Religion Is A Historical Reality, Not A Gift Of Constitution: Senior Advocate Rakesh Dwivedi Argues For Slow & Light Touch Of Judicial Review

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.

Dwivedi cautioned that while the State has the power to "throw open" temples to all classes under Article 25(2)(b), this is a specific constitutional remedy for the historical exclusion of Scheduled Castes (untouchables) and does not grant the State a general mandate for "religious reform."

He argued that "classes and sections" refers to groups with historical disabilities (like those notified under Articles 341 and 342) rather than being a broad tool to dismantle denominational rules.

Supporting this view, Justice B.V. Nagarathna remarked that "throwing open" implies access for worship but does not necessarily translate to a right to interfere in the internal management or sacred affairs of a temple.

Dwivedi argued that religion cannot be created in isolation; it is defined by the coming together of individuals into a collective or "associational" form. He noted that the Constitution did not "gift" rights to religions but merely recognized their pre-existing role.

He described basic religions as the source from which religious denominations flow like streams, all being protected under the constitutional framework of Articles 25 and 26.

Unlike the "clash of civilizations" seen in Europe (Catholics vs. Protestants) or during Islamic invasions, Dwivedi highlighted that Indian religious evolution was historically characterized by intellectual debate, such as the famous discourse between Adi Shankaracharya and Mandana Misra.

Senior Advocate Rakesh Dwivedi said, "There are two things: One, that religion is associational by its very nature. One man alone, living like a Robinson Crusoe islander, cannot create a religion. And what we know is that when Lord Buddha attained enlightenment... So, when Article 25(1) talks of religion, the lodestar is 'religion.'...Conscience, profess, practice, and propagate religion. This Constitution was not being made in a vacuum; there already existed religions. Explanation II, in fact, mentions some of the religions which I will be addressing as 'basic religions.' So, religious denominations will be allowed like streams flowing out of the basic religion. But the religions existed, and these are the religions which the framers had in mind. It is with respect to those religions. I am not saying that new religions cannot be born—some tribals in Jharkhand, etc., are claiming there is a 'Sarna' religion; they worship hills, trees, and so on, and they wanted to be recognized. The State of Jharkhand has recognized it, but the Central Government has not yet recognized it. So, new religions may come up."

"But as of the date of the Constitution, there were religions, and those religions existed in an associational form. There was a time in the 16th century when state power was emerging. When it was asking for separation from religion, religion was controlling the states, especially in Rome. In India, also, we have seen that many regimes used to declare a state religion. Like King Ashoka, who declared Buddhism as a state religion, and everything used to follow that. The moment the regime changed, they would recognize the religion according to their choice", he added.

He then said, "And they experienced this with a massive amount of bloodshed. There had been blood in the struggle between Catholics and Protestants in Europe; millions died in that battle to establish supremacy or their own existence. We also know how crusades against Islam were launched by Christianity, and we also know how, in the name of jihad, Islamic invasions occurred in various areas."

It was submitted, "As far as India is concerned, we have had a long period of religious growth. More or less, there were conflicts, but largely, the denominations and various philosophies evolved. Our evolution was based more on debates—like when Shankaracharya came to Varanasi and had a great debate with Mandana Misra, and he made Misra’s wife the judge. She was the first lady judge of Bharat. So, it was more about debate. I am not saying there were no conflicts with Buddhism, etc.—there have been conflicts—but it was far unlike the clash of civilizations and religious clashes we experienced when we were colonized for a long period of 800 years; first by the Sultanates, then the Mughals, and then the British...This clash was also an experience at the time when this Constitution was being framed. Simultaneously, we were witnessing a civil war because the Muslim League had decided to seek the partition of this country based on religion, and they formed the Islamic Republic of Pakistan. So, this negative experience was very much alive when this Constitution was being framed."

"On the other hand, if our civilization is surviving today, we owe a lot to religion—the Hindu religion, the religious denominations, the Bhakti movements, and the great Acharyas. It is because of them that this civilization is alive; otherwise, there were enormous attacks. Therefore, this was a positive aspect of religion, and that is why the framers placed religious denominations separately and conferred or recognized their rights. Religion existed before the Constitution; it is not a gift of the Constitution", he added.

Dwivedi submitted, "So, Article 26 is a recognition that these denominations have united the country. Regarding the unity aspect: religion unites, and religion also divides. These are the two aspects that were very much alive in their minds. When this structure was framed, 'public order' was required so that we would not have civil wars of the kind we were experiencing. Without that, there can be no fraternity, no secularism, and different religions cannot interact or recognize each other. Therefore, we need public order."

He maintained that the power of the State under Article 25(2)(b) was limited to social reform and did not extend to "religious reform." Dwivedi explained that the expression "throwing open" of Hindu religious institutions to "all classes and sections of Hindus" was specifically linked to the history of the Depressed Classes and the Poona Pact. He argued that this provision was intended to address the historical exclusion of those treated as untouchables, functioning as a constitutional remedy aligned with Article 17 (Abolition of Untouchability) and Article 15(2) (Prohibition of Discrimination in access to public places).

Dwivedi further highlighted that the Scheduled Castes were historically defined province-by-province, a variation that persisted in modern constitutional notifications under Articles 341 and 342. He suggested that the phrase "classes and sections" must be interpreted through this lens of historical disability rather than as a general mandate for the State to interfere in all denominational practices. He concluded by questioning the exact nature of the "institution" being opened, seeking to distinguish between the secular entity of the temple and the sacred rituals protected by religious denominations.

Justice Nagarathna remarked, "So throw open is for entry to all...It does not mean throw open for management of the temples etc...Opening the institution will not impact the religious affairs."

CJI said, "A denomination processing a set of practices is all religious denominations."

"The Courts will have to be very slow and apply a light touch of judicial review... Unless there is some malfunction or a fraud being played upon the religion itself, creating something which is not established by the religion at all... courts should not interfere, especially if it is not hurting anybody", Dwivedi concluded.

Senior Advocate Gopal Sankaranarayanan argued that religious rights must be viewed through a "broad plane" of principle rather than the narrow facts of individual cases.

Senior Advocate J. Sai Deepak, representing the Pandalam Royal Family and various devotee organizations, contended that if a religious practice is inherently beyond the court's jurisdiction due to its sacred nature, the mere act of the State recognizing or "codifying" that practice through law does not suddenly grant the judiciary the power to review it.