Constitution Didn't Intend To Give Religious Denomination Higher Rights Than Believer : Darius Khambata In Sabarimala Reference

In the Sabarimala reference matter before the Supreme Court, Senior Advocate Darius J. Khambata argued that an interpretation giving primacy to Article 26(b) over Article 25(1) will annihilate religion, as it would enable denominational groups to trample upon the rights of individual believersHe is representing Goolrook Gupta, who is challenging the practice of preventing Zoroastrian women who married outside the community from entering Aghyaris. The petition was also tagged along with the Sabarimala reference, since similar constitutional questions arise in both matters.Yesterday, during the hearing, the 9-judge bench had raised questions about the practice, saying that it appeared to be gender discriminatory.One of the issues in the Sabarimala reference is the interplay between the right of a religious denomination to manage its own affairs under Article 26(b) and the right of the State to make laws on social reforms and throwing open the Hindu religious institutions of public character to all sections and classes protected in Article 25(2)(b).Many on the other side have argued that Article 26(b) will have primacy supremacy. This is because while the only limitation provided under the provision is that it is subject to 'public order, morality and health, whereas Article 25 is additionally subject to other provisions of Part III. Right of individual or collective religious freedoms sourced to Article 25(1)Khambata has argued that the source of religious freedoms for individuals and religious denominations is traced to Article 25(1), because it not only protects individual rights but also collective rights. He said that while religious denominations and their rights can exist without Article 26, the same can't be said when Article 25 is not there. Therefore, he described Article 25 as the repository of "ancient civilisational values of India of tolerance, peaceful coexistence and plurality"."My submission is that Article 25 is the source of the entirety of fundamental rights to freedom of religion, whether individual or collective."He stated that Article 26 is a manifestation of Article 25 meant to protect collective rights, and added: "Consider a submission where you only have Article 25 rights, and Article 26 was not in the Constitution at all, would it ever be argued that individuals can't form groups, collections or denominations and exercise the right collectively? Surely it would be within Article 25 right, but you take it the otherway round that only Article 26 and no Article 25, because if Article 26 is the source of all denominational rights, it should be a standalone [provision]. Can it be suggested that the denomination has no right to freely practice and propagate in religion?"He then stated that if it is read that the source of Article 26 is Article 25, then the other limitation in the latter that it is subject to other provisions of Part III would apply to Article 25 as well. But in any case, a balance has to be struck between the two provisions on a case-by-case basis."I am aware that Article 26 doesn't have that expression language [subject to other provisions of Part III] but it doesn't have that express language precisely because it is sourced in Article 25. It's compact, it's the same right of religion. It is not a different right of religion that the denomination can manage," Khambata averred.He added that interpreting Article 25 to restrict it to individual practice of religion would do great injustice to the provision.He remarked: "Denominational right ultimately is an individual's right. There is no separate entity that stands above an individual, called a 'religious denomination', that even where an individual doesn't have a right, the religious denomination does. There is no hierarchy."Justice Sundresh seemingly agreed to this proposition and stated that Article 26(b) is for a limited purpose, particularly for the denomination to manage its own affairs. Justice Nagarathna also agreed and added, "Religious denominations can survive without Article 26. The framers of the Constitution were conscious...of how religion was being practised in India through Mutts, and being conscious, they added Article 26."Responding to this, Khambata said that if Mutts were to propagate, it can also be sourced to Article 25(1), which protects the right to practice, profess and propagate religion.Justice Amanullah, however, said that it can't be put that simplistically because while a denomination can be a collection of individuals, it may also have additional unique rights. Khambata said that the religious denomination will have to prove that if it follows some unique practice or rights, it is a part of the doctrine of that religion.Equality is textually embedded in Article 25One of the other issues that has been most frequently argued is whether Article 25 is subject to the right to equality guaranteed by Articles 14, 15 and 17. Khambata offered a unique interpretation that since Article 25 uses the...

Constitution Didn't Intend To Give Religious Denomination Higher Rights Than Believer : Darius Khambata In Sabarimala Reference

Gursimran Kaur Bakshi

Article 26(b) is meant to protect the denomination from the State's interference, and can't be used by the group to violate an individual believer's rights, he argued.

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Constitution Didn't Intend To Give Religious Denomination Higher Rights Than Believer : Darius Khambata In Sabarimala Reference

Gursimran Kaur Bakshi

Article 26(b) is meant to protect the denomination from the State's interference, and can't be used by the group to violate an individual believer's rights, he argued.

This is a premium content Available exclusively to Our subscribers

INR 1099+GST

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This is a premium content
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