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

J Nagarathna: After all persons enter, there can't be discrimination when it comes to serving of food that only a particular caste people should sit in one room and another case people should sit in another room. that is also forbidden within article 25(2)(b)

Singhvi: there could be extreme examples where the denomination says having entered, which we can't stop, our denominational rules to stand in separate part 1000 yards and use a telescope to see the deity- that will not be justiciable under article 26

reads TMA Pai judgment

J Sundresh: there are two situations-where the person can approach without legislation and when a legislation has been brought and has been challenged-to what extent can be go in social reform legislation?

Singhvi: article 25(2)(b)- has to be limited to throwing open hindu religious institutions of public character. 2. the word entry has to be governed by article 25(2)(b) to the exclusion of article 26- after you enter for almost everything, article 26 will take over- I say I have right to so worship in sanctum- article 26 will takeover and the religious belief doesn't permit, I can't. Or whatever I have said will not apply to private temples.

Singhvi: e. Once a belief or practice is found factually established in what is accepted as a religion, then any further judicial application of a supposed essentiality test would amount to engrafting into Article 25, an additional restriction/derogation on what has already been found to constitute religion, apart and distinct from the four derogations already listed after much care and caution by our founding fathers and mothers.

f. Any hypothetical, absurd or reprehensible practice would frequently be excluded at the threshold by not finding the collectivity concerned to be a religion at all;

g. Other similarly reprehensible practices would fall foul of the four derogations already listed in Article 25;

h. However, if a seemingly or allegedly absurd or reprehensible practice does not fall foul of (f) or (g) above, then it cannot be struck down by courts, if it is otherwise found to exist as a custom, belief, and practice of the religion concerned.

J Sundresh: let us test this with the amendment brought by them under section 6 of the hindu succession act- this came from sapinda principle. now under which provision the amendment would come where the concept of coparcenary has been removed and the sapinda principle has be let go by to give equal rights to women-will it be traced under article 25(2)(b)

J Nagarathna: article 15(3) also

J Sundresh: if article 25 is for the state to make law, what extent the court can go into?

Singhvi: a. Practices and beliefs of a religious community must be judged by courts purely applying a subjective test and not any external, objective test

b. Courts cannot and should not re-write practices and tenets of a religion or “rationalize religion” (per Malhotra J., dissenting, in the original Sabarimala judgment, now under review);

c. Factually established religion and religious practices ought not to be subjected to judicial interpretation (. the Ram Janambhumi Judgment)

d. These principles harmonise and effectuate the primacy given to “Fraternity” in our constitutional Preamble-least used, least applied-concept of religious must cross-fertilise with faternity

Singhvi: it becomes a license to permit external adjudicator or judges to decide the essential or non essential components of religion, mylords then will not where to stop

Lastly, a legitimate query may arise as to whether the Court’s review is so minimal and so self-denying that even an absurd practice proclaimed by a religion (e.g. eating only elephant meat or eating only human meat) should be non-reviewable because it is part of the bona fide belief of a person who claims to be an adherent of the religion.

This seemingly extreme proposition does not in any manner derogate from what has been stated herein for the following reasons:

a. Firstly, if the belief (an extreme one in the above example) does not form part of the collective institutional and denominational belief of a group or sect belonging to a religion, it will be rejected not because of an objective external standard but because it does not constitute religion at all since it does not exist in the collective of a group but is asserted only by a few maverick and eccentric individuals who claim to be adherents of a religion.

b. Alternatively, it would be hit by the three stipulated textual derogations, viz., in the above example, indeed all three i.e., public order, morality, and health.

c. However, notwithstanding the above, if there is in fact hypothetically a religion whose collectivity genuinely believes in and can trace back its lineage to the factual and genuine existence of such practices, then the Courts, having found that such a religion does in fact exist, cannot set aside such practices on personal or subjective judicial notions of abhorrent behaviour or impose external societal norms.

They would, however, be fully entitled to examine whether such practices would fall under the three above-stated derogable heads and accordingly uphold them or strike them down on that basis.

Conversely, if we now take an example of what might well be an abhorrent practice by normal average and external standards but is genuinely believed to be a core part of a known and established religion, then the application of Article 25 in its full platitude becomes clear.

This example comes from the significant Jain sect of Digambars, who, ex hypothesi, are called sky clad, who, as the latter words’ literal translation suggests are obliged to be sky clad. There is no doubt that nudity is abhorrent to normal canons of civilised behaviour in most societies. Yet, since Digambar Jain practices, including nude existence and nude movement in public, are undeniably accepted as a core part of a well-known religion, it would not be liable to be struck down under Article 25-this would have been abolished because nudity is proscribed but its nobody's case that mahaveer, this whole thing will be abolished

J Nagarathna: that is why its not a constitutional morality but public morality which has to find it abhorrent

inghvi: In light of the foregoing discussion repudiating the essential versus non-essential tests, Shirur Mutt and Narayana Deekshitulu qua Article 25(2)(a) may be interpreted and understood by the present Nine Judge Bench in the following manner:- a. The State can make laws regulating “economic financial political or other secular activity…. associated with religious practice.”

