Sabarimala Reference: Supreme Court 9-Judge Bench Reserves Verdict After 16 Days Hearing

After 16 days hearings, the Supreme Court today reserved its verdict in the Sabarimala reference.

The 9-judge bench today heard arguments on the interplay between Articles 25 and 26 of the Constitution and whether Article 26 is a standalone provision considering the absence of the words 'subject to other provisions of this part' which are present in Article 25. 

Yesterday, during an argument made by a lady advocate, Justice Nagarathna raised this issue that the nine-judge bench has not got enough assistance on what 'other provisions of this part' means.

She remarked: "Nobody has argued what the meaning of 'subject to other parts of Part III' is till today. There is no assistance on that."

The lady advocate had argued that all rights in Part III would be subject to Article 25. Many of the respondents' side have argued that the root of religious freedoms is traced in Article 25(1) and since it is subject to other Parts, the limitation would also be extended to Article 26, which guarantees religious denominational rights. Justice Nagarathna has, however, expressed reservations about this interpretation.

Yesterday, she said that the 'subject to other parts' also includes Articles 25(2) and 26 and questioned how such an interpretation would be given effect to, essentially hollowing out the religion. "Your side[respondents] are saying all Articles from 14-24 shall prevail over Article 25, forgetting the fact that Articles 25 and 26 are also a part of Part III. That is the whole object of this nine-judge bench."

'Subject to other parts' should be juxtaposed with similarly placed rights: Justice Nagarathna

Justice Nagarathna has repeatedly taken a stand that Article 14 would not be applicable to Article 25(1) because the former is claimed against a State. Similarly, she has said that Article 17 was adopted in the backdrop of caste-based discrimination in the Hindu religion, and it was never meant to include gender.

Therefore, disputing the applicability of Article 17 as opposed to Justice Chandrachud's opinion in the 2018 Sabarimala judgment, wherein he had relied on this provision to state that menstruation has been considered as a physical disability to entry the right to entry.

According to her view, she has said: "If you juxtapose Article 25 with Articles 14 to 24, the [latter] doesn't speak of religion. Discrimination on the basis of religion is proscribed, but the theme of those articles are not religion. Article 25 onwards upto Article 28 is religion, therefore, if you want to exercise your rights under Article 25(1), that is subject to Articles 26 to 28, which means Articles 26 to 28 will override Article 25(1)."

As per Justice Nagarathna, the underlying theme of equality is present in Article 25(2)(b) in the form of enabling power to the State to make laws on social welfare and reforms and throwing open the Hindu institutions of public character.

Agreeing to this interpretation, Senior Advocate Gopal Subramanium stated that if one looks carefully at the words such as 'managing the religious affairs,' 'religious practice' and 'matters and affairs of religion' used in Articles 26, 27 and 28, it would be easier to interpret 'subject to other provisions' in the context of these rights. 

Principles of arbitrariness, rationality have no place in determining one's faith: SG Mehta

Solicitor General Tushar Mehta, in the rejoinder submissions, followed a similar stance. He stated that Article 14 applies the principles of arbitrariness and intelligible differentia. He stated that no objective is achieved when the same is applied to an individual's religious faith. "Your lordships' scrutiny would not be the constitutional understanding of Article 14 or any other article, but from a point of view of the person who follows a religion and he has a belief system which is protected by the Constitution."

Subramanium made his arguments in this aspect from the perspective of judicial review. He said: "An irrational factor which borders on extreme irrelevance that is relevant for judicial review vis-a-vis Article 14. But in the scope of Articles 25 and 26, you may employ rationality for the purpose of logic or inquiry of determination, but test of rationality are more close to Article 14."

He meant that the area of rationality applied to Article 14 is very different from the sphere of one's personal freedom of religious rights under Article 25(1).

He countered the arguments made by the respondent that since denominational rights are also traced to Article 25(1) so should its limitation be extended to Article 26. He referred to three principles: first, an interpretation by which the fullness of the right is upheld is an interpretation you would prefer to an interpretation that denuades or diminishes the interpretation of that right. Second, if the words of the Constitution are clear, there is no scope for applying the theory of implied limitation when the intention to manifest is expressed in the article and lastly, the nature of individual freedom under Article 25(1) is not the same as denominational freedom under Article 26.

Based on this, Subramanium said that once a person subscribes to a denomination, he has to follow certain tenets. "There, the expression establishing and maintaining institutions is not simply in the context of temple, mosque or church. It is more, and that which goes inside the institution which is maintained under Article 26. Articles 28 to 29 uses certain words, they use the words religion, religious practice, matters and affairs of religion, they also use the word religious instructions, all these would be within the purview of a denomination."

