Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench [Day 10]

Jaising: mr subramamium says article 26 override, what does it mean? what is the logical sequitur

Jaising: the only losers in this case are those who obey the law.

Jaising: one of the women lawyer came to be because I was agitated after listening to 55 lawyers. she said madam why are you so worried, let them say women can't enter. if the court decides women can't enter, we are the younger generations we will challenge it

J Nagarathna: let us not open rituals and ceremonies which is there for centuries

Jaising: Church, they appoint women priests

J Kumar: did the lady say we will clog the order of this court?

Jaising: no, she said we have power of judicial review. my lady says how can you reopen the judgment,i agree but it has been done. they relied on TMA Pai, what was it? it was to open Unni Krishna under article 32. I appeared in TMA Pai. don't blame us for lack of judicial disciple.

Jaising: Adi Saiva Sivachariyargal, Seshammal and others. there is a residual protection. i don't intend to challenge but tomorrow a woman can say I want to be a priest-this may arise.

Jaising: can i enter with a ceremonial? the line is not at entry, but at ritualistic performance-that is where they say u can't do what agamas don't say you to do.

this court has protected ritualistic practices. how do perform puja- I can't go and tell how it has to be done. this line has been drawn. closest this question arose in two cases of appointing priest.

J Amanullah: basic question is also lifting the veil of the intent- if you are a believer and violate the general sentiments of the majority

CJI: normal article 25(1) is the hallmark, in terms of article 25(1) confers a fundamental right to enter into a temple. but article 25(1) is a recognition of a preexisting right, then it might be different.

Jaising: if such a dispute arise in british india, the courts will call theologist to get evidence

J Nagarathna: article 25(2)(b) doens't create a right. if a state makes a legislation then the challenge will then come, whether is the right to entry then? the temples of Kashi, they say anybody from south of india is not permitted, can that not be done? Either the Parliament or State can make a law but article 25(2)(b) doesn't create a right of entry

Jaising: every system of law, hindiusm, islam this exist everywhere. it is false to sugges that this court is deciding what is essential. no, its the religion itself

J Amanullah: what extent you want essentiality the court should go into?

Jaising: theology is a matter of fact because its written. it is a civil right raised to the level of the constitution. it is inherent in being human.

J Amanullah: it is qualified also

Jaising: limitations, I am bound by that and I can't claim outside of that.

J Amanullah: there is a religion and there is minority in that, how do i decide?

Jaising: minority within a religion-J Bagchi said do people dispute within themselves- it is a doctrinal minority with difference of theology and that's when it becomes a denomination

J Amanullah: not so compartmentalise, it can be only ritualistic.

Jaising: ritual is a part of theology

J Amanullah: everytime the court intervene, there has to be a limit because then the whole constitutional protection will look illusory

Jaising: religion itself divides

Jaising: whichever way, the outcome will be my entry. but the question is to harmonise and you need a test- social reform is bonafide-lets take it, its fine but outcome will be the same.

it is not the civil court or the constitutional court deciding essentiality, it is the religion itself. one judgment sharaya bano-whether triple talaq is essential? it is the religion which decided. some dictates are mandatory and some directive.

J Nagarathna: its an enabling power, when a piece of legislation is made the question is whether it is making an inroad or whether it is reform per se. in that context, don't say only essential religious practice

Jaising: then say what

J Nagarathna: in the name of reform, don't hollow out the religion

J Sundresh: if you remove essentiality and keep only reform, it will give you more flexibility

Jaising: outcome will be the same, it will harmonise social reforms

J Sundresh: the courts will have to be circumpect when dealing with essentiality.