b. This does not mean that the State is permitted to intrude in what is admittedly considered by the individual or part of the religious group or religious denomination to be religion, religious beliefs, or religious activities.

c. Though mischaracterised by case law starting from and following after Durgah Committee misinterpreted Shirur Mutt, this is not the same as saying that laws can regulate non-essential religious activity.

d. In view of the error of the essential versus non-essential classification, this Bench should clarify that it means that what the law is regulating under Article 25(2)(a) is not religion at all, and not a non-essential religious activity.

e. The regulation is limited to economic, financial, political, or other secular activity which will inevitably arise in connection with or in association with a religious activity since the latter can never operate in vacuum or in the abstract.

f. This approach would harmonize the true spirit of Shirur Mutt and yet not do violence to the core part of the constitutional text in Article 25 in general and Article 25(2) in particular

The idea of an enquiry into the essentiality of a religious practice is anathema to Article 25(1). It is only if a religious practice is contrary to public order, morality, health, or the Part III rights of any person, that it may be interfered with, even though it may be considered to be essential to that religion- essential, four test can be applied. if not to be then, non-essential

If, however, a practice is not offensive to public order, morality, health or the Part III rights of any person, and is considered a part of religion by its adherents, then the State does not have the power to restrict or regulate it on the ground that the same is not an essential part of the religion.

J Nagarathna: on the other hand, it is like saying because it is an essential religious practice, even if its again public order, morality and health it is still protected

Singhvi:you have to divide and categorise religion

Singhvi: Once the above tests are satisfied, the freedom qua a belief or practice is protected under Article 25 or 26, as the case may be. No outside authority has any right to say that these are not parts of religion inter alia because they are not essential, and it is not open to any secular authority of the State to restrict or prohibit them in any manner.

Singhvi: bus example may be religious, but how you purchase a bus- you do all kind of accounting, malpratices, or you overdo it- take a mercedes limousine to start taking Sabaramila devotees- those mylords understand the difference

CJI: we can lay down only general principles

Singhvi- you can't say this religious practice is excessive, extravagant- those are not in the domain

It is a common misconception to derive essentiality of a religious practice by reference to economic, commercial, or political activities or activities of a secular character. These activities are mentioned in case laws, especially Shirur Mutt, Ratilal Gandhi (supra), etc., not for the purpose of determining the essentiality of religious practices, but as a contrast to them.

In other words, these activities are cited precisely to illustrate what does not constitute a religious practice. In other words, Shirur Mutt draws a contrast between religious practices and non-religious practices.

vastly difference from saying the same case supports only essential religious practices within the fold of religious practices itself. The case law does not undertake any such bifurcation within the domain of religious practices into essential and non-essential practices. Rather, the judgments contrast two distinct and non-overlapping spheres: one comprising religious practices, and the other comprising non-religious or secular activities.

Examples of the latter would include maintaining ledger accounts for the administration of a temple or filing income-tax returns in the prescribed statutory form for a religious institution. At no point do these judgments divide religious practices themselves into essential and non-essential categories.

The only enquiry required to be undertaken before the freedom qua a belief or practice is accorded protection under Article 25 or 26 is:-

a. is the belief genuinely and conscientiously held by an individual as part of a group or denomination? and

b. is it so held as being part of the profession or practice of a religion?

J Bagchi: activity has both flavour of religious and secular aspect, how will the court define that activity? how do we see essential from that angle?

Singhvi: that is the unfortunate heading mylords have to face sometimes

J Bagchi: in shirur mutt, i have to purchase sugar to make offerings to god is a secular practice but in what manner- whether it will be religious? J Mukherjee uses the word 'integral' but if let's say sugar is purchased for chartiable activity of that religious institution- it has religious import but predominantly secular. let us say the religious denomination have bus purchased to carrying devotees, then?

J Nagarathna: whether it is associated with religious practice? without it can the religious go on? but its a secular activity, the state can regulate

Singhvi: religious v non religious is a better word, the test has to be subjective objective approach. in either event, please eschew the essentionality test. the examples given by J Bagchi, it has to be case to case basis. for ex- ghee-should i purchase it, what quality will please deity? in the purchase of ghee, if you are going to highest seller and you are pocketing the difference and state makes a law then its must be secular.

Singhvi: test is yes by subjective belief you can examine whether its part of religion or not

SG Mehta: in Shirur Mutt, the learned AG rejected argument that only essential part would be saved- they were discussing religious v non-religious- not religious v something else- this was negatived by 7 judge but picked up by dargah committee to say only essential

Singhvi: reads what could said in Shirur Mutt: “The contention formulated in such broad terms cannot, we think, be supported. In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself….

What Article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality but regulation of activities which are economic, commercial or political in their character though they are associated with religious practices.”

J Nagarathna: what is a secular activity which can be regulated by state to that extent but ERP test my be discarded as per you?

Singhvi: religion or not-court can see but whether essential or not is a problematic path which court can't walk- inquiry is limited by looking from the prism of religious adherent not from objective prism of judge

J Nagarathna: another way of looking at it is anything which does not come within the scope of article 25(2)(a) has to be protected