A 9-judge bench of the Supreme Court will start hearing the Constitutional issues referred to the larger bench in the Sabarimala review.Apart from CJI Surya Kant, the Bench comprises Justice BV Nagarathna, Justice MM Sundresh, Justice Ahsanuddin Amanullah, Justice Aravind Kumar, Justice Augustine George Masih, Justice Prasanna B Varale, Justice R Mahadevan and Justice Joymalya Bagchi.The...
A 9-judge bench of the Supreme Court will start hearing the Constitutional issues referred to the larger bench in the Sabarimala review.
Apart from CJI Surya Kant, the Bench comprises Justice BV Nagarathna, Justice MM Sundresh, Justice Ahsanuddin Amanullah, Justice Aravind Kumar, Justice Augustine George Masih, Justice Prasanna B Varale, Justice R Mahadevan and Justice Joymalya Bagchi.
The seven questions before the Supreme Court are :
(i) What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
(ii) What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?
(iii) Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?
(iv) What is the scope and extent of the word 'morality' under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?
(v) What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?
(vi) What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution of India?
(vii) Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?
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J Nagarathna: in Devaruand, there can be a possibility of article 26(b) over article 25(2)(b)
SG: yes yes
J Nagarathna: but you didnt say that
arguments to continue tomorrow.
J Bagchi: what you are articulating was not raised in Devaruand
SG: now I will come to dargah committee-it takes a departure and says essential religious practice is the test which in my respectful submission is a wrong assertion by judicial interpretating, not coming from text of article 25 and 26 and shirur mutt.
SG: my worry is this it in isolation then something which is horribly wrong or shakes the conscience of the legislature-then making article 26 absolute would thwart reformative actions also
J Bagchi: enlightened us on this, it holds article 26(b) subject to other provisions of this part but sub-clause 2 does not have this subordinate clause but sub-clause 2 is only an enabling provision. we know the idea of gurudnorm, fundamental right provision had higher prerogative than statutory enactment. if you see clause 2 from that perspective, non-obstante is 'nothing in this article' which is article 25 and not 26. whether a law made in enabling scope of clause 2(b) could not be tested envail on Article 26?
J Sundresh: in a ligher vein, the bench could have probably decided what is public character, it would have really resolved...
SG: it is for mylords to decide if they did so because of case specific or because of proposition of law. according to me, its a proposition of law.
SG: While, in the former case, Art. 25(2)(b) will be put wholly out of operation, in the latter, effect can be given to both that provision and Art. 26(b). We must accordingly hold that Art. 26(b) must be read subject to Art. 25(2)(b).
SG: On the other hand, if the contention of the respondents is accepted, then full effect can be given to Art. 26(b) in all matters of religion, subject only to this that as regards one aspect of them, entry into a temple for worship, the rights declared under Art. 25(2)(b) will prevail
SG: Applying this rule, if the contention of the appellants is to be accepted, then Art. 25(2)(b) will become wholly nugatory in its application to denominational temples, though, as stated above, the language of that Article includes them.
SG: The question is how the apparent conflict between them is to be resolved. The rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect could be given to both. This is what is known as the rule of harmonious construction