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

Singhvi: mylords have four derogations [public order, morality, health, and other section of this part] by the framers, and if essentiality test is added, there will be five derogation

Evidently, the words ‘essential’ or ‘integral’ are not to be found in Article 25. There is, therefore, no qualification or condition for the nature or significance of the religious practice which is free to be professed, practiced and propagated by all persons.

Thus, all persons have a fundamental right to profess, practice, and propagate all kinds of religious practices, essential or otherwise.

To superimpose or carve out a narrower sub-set of religion as essential practices of religion is therefore untenable.

J Nagarathna: what purpose the test was propounded to say that is protected and nothing else?

Singhvi: slightly lose language used in Dargah which was picked up and taken as doctrine. what they mean is we are entitled to decide whether its religion or not.

Singhvi: refers to Ram Janmabhoomi case: “We must firmly reject any attempt to lead the Court to interpret religious doctrine in an absolute and extreme form and question the faith of worshippers. Nothing would be as destructive of the values underlying Article 25 of the Constitution.”

Singhvi: . The Supreme Court in Shirur Mutt further went on to state that “if the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion"

Singhvi: The beliefs and practices of the community have to be judged by the subjective belief of the community, and the Court is bound to accept the belief of the community and it is not for the Court to sit in judgment

J Nagarathna: but we must add it is a religion essentially- relationship between man and god. commonality in practice and belief may be there but in regards to what? secular activity

Singhvi: this is a discussion on religion. it is a relationship between man and god except when you go into the special areas of hinduism whether the Charvaka followers would be considered article 25 religious adherence is a question mylords need not to decide

(a) Religion, though incapable of precise definition, must involve a cohesive commonality of beliefs and practices for a community of persons;

(b) Their beliefs, practices and customs can be reviewed, if at all, where absolutely necessary, only by applying the subjective test of the beliefs of the community itself and only to the extent as to whether the belief or practice is in fact a part of that religion;

(c) It cannot be reviewed or tested by external, supposedly objective tests imposed by society or by judges in an adjudicatory matrix;

(d) A large volume of rituals, ceremonial practices and other seemingly procedural practices would nevertheless be entitled to the full protection of Article 25, so long as they are held to be part of the religion concerned;

(e) Since Article 25 protects the common beliefs and practices of a community, it is not open to an individual member of that community, in the purported assertion of that individual’s supposed constitutional right, to dilute or destroy the Article 25 rights of the entire community.

Singhvi: The logical sequitur of the observations of the Supreme Court, that religion albeit in a limited sense has its basis in a system of beliefs or doctrines, is that religion is an institutionalized belief shared by a group of people and that every individualistic belief of a person vis-à-vis the system of beliefs or doctrines shared by that group of people, would not be protected under Article 25 of the Constitution

Singhvi: refers to Sardar Syedna -"…It is noteworthy that the right guaranteed by Article 25 is an individual right, as distinguished from the right of an organised body like a religious denomination or any section thereof, dealt with by Article 26. Hence, every member of the community has the right, so long as he does not in any way interfere with the corresponding rights of others, to profess, practice and propagate his religion, and everyone is guaranteed his freedom of conscience"

Singhvi: refers to TMA Pai.

While Article 25 clearly vests in an individual the right to profess, practice and propagate religion, such individual rights cannot be allowed to extend to an area where it intrudes upon the mass of individual rights of all other adherents of that religion or denomination.

Singhvi: From the aforesaid jurisprudence, it is evident that there must be commonality in thought and worship to constitute religion. The common faith of the group/sect/community, in that they follow common religious tenets and there is a basic cord which connects them, would necessarily mean that the group/sect/denomination shares a common set of beliefs and practices.