‘Restriction of one fundamental right cannot be read as restriction of another’: Senior Advocate Guru Krishna Kumar
Guru argued that a restriction found in one fundamental right could not be read as a restriction on another fundamental right. He referred to the decision in Sakal Papers (1961) – there, the government had passed a regulation on the number of pages a newspaper could print based upon the price it paid to the government. While newspapers had contended this to be a violation of their Article 19(1)(a) right, the government had traced its power to Article 19(1)(g) (which is subject to ‘public interest’ under Article 19(6)). The Court had noted that Article 19(1)(a) rights could only be subject to Article 19(2) and not 19(6). “I am invoking the same approach and principle,” he noted.
Guru also noted that the holding in Devaru had been misunderstood. While most later Courts had simply taken Devaru’s holding to mean that Article 26(b) was subject to Article 25(2)(b), there was more to it. On the facts, the Court had affirmed the High Court’s ruling which had granted rights to the denomination, by virtue of which, it could exclude others. He noted that its two conclusions – that Articles 25 and 26 were to be harmoniously read, and that 26(b) was subject to 25(2)(b) – were contradictory. “My lords, there has to be some kind of clarification on what Devaru stands for,” he stated.
‘Founding fathers did not contemplate ‘morality’ as constitutional morality’: Senior Advocate Arvind Datar
Datar re-picked the thread on constitutional morality, referring to Ambedkar and Z.H. Lari’s Constituent Assembly speeches to argue that the “founding fathers could never have contemplated morality to be constitutional morality.” Referring to the schema of Article 25(1), he noted that first there was a legislative limitation – ‘public order, morality and health’ – and then a constitution limitation – ‘subject to other provisions of Part III’. Thus, ‘morality’ was what the legislature understood to be ‘moral’. By reading constitutional morality into ‘morality’, the constitutional restriction was being extended into the legislative restriction, he argued.
Datar highlighted that the word ‘morality’ is used in 66 statutes – 9 legislated pre-Independence, and 57 post-Independence. For instance, the Patents Act, 1970 prohibited grant of patent that would be ‘contrary to law or morality’, and the Succession Act notes that one cannot make a bequest ‘contrary to morality’. These, he noted, have been used in the context of societal morality.
He also highlighted that there had been a sudden spurt of judgements using the term even though it was “nebulous”. “You can’t locate it anywhere,” he said, “Privacy can go to [Article 21], manifest arbitrariness can go to [Article 14]...but [constitutional] morality is a completely nebulous term.”
‘Essentiality core issue when it comes to Islam’: Senior Advocate M.R. Shamshad
Shamshad appeared in a specific case where a petition was filed to allow Muslim women to enter into a mosque and offer prayers. That petition, filed by a person named Yasmeen Zubair Peerzada, had claimed that rights of Muslim women under Articles 14, 15, 19 and 25 are violated. It had sought that Muslim women be permitted to stand in the first row, and be permitted to stand in the same line. One prayer seeking issuance of direction “in the nature of mandamus permitting Islamic women to enter through the main door, have an Islamic right to visual and auditory access to mussalla (sanctuary).” Shamshad pointed out that from the scheme of the petition, it appeared that it was being argued that inside the mosque, there is something such as a sanctum sanctorum.
Contending the plea, Shamshad first noted that there was no such thing as a sanctum sanctorum when it came to mosques and “nobody can insist” if the religion itself does not believe so. He further explained that across religious denominations, there was no prohibition on Muslim women entering mosques, especially to offer prayers.
“Prophet Muhammad himself said that ‘Don’t stop women coming to mosque’,” he stated, noting that subsequent hadith had recorded this narration as authentic. He explained that one hadith noted that women were free to preferably offer namaaz at home. Muslim men were obligated to offer prayer as part of a congregation, only possible in a mosque. But if a woman wished to pray from the mosque, there was no prohibition within the religion on that.
Shamshad also raised contention with the ERP doctrine, by placing it in the context of Islamic faith. He explained that Islam is a highly codified religion, wherein beyond the Holy Qur'an, many hadiths and later scholarly interpretations exist. There were further complexities – some were mandatory measures to be performed, some were mandatory measures prohibited. Further, there were cases when scholars had noted despite language of commandment, a practice may not be essential. However, if a matter were to come to Court that certain practices should not be permitted because something is non-essential, or a practice is to be enforced since it is essential, the Court cannot just look at the “translation of one book and take a decision.”
Shamshad noted that in a series of cases on ERP, courts had attempted to determine the essentiality of a practice by looking at interpretations of Islamic texts and had arrived at incorrect findings.
“Essentiality is the core issue here which is under challenge, My Lord,” he noted.
The Review Petitioners will continue their arguments on Tuesday, April 28, 2026.
