Sabarimala Reference | Supreme Court Debates Essential Religious Practice Test, Denominational Rights vs State Reform Power

What came out from an obiter dictum of the Supreme Court in the Durgah Committee judgment (1961) continues to pose an overwhelming task before a nine-judge bench hearing the Sabarimala reference.

While the Supreme Court in the Shirur Mutt judgment (1954) made a distinction between secular and religious practice, the Dargah Committee's judgment said that only practices which are "essential and integral" should be given protection under Article 26. Now, this has come to be known as the Essential Religious Practice(ERP) test.

Today, Justice Ahsanuddin Amanuallah and Justice BV Nagarathna of the nine-judge bench orally made certain remarks on this. This was in the context of arguments made by Senior Advocate V Giri, stating that the individual rights to worship under Article 25(1)(a) have to be exercised in consonance with the essential characteristics and essential practices of the religion protected under Article 26.

To this, Justice Nagarathna stated that an activity is either secular or religious. But Justice Amanullah responded that even then, the question comes back to a full circle because the Court will still need to have some prima facie determination, and therefore, it will have to define the standards of what is a religious practice. 

He said: "Then we come back to the moot question, there has to be some sort of even a threshold, prima facie or tentative, to be gone into whether it's a religious practice. We come back to the same question: to what extent?"

However, Justice Nagarathna was of the view that once the Court determine a practice stricto senso as a secular practice, all other practices naturally come within the scope of religious practice. 

"Once you determine a practice stricto senso as a secular practice, all others become religious practice. Where is the question of any authority or questioning whether it is an essential religious practice or not. Yes, the line of inquiry could be whether a particular practice is a secular practice, which the Court can determine. Then anything else would be a religious practice," he opined.

But Justice Amanullah then said that if that is the determination the Court will have to make as to whether a practice is secular or religious, it has to be on a case-by-case basis. That is, it can't lay down a common standard.

Senior Advocate Gopal Sankaranarayanan has also argued for doing away with the ERP test. "Is there a pressing need for the essential practice test, my answer is no. It's very clear on its own term. Partly, as Justice Amanullah pointed out that in many cases, it will come down to the facts of the case. There may be a very unique practice. Rather than putting down broad-based labels, or essential practices test, the phrase is very clear in Articles 25 and 26 on managing affairs in matters of religion."

When Justice Nagarathna said that the test should not be there at all, Shankarnarayan agreed and said, "it's not necessary" since the Constitution is very clear on the terms it has used.

Interpretation of Articles 25 and 26

Sankaranarayanan also argued on the best way to interpret Articles 25 and 26. The prominent debate here is whether Article 26(b) is subject to Article 25(2)(b) in the sense that any social reform or throwing open a Hindu temple of public character can be applied to a religious denomination. While Article 25(1) uses the term "subject to other provisions" apart from limitations imposed by public order, morality and health, Article 26 doesn't say "subject to other provisions".

Sankaranarayanan said that in order to understand the interplay, the Courts will have to see if it's horizontal(applying to other citizens) or vertical(applying only against the State) in its application. 

"My view is, when the words 'other provisions of this part' is used in Article 25, the other provisions which are being referred to are the horizontal provisions of Part III. Therefore, the other provisions that it will be subjected to are Articles 15(2), 17, 23 and 24. That is what I believe is the interpretation of this part...We are saying, look Article 26 is not meant to be controlled by Article 25(2)(a). I doesn't do violence with respect to entry."

When Justice Nagarathna asked if 'subject to other provision' under Article 25 includes Article 26, Sankaranarayanan answered in the affirmative.

He added: "Article 26 is not controlled at all by Article 25. Article 26 standalone, then the first question that would be asked is Article 25(2)(b) talks about entry of all sections, how is it then that denomination can stand up and say I will exclude Dalits. A denomination can never say that because the 'morality' referred at the top(beginning of Art 26) is the morality that arises from the Constitution is the what the Constitution proscribes is clearly immoral. A religious denomination, if it attempts even remotedly, it is immediately controllable by the law that is made or by the State using its executive powers to control, saying that morality aspect is being offended because Articles 17, 23 and 24 provides protection to those communities and groups who have been oppressed, and this has led to creating a constitutional offence."

