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 NagarathnaJustice 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 MehtaSolicitor 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...

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

Gursimran Kaur Bakshi

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

Gursimran Kaur Bakshi

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