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The Supreme Court hearing the Sabarimala reference, engaged in a detailed examination of the relationship between Article 25 (freedom of conscience and free profession, practice, and propagation of religion) and Article 26 (freedom to manage religious affairs) of the Constitution on Tuesday, April 7. The hearing saw significant exchanges between the nine-judge Constitution Bench and the Solicitor General Tushar Mehta on religious freedoms, equality, and the scope of judicial review.
The Bench, led by Chief Justice of India Surya Kant and comprising Justices BV Nagarathna, MM Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi, made it clear that it would confine itself to broader constitutional questions rather than the merits of the 2018 Sabarimala judgement.
The case arises out of the Sabarimala review and is tagged with a batch of matters raising similar constitutional questions, including petitions concerning the entry of Muslim women into mosques and dargahs, the rights of Parsi women married to non-Parsis to enter Fire Temples (Agyaris), and the challenge to the practice of female genital mutilation (FGM) in the Dawoodi Bohra community, along with the Court’s examination of precedents such as the Shirur Mutt case and the Dargah Committee case on essential religious practices.
In the Shirur Mutt case, a precedent was also laid down that religious denominations have autonomy in matters of religion and that what constitutes an “essential religious practice” is primarily to be determined with reference to the tenets of that religion.
In the Dargah Committee case, the Court introduced a more interventionist approach by holding that only those practices deemed essential and integral to a religion are constitutionally protected, thereby allowing judicial scrutiny to exclude superstitious or non-essential practices.
‘No fundamental right exists in isolation’
Opening his submissions, Tushar Mehta argued that fundamental rights must be interpreted harmoniously and not in isolation.
“Article 26, in the present jurisprudence, says that no Part III is an island and has to be understood in the context of other articles,” he submitted while reading Article 26(b), which guarantees the right of religious denominations “to manage its own affairs in matters of religion.”
He emphasised that the Court must adopt a purposive interpretation. “My argument is neither is superior; it has to be a purposive interpretation,” he said.
A key plank of the Solicitor General’s argument was that Article 26(b) cannot be treated as absolute and must be read subject to reformative provisions under Article 25(2)(b).
Article 26(b) guarantees religious denominations the right to manage their own affairs in matters of religion, while Article 25(2)(b) empowers the State to enact laws for social reform. This includes opening Hindu religious institutions to all classes and sections of Hindus.
He submitted that the right of religious groups to manage their affairs under Article 26(b) cannot override the State’s power under Article 25(2)(b) to bring in social reform, such as ensuring temple entry for all sections. Further, he argued that a harmonious interpretation would allow both provisions to coexist.
The Solicitor General described constitutional morality as “a political doctrine,” suggesting caution in its application. At the same time, he reiterated the need for a balanced reading of fundamental rights, arguing that courts must ensure that neither religious freedom nor reformative provisions are rendered ineffective.
Scope of Article 26 in Sabarimala context
Justice BV Nagarathna repeatedly questioned the applicability of Article 26 to the Sabarimala dispute.
Referring to arguments that the temple is a religious denomination, she observed, “In the context of the Sabarimala controversy, how is Article 26 relevant?” She further noted, “The temple is open to all Hindus.”
Distinguishing between the two provisions, she remarked, “Worship is a manifestation and Article 25 is related to conscience and therefore related, but Article 26 is totally different.”
Justice MM Sundresh, however, indicated that the Bench need not enter into the specifics of the Sabarimala dispute at this stage.
The Solicitor General strongly objected to the reasoning in the 2018 Sabarimala judgement.
He submitted, “It is my case that it is wrongly decided and deserves to be declared a wrong law,” and expressed “a very strong objection” to the view that the restriction on women amounted to untouchability under Article 17.
He clarified that the restriction was based on age and the unique nature of the Sabarimala temple, not menstruation.
Debate on “sections of Hindus” under Article 25(2)(b)
The Bench also examined the meaning of the phrase “sections of Hindus” under Article 25(2)(b), which deals with providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
The Solicitor General submitted that such classification could be occupation-based, stating that “those Dalits doing manual scavenging are not permitted—that is why all sections,” indicating the historical caste context of the provision.
Justice Ahsanuddin Amanullah queried whether the provision would include gender, to which the Solicitor General responded that it was intended for caste-based situations prevailing at the time.
Justice Nagarathna on Article 17 and gender
Earlier in the day, the hearing also saw a significant exchange on the applicability of Article 17 (abolition of untouchability) to gender-based exclusion.
Justice Nagarathna observed, “Article 17 can't apply for three days, and on the fourth day, there is no untouchability,” questioning the logic of extending the concept to menstrual exclusion.
Addressing broader themes, the Solicitor General argued against applying Western frameworks to Indian society. He submitted, “India is not that patriarchal or gender stereotyped that the West understands,” adding that “India has always treated women equally… at a higher pedestal.”
He further stated, “We are the only society (where) we worship ladies… so let us not introduce those concepts of patriarchy or gender stereotypes.”
The Solicitor General also addressed the phrase “all persons are equally entitled” under Article 25. He argued that the phrase was introduced to ensure religious harmony and prevent dominance by any one religion, stating, “It is a manifestation of secularism; it has nothing to do with gender.” He submitted that gender equality is addressed separately under Articles 14 and 15.
The hearing will resume on Wednesday, April 8.