However, Shankarnarayan took a stand that Article 25(2)(b) is only referrable to classes and sections of Hindus and effectuates Article 17 declaration. He said: "In my submission and in my mind, it is only referable to Article 17 communities and nobody else." In other words, Article 25(2)(b) law can be used to open temples to only untouchables, and not to remove other barriers.

Justice Nagarathna seemingly agreed and said that it should not include gender.

When Justice Bagchi said that this means a Vishnuvaites can't be excluded from entry to a Shivaite temple, Sankaranarayanan said they can if they claim denominational rights. However, Justice Kumar remarked that it will divide societies.

Sankaranarayanan maintained his argument. He said: "If, as a religious denomination, I say I am entitled, and please don't look at it with the idea of keeping society together. That is not our task, our task is to test constitutional principles. What I am saying is, if the religious denomination identified, for example, Aurobindo, they get together and say sorry if you dont' ascribe to ABCD, I am not going to allow you entry. I don't see a problem with that. It arises from Article 26. Religious denomination in managing its affairs, in doing everything that Article 26 affords it, is on a slightly higher pedestal and necessarily so, because "subject to other parts" is not there specifically in Article 26."

On a similar but different footing, Senior Advocate J Sai Deepak took the Court through the constitutional history of Articles 25 and 26. He argued that the existing Article 25(2) was meant to be a proviso to Article 25(1) and therefore restricted in its application. He added that it was never meant to affect Article 26 in any manner. 

"If Article 26 would not have been there, what would have happened? It would have still been part of Article 25(1), except that they decided to pull it out of Article 25(1) and give it a separate character for one good reason, because Part III can apply to Article 25, but it can't apply to Article 26. It is conspicuous in the absence of the language itself. Therefore to ensure that collective rights or denominational rights are unfettered by the limitation of Article 25(1), the bundle of rights under Article 25(1) was plugged out and carved out as Article 26."

He was also of the view that the Court can't entertain writ petitions as the enabling powers under Article 25(2) are to be exercised by the State, which doesn't include the judiciary. Therefore, he meant that no judicial review lies. However, CJI didn't agree with this argument.

CJI Kant said: "If the State, in the name of social welfare, prohibits a religious practice, who will examine? The power of judicial review, there is no need to attack on that power so much. We understand that limitations are there, but to say that there is no power at all, it may also be a very difficult proposition."

Senior Advocate Gopal Subramanium took a completely different stand and argued that Article 26 is necessarily subject to Article 25(2).

He said: "I take the position that Article 26 is necessarily subject to articles 25(2)(a)&(b). That is the only way to read. Article 26 is not a standalone Article which can survive without reference to Articles 25(2)(a) and (b). So a denominational temple can be subjected to a social reform law, a denominational temple can certainly be subjected to a law by which gates are open for all classes of Hindus."

When Justice Nagarathna asked if both provisions can be harmonised, Subaramanium answered that they can be.

She said: " Whether it can be harmonised? Otherwise, if you keep Article 25(2)(b) it can't come anywhere near Article 26(b), otherwise it will affect the denominational temples, and then, it in a way divides the people."

Subramanium said: "The reason why Article 25(2)(b) is couched in that way is actually to give effect to the right of religious freedom and worship to individuals of excluded classes...So Article 25(2)(b) is in furtherance of Article 25(1) in spirit, that is, those who could not exercise religious freedoms to access temples were not granted access."

He also maintained that the interpretation of the Shirur Mutt judgment refers to some course-correction.

Subramanium will continue his arguments today.

A nine-judge bench continued hearing the Sabarimalaa reference, where issues concerning other religious freedoms have also been raised. Several issues on the interplay between Articles 25 and 26 and the doctrine of essential religious practice were raised. 

The bench comprising Chief Justice of India Surya Kant, Justice BV Nagarathna, Justice MM Sundresh, Justice Ahsanuddin Amanullah, Justice Aravind Kumar, Justice Augustine George Masih, Justice Prasanna B Varale, Justice R Mahadevan and Justice Joymalya Bagchi.