Sabarimala Reference | Nine-judge Constitution Bench reserves judgment

ON THURSDAY, a nine-judge Constitution Bench of the Supreme Court led by Chief Justice of India Surya Kant concluded sixteen days of hearings in the Sabarimala Reference and reserved judgment. On Wednesday and Thursday, the last two days of hearings, Respondents, Review Petitioners and the Union government put forward a plethora of submissions. 

‘Protect religion, but acknowledge it can also be impediment for social justice’: Prof. G. Mohan Gopal

On Tuesday, Dr. G. Mohan Gopal, representing an intervener Sree Narayana Manava Dharmam Trust, commenced his submissions by bringing the Court’s attention to the question of the “demand for social justice” within the very spheres of  religious communities. He argued that the right of people within a community to usher reforms is also as an act protected by the constructions of Articles 25 and 26 . Gopal in his submissions termed the Sabarimala Reference as not just any other case but a deep reflection on the conceptuality of religion itself. He made reference to a document which was submitted by Dr. B.R. Ambedkar as a proposal for the right to religion which in its Clause 14 talked about the liberty of conscience which ought to be guaranteed by the State. 

He further submitted that faith in god should not be substituted with faith in clergy. He expanded that by the virtue of faith no individual can be compelled to become ‘ a member of the religious association which is inclusive of not being compelled to follow religious instructions. 

He pressed upon the need to ‘protect religion’ whilst acknowledging that religion could be an impediment for ‘social justice’ highlighting the need for regulation of the same. 

Gopal submitted that individuals are not ‘subsumed by religion but are instead consumed by religion’. He highlighted the vastness of religion by noting how the framework of religion followed by individuals in India adheres to the conceptual framework of ‘authotheism’, wherein the act of “lighting a lamp in one’s hut” is adequate for calling it a religion for that particular person. He also stated that the decision to attribute sacredness to something lies at the complete discretion of the individual.

He cautioned the Court regarding the perils of accepting the arguments made by the other side as it would lead to ’any group claiming to be a  religious denomination in this country at their own will inevitably making it possible for such a community to supersede Article 15 and Part III of the constitution. He urged the Court to not allow the faith in god which emanates from an individual’s conscience to be defeated by faith in clergy. 

‘Article 26 does not confer denominations plenary authority over personal religious choices’: Senior Advocate Rakesh Khanna

Senior Advocate Rakesh Khanna argued that a secular state  is not expected to interfere in religious matters surpassing the power enshrined on it as part of the constitutional framework. He submitted that the power given to religious denominations to formulate their own norms in order to regulate their affairs pertaining to religion  is not a concrete absolute power. 

On the interplay between Articles 25 and 26, he submitted that ‘a provision of the constitutional instrument cannot be read in isolation’ and the two provisions “are not merely neighbours as they represent individual and collective rights respectively”. In his submissions he pressed that both Article 25 and 26 merge to pave the way for an overarching right guaranteeing freedom of religion, belief and practice.  He argued that Article 25 serves as “a constitutional gateway” which the person professing the common religion faith  may, by a natural exercise of their individual rights or practice  and propagate, organize themselves into a religious collective or institution through which the person professing a common religious faith may, by a natural exercise of their individual rights and to practice and propagate, organise themselves into a religious collective or institution. 

Khanna argued that while Article 26(b) protected the autonomy of a religious denomination from an unwarranted state intervention “it does not confer upon the denomination a plenary authority over the body, integrity, conscious and personal religious choices of the individual members who constitute it”.