Singhvi: apart from three conditions, article... ... Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench [Day 4]

Singhvi: apart from three conditions, article 26(b) is subject to law throwing open hindu religious institutions of public character-it will be subordinate

it may also be subject to first five words of article 25(2)(b) provided the legal or social welfare reform doesn't eviscerate or hollow out the religion out of existence or identity

J Nagarathna- it seems like devaru is rightly decided according to you

Singhvi: if you argue that article 26(b) will prevail over second part of article 25(2)(b), I atleast don't agree. If you argue that article 26(b) will prevail over first five words of article 25(2)(b), I don't agree.

A search through the Constituent Assembly Debates does not reveal any analytical discussion as to why the phrase “subject…to the other provisions of this Part” was inserted in Article 25 and omitted from Article 26, though, at some places of the Debate, there is reference by some speakers to the phrase “subject…to the other provisions of this Part”.

It has, however, been noted by the Supreme Court on more than one occasion that Article 26 cannot be subjected to Part III restrictions.

refers to TMA Pai -it was observed that the absence of the phrase 'other provisions of this part' in the opening sentence of article 26 would not mean that article 26 is over and above the other right conferred by part III- that means your lordship is giving no effect to the omission [of the words subject to other provisions in article 26]. The court referred to Dargah committee and Tilkayat that article 26 is subject to article 25 irrespective of words- this is a far reaching proposition, it rewrites the Constitution.

Astonishingly, the above conclusion by Khare, J, while being based supposedly on Durgah Committee and on Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, is rendered per se inapplicable and indeed per incurium for the simple reason that no such conclusion can be found in either of those two cited cases. These words of the supposedly concurring judgment therefore reflect an error patent on the face of it.

The proposition is completely obiter and cannot be treated as a judgment of 11 Judges for two simple reasons, namely; no issue of Articles 25 and 26 arose in this case since it involves the interpretation of Articles 29 and 30 and secondly, no other Judge out of the Bench of Eleven Judges, majority or concurring or dissenting, adopted this view viz. that Article 26 would somehow be subject to the other provisions of Part III.