Justice Sundresh said an individual's right to freedom is as good as a denominational right, but this logic advocated by Subramanium may apply in cases where the individual questions the denominational rights. Subramanium responded that once an individual becomes a member of the denomination, he has to trace his rights vis-à-vis the denomination under Article 26. And if there is a legal injury caused to the individual due to the denomination, his remedy is to file a suit.

Senior Advocate CS Vaidyanathan disputed Justice Nagarathna's interpretation and pointed out that there could be a problem if Article 25(1) is subject to other rights in the same chapter of Part III. Nevertheless, he too adopted the stand that Articles 14 and 15 would not be applicable as they are not horizontal rights.

He said that in exercise of Article 25(1), a person may be subjected to Article 19(2), even though it doesn't relate to religion. If he has spoken about something which concerns the national security or public order of the State. "Although Article 19(2) doesn't speak of religion as such, Article 25(1) will be subject to it."

Similarly, Senior Advocate Abhishek Manu Singhvi submitted in rejoinder that Article 25(1) may be subjected to other similarly placed rights. "It is not like several other rights of Part III are less important for example, Article 14 is a vital so are the dynamic rights in Article 19. There are several other rights in Part III which are extremely important and vital. However, its importance and role in society don't necessarily mean a preexisting right which the Constitution is merely recognising. Even within Article 25-28, large chunks are given rights, not preexisting rights." 

Senior Advocate Gopal Shankarnarayan approached this issue differently and asked the Court to consider whether Article 25 itself is a horizontal right(can be claimed against private parties. He stated that since Article 25 says it's subject to other parts, including Article 26, which is a denominational right. Alternatively, he suggested that the interpretation becomes easier if Article 25 is not a horizontal right because then it can be claimed against the State only and can be through an Article 32 petition.

When Justice Nagarathna asked if an individual can challenge a denominational right guaranteed under Article 26, Shankarnarayan said it can't, which is also reflective of the fact that Article 25 is not a horizontal right.

Impact on Article 25(1) on other rights must be seen: Senior Advocate Rakesh Dwivedi

Answering the query of Justice Nagarathna, Senior Advocate Rakesh Dwivedi submitted that 'subject to other provision' in Article 25(1) must be seen from the perspective of all those rights which it has an impact on. He stated that the term automatically doesn't imply that we impose all provisions of Part III on Article 25(1).

"Mylords have said, look at what substantially follows...When we come to Article 25(1), it says all persons are equally entitled to freedom. It's the equality, so when it says subject to, one has to trace out those provisions which necessarily have an impact. For example, Article 17 is an article of equality, it prohibits untouchability, its an inclusive provision. Because of the seriousness of exclusion, it makes it an offence, a prohibition coupled with offence, therefore it has an impact on equality and has to be subject to Article 17. Likewise, no denomination despite the constitutional exemption, can practice untouchability."

Similarly, because of the nature of Article 23, no religious denomination can practice begging or forced labour. But he said that Article 13 can't apply because religious denomination is not a State within the meaning given, and therefore, rights claimed against the State, such as Articles 14 and 15 can't also apply.

No straightjacket formula to exclude or include application of rights in Part III: Amicus

A middle path was taken by Senior Advocate and amicus K Parmeshwar when he said that the Court can't exclude or include the application of Part III rights on the basis that it has horizontal or vertical application, or political or social rights etc.

He said the Courts can face unique cases where they will have to apply other articles in Part III, depending on the facts of the case, and the Court can very well say a certain right has limited play or application, but it can't permanently exclude the application of certain rights. He said, for instance, in Female Genital Mutiliation, the Courts will have to apply Articles 14 and 21 in order to protect the women's right to bodily integrity.

"If mylords in a nine-judge combination is to say that Articles 14, 19 and 21 have no application at all, it freezes the law. "

He adopted the approach of balancing the rights with the competing rights: "Mylords have all arrows in your favour to balance the application of other fundamental rights to Articles 25 and 16. But my respectful submission is please doesn't exclude the application of fundamental rights because we don't know what judicial circumstances would come where your lordships may have to employ one of these rights."

He added: "Build in a safeguard like your lordship said we will look at who is coming, what is the locus. That can be one safeguard. Matters of pure denominational conflict like what rituals is to be used, there is no question of 14, 19. Go for a suit. Even control of an institution by two sets of denominations, two sets of believers, may not be within judicial review. Third, succession to religious offices. If my lords build in these safeguards, I think it's in the interest of constitutional interpretation that Part III must be in full play. How mylords tailor that is a part of the balancing exercise."The 

Sabarimala reference before a nine-judge bench has concluded after 16 days of hearing. The bench is headed by CJI Surya Kant, which comprises 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.