Knowledge Is Not Welcome From WhatsApp University: Justice Nagarathna Says During Sabarimala Hearing

During the 9-judge Bench reference, Senior Advocate Neeraj Kishan Kaul concluded his submissions by referencing an article by Shashi Tharoor. While Chief Justice Surya Kant reminded the counsel that personal opinions of eminent persons remain subjective, Kaul argued that "knowledge and wisdom" from any source, university, or country should be embraced.

Justice B.V. Nagarathna interjected with a sharp, witty remark, clarifying that such openness does not extend to the misinformation frequently associated with "WhatsApp University".

Kaul referred to the article written by Shashi Tharoor, to which Chief Justice Surya Kant remarked, "Mr Kaul, we respect all eminent persons, authors, jurists, scholars, but personal opinions are personal opinions."

To which Kaul replied, "But my lords there is never any harm in all humility, I submit. If knowledge and wisdom comes from any source, any country, any University, it should be welcomed."

Justice Nagarathna remarked, "But not from WhatsApp University."

Senior Advocate Neeraj Kishan Kaul, appearing for the Sayyedna (the head of the Dawoodi Bohra community), explained the historical background of the case. He noted that the matter reached the 9-judge Bench because of a challenge to a 1962 judgment (Sardar Syedna), where the Supreme Court had originally struck down a Maharashtra law that prohibited excommunication. He stated that a later writ petition in 1986 sought to reconsider that decision, leading a 5-judge Bench to refer the issue to the current larger Bench.

Kaul submitted that the core of the reference involved a delicate balancing of rights. He pointed out that the Court needed to decide how the right to life and dignity under Article 21 interacted with religious freedoms, and whether the concepts of "morality" and "constitutional morality" overlapped or remained distinct.

Justice Bagchi asked, "So the basic issue will be whether the banning of excommunication by a legislation under Article 25(2)(b) is valid or not, which in Syedna was held to be invalid. If we hold otherwise, it would mean reconsidering that judgment...Whether the matter comes by way of Article 32 or otherwise may not be very relevant. The core question would be whether the interpretation of Article 25(2)(b) in relation to Article 26(b) affects the validity of the legislation."

Kaul said, "Yes. That is why the reference order records that these questions are not to be decided on the individual facts of the case, but that questions three and four, and if not one and two, do have a bearing on the earlier judgment."

He noted that after the Supreme Court's 1962 decision in Sardar Syedna—which struck down the law against excommunication—a new writ petition was filed in 1986 challenging that very judgment. Kaul highlighted that his team had consistently questioned the maintainability of such a petition, arguing that one cannot simply file a fresh case to bypass a final judgment.

Justice B.V. Nagarathna, expressed deep concern over the legal process. She questioned how a writ petition under Article 32 could be used to challenge a settled 5-judge Bench decision decades later, noting that such a practice would destroy the finality of the law. She remarked that if any old judgment could be reopened this way, legal disputes would never truly end.

He submitted, "Therefore, individual Article 25 claims cannot override a denomination's lawful exercise of Article 26(b), unless one of the three heads is engaged. If individual Article 25 claims could routinely override Article 26(b), the essence of denominational autonomy would be hollowed out, defeating the Constitutional purpose behind Article 26...now straightaway to Devaru. Devaru does not say, as a principle of law, that Article 26(b) is subject to Article 25(2)(b)...It says that Article 26(b) is subject to Article 25(2)(b) only in the context of entry into temples. Otherwise, both rights are co-equal and of equal strength. In fact, it goes on to say that in all other religious matters, Article 26(b) should be given full play, except for the issue of entry into temples. In addition, it draws sustenance from Article 17 read with express words used in Article 25(2)(b) as to the opening of temples."

He specifically analyzed the landmark Devaru judgment to clarify its legal boundaries. Kaul submitted that Devaru did not establish a general rule that Article 26(b) is always subject to the State's power of social reform under Article 25(2)(b). Instead, he argued that the Court in Devaru limited this subordination strictly to the context of temple entry. In all other religious matters, he maintained that Article 26(b) must be given "full play."

Kaul further explained that the specific exception for temple entry was rooted in the historical necessity of Article 17 (Abolition of Untouchability). He argued that the two provisions are "co-equal" in strength, and the only reason Article 25(2)(b) prevailed in the Devaru case was to ensure that the mandate for opening temples was not rendered useless. Beyond this "limited context," he insisted that a denomination’s right to manage its own internal religious affairs remains a protected and fundamental cornerstone of the Constitution.

Justice Nagarathna remarked, "Even on touch stone of public order, morality and health, legislation is made under Article 25(2)(b). You cannot say that the right of a religious denomination will still prevail. Ultimately, it is subject to public order, morality and health. That could be the basis for a social reform or social welfare legislation."

Kaul replied, "I cannot put it better. I completely agree. In fact, during the Constituent Assembly debates were on and the original Article 20, which is now Article 26, the words public order, health and morality were not there...when the discussion came up, Dr Ambedkar said, yes, we are introducing them into  Article 26 and the State can regulate on these three grounds...the point that when the State regulates under Article 25(2)(b), it regualtes a right of the denomiantion, keeping in mind health, public order and morality. But it can't say that I will reform a religion or a denomination out of existence, as Syedna said, using something which is not a limitation or restriction provided under 26 at all. After all, there was a conscious departure...Why is 'Subject to other part..Part III' is not there in Article 26? In Article 26, wherever the Legislature or the makers of the Constitution wanted to provide, the regulation and any form they provided that...there is conscious reason why what is provided and where it is provided."

He then discussed Constitutional Morality. Justice Ahsanuddin Amanullah sought clarification on whether the term "morality"—listed as a restriction on religious freedom—could be interpreted to include "constitutional morality." Justice Amanullah said that while "morality" might be a stable concept, "constitutional morality" is dynamic and evolves with time. He questioned whether, even if this modern concept were read into Articles 25 and 26, the history of the Constituent Assembly debates would still lead to a fixed, specific understanding of religious rights.

Kaul responded with a strong warning against importing this "fluid" concept into the realm of faith. He argued that the framers of the Constitution intended constitutional morality to guide governance and statecraft, not to act as a restrictive filter for religious practices. Kaul contended that because constitutional morality is so broad—encompassing the Preamble and all fundamental rights—using it as a restriction would allow the State to override religious freedoms at will, effectively diluting the specific protections the framers meant to provide to denominations.

Kaul agreed with the Bench that while social views change, the legal protections for religion must remain grounded in the literal text of the Constitution. He maintained that using a "dynamic" concept like constitutional morality as a restriction would create legal uncertainty, as the boundaries of religious freedom would shift based on changing judicial interpretations rather than settled constitutional law.

Senior Advocate Mukul Rohatgi contended that the "morality" was never meant to create a restriction, because the moment it is an additional restriction via 'constitutional morality,' it will dilute the content of Articles 25 and 26. Therefore, constitutional morality has no place as a restriction in our Constitution."

Senior Advocate Gopal Subramanium argued that the judiciary possesses the authority to inquire into and determine the fundamental tenets of a faith.

Senior Advocate Rakesh Dwivedi emphasized that religion is inherently associational and existed long before the drafting of the Constitution. He argued that the framers recognized religious denominations not as creations of the State, but as vital entities that preserved the continuity of Indian civilization despite centuries of colonization and conflict.