reason for the insertion of the phrase “subject to … the other provisions of this Chapter” nor for the scope and amplitude of coverage of this phrase.

Consequentially, in view of the tabula rasa presented by the Constituent Assembly Debates on the rationale underlying use of this phrase, the reasoning given in the earlier part of this Section, as to how Article 25 must be harmonized with the other provisions of the Constitution and neither attenuated nor decimated, reflects the correct approach and ought to be adopted by this nine Judge Bench.

Noting the absence of the phrase “other provisions of this Part” in Article 26, the Supreme Court has in the several cases made every effort to harmonise Article 26 with any competing Fundamental Right in Part III, considering the factual situation before it.

Singhvi: other provision of this part can't be a catch all phrase to reduce article 25(1) to a vanishing point-you have to be harmonious.

The fact that the right under Article 25 is made subject to the other provisions of this part does not and obviously cannot mean that any individual exercise of right under any other provision of part-III can extinguish the Article 25 right completely.

Nor can it mean that the exercise of rights under the other parts of Part-III can significantly reduce and attenuate these rights. The individual exercising other rights cannot either extinguish or dilute the right of the collective rights provided in Article 25.

Consequently, the only way to correctly interpret the constitutional language is to apply Article 25 on the one hand and other provisions of Part III in another in a harmonious, reasonable, and balancing manner, while always remembering the anchor provided by the other three broad heads of derogation, namely health, public order, and morality.

Article 25 original draft on 13 December 1946 said "subject to law and public morality". But on 29 March 1947, sub-committee on fundamental rights added "compatible with public order, morality and health". On April 3, 1947, the word compatible goes because its nowhere used in the constitution.

Singhvi: (a) The derogations specified in Article 25(1) can, be effected only by “law” as defined in Article 13;

(b) Many speakers in the debates, including K.M. Munshi and Laxmi Maitra, articulated this facet and assumed “law” to be implicit in the structure of Article 25 (then Article 19 in the Constituent Assembly).

(c) Diverse judgements, and especially Shirur Mutt and Sardar Syedna, have treated the derogations to be part of the sovereign power of the State to regulate through law.

(d) Freedom to profess, practice and propagate religion was treated as a fundamental constitutional virtue and an interpretation which allows derogation only by “law” would alone be consistent with the high status accorded to this right both during the debates and textually.

(e) The word “law” would not unduly limit or fetter the discretion of the State nor attenuate its elbow room and flexibility to regulate, because law in Article 13 is defined very expansively and not in a limiting or circumscribed manner.

(f) To allow derogation in respect of as vital and significant a fundamental right as the right to religion, by ad-hoc and mere subjective executive instructions, orders, and directions, not having the trappings of either law or delegated legislation, would render susceptible such an important fundamental right to dangerous executive invasion.

(g) In the context of the aforesaid larger objectives and perspectives, even if a doubt existed (I submit it doesn't) as to this issue (which does not exist), constitutional courts and the 9-judge bench should adopt a teleological and purposive interpretation to sub-serve the object of strengthening the right of freedom of religion.