‘A man-made law denied entry to women for forty years’: Senior Advocate Sanjay Hegde
Senior Advocate Sanjay Hegde appeared for Dr. Hamid Dabolkar and Ms. Jadhav, both of whom were members of the Maharashtra Andhshraddha Nirmulan Samiti – a rationalist organisation.
“There are several accretions to religion or which claim to be a religious dissent but have been exploited and therefore should in no manner receive the protective shield of religion,” Hegde argued, pressing upon the fact that as opposed to the general conception of all rationalists being atheists, the rationalists staunchly believe in all things including religion to undergo the ‘filter of reason’.
On the question of interpretation of Articles 25 and 26, he proposed that the provisions granted an individual the autonomy in a theoretical sense “to wake up as a Hindu, become a Muslim at lunch and Christian in the evening.” On the front of collective rights enshrined under Article 26, he submitted that “people who sat together and worshipped in the same way may form a denomination” pressing that denominational rights are only a collective and that a denomination does not necessarily constitute a ‘juristic entity’. He placed reliance upon the constitutional protection mandated under Articles 25 and 26 to belief and practice subject to certain conditions whilst upholding religious autonomy in matters that are strictly religious. However, Hegde’s submission pertaining to the individual’s autonomy of waking up as a Hindu and becoming a Muslim by lunch in a theoretical sense was termed as a proposition which would lead to absurdity by Justice Ahsanuddin Amanullah
On the question of the rights enjoyed by a denomination, he pressed that a denomination or collective is composed of individuals and the former enjoys only such rights that are also “derivatively enjoyed by the individuals.” He further submitted that if a community’s right to discriminate is given precedence over the State’s right to prevent discrimination, it would lead to incongruity.
Hegde quoted constitutional provisions which were a direct embodiment of the concept of rationality such as the wording of ‘Liberty of Thought’ coming foremost in the wording of the Preamble and the fundamental duty to develop scientific temper along with other provisions. He further submitted that Article 25(2)(b) which grants the State the right to “throw open the Hindu Temples to all classes of people” was a rationalist provision out and out .
He critically questioned the validity of a man-made law compelling women to stay outside an institution for nearly forty years when instead a restriction could have been put in place on the women to not visit the temple during the days of their menstruation phase.
Hegde argued that the protection of practices extend only to the Essential Religious Practices and mere religious accretions under Article 26 as “one man’s superstition is another man’s faith”.
‘Constitution envisages reform of Hinduism’: Senior Advocate Menaka Guruswamy
The latter half of Tuesday’s hearing was dominated by Senior Advocate Menaka Guruswamy who was representing the deceased Swami Agnivesh, a Vedic scholar and Indian social activist,who had filed an intervention application in the current matter. She opened her submission by pointing out that exclusions came in a plethora of forms or ways.
She submitted that the Constitution envisages ‘reform of Hinduism’ and termed India as a ‘classical welfare state’. She pointed out that Articles 15(2), 15(3), 15(4) and 17, directly encapsulate the idea of reform. Further in her submissions, she listed two ways of numerically enhancing faith, with one being ‘propagation’ and the other being ‘emancipation’.
Upon the question of interpretation of Article 25 (1), she submitted that the same is a“truncated right of religion”, unlike the unfettered right laid down in countries like Germany. She further pressed that the intent of the drafters of the Constitution is lucidly made out as a “pre-eminence to the right of free conscience is given”. Guruswamy also placed reliance on the decision in Viju Prasad Sharma v. State of Assam (2015) , pressing for a harmonious construction of Articles 25 and 26, which related to the appointment of priests in the Kamakhya temple wherein the Court had ruled that Articles 25(2)(a) and 26(d) need to be read harmoniously.
She further underscored on the deliberate usage of the term ‘manage’ and not ‘control’ under Article 26, which needed to be harmoniously interpreted with Article 25 for removing the possibility of one eclipsing the right enshrined in the other. She submitted that the “degree of autonomy attributed to the term ‘manage’ is way lesser than the one attributed to ‘control’”.
Nearing the final leg of her submissions, she challenged the validity of Rule 3 of the Kerala Temple Entry Rules which placed a complete ban on the entry of women. She further drew a parallel with other similarly barred groups such as ‘people of unsound mind’ and termed the ban on the entry of women as both ‘insulting and stigmatising’.
‘Public morality could be prejudices of the society at large’: Senior Advocate Shadan Farasat
Appearing for two professors, Senior Advocate Shadan Farasat started his submission on the question of morality . He argued that the present question on the interpretation of morality is not just a question of constitutional morality but also popular morality. He stressed on the concept of public morality being inclusive of constitutional values by giving an illustration that if religion permits the establishment of sexual relations with children who have attained puberty both the constitutional and public morality would strike such a practice at its very root.
He also submitted that “at any given point of time public morality could be prejudices of the society at large”. He quoted a survey which published that a whopping sixty percent of the survey takers do not agree with an intercaste marriage. The verity of the survey cited by Farsat was immediately questioned by CJI Surya Kant.
In his submission, he stressed on the need for a departure from the Essential Religious Practice doctrine as it eclipses the rights enshrined under Article 25(1). He instead proposed a reliance on the doctrine of Proportionality which would “first bring in the balance followed by weighing it against the countervailing Fundamental Rights”. He further submitted that Articles 17, 23 and 24 – the prohibitions against untouchability, forced labour and employment of children in hazardous industries – would always prevail over Article 25(1).
On the interpretation of ‘Section of Hindus’, Farasat put forth that the word ‘section’ should be construed in a distinctive manner from the term ‘class’ and the wording of Article 25 uses the former term ‘sections’. Premising on the distinction of the terms, he submitted that if ‘women’ are not interpreted to be included within the meaning of the term ‘sections’, then the term would become an embodiment of discrimination.
As the hearings for the day were nearing an end, advocates submitted that Article 25 made an explicitly choiced usage of the term ‘all persons’, further dwelling upon the meaning of ‘person’ laid down in Section 3(42) of the General Clauses Act, with the right of religion being guaranteed to both an individual and a religious denomination, which is in stark contrast with the concept of religious practices which only refers to customs within religions.
It was stressed that Article 25 acts like a ‘motherboard’ of all rights ranging from Articles 25 to 28. The applicability of the Essential Religious Practice test, as a straight jacket formula was also contested.
