SG: there is a view that article 26 is unfettered by but i am not putting it that one article can be an island. there are some arguments which says article 26b can't be read with Article 25(2)(b) that there can't be a social reform
SG: that is not my argument. Article 26b is not a standalone, it has to be read with Article 25. Articles 25 and 26 will be governed Articles 14 and 15, I am not pitching it high
SG: when we go to gurudwara or ajmer sharif, we cover our head. there is new jurisprudence which has developed. all sections of hindu is meant no caste based discrimination.
J Bagchi: that is a question- managing religious denomination prevails over Article 25[right to everyone over conscience].
SG: every denomination practice we have to respect, everything is not relates to dignity or bodily freedom. if i go to mazar or the gurudwara and if I have cover my head, i can't say my dignity or right or choice is taken away.
SG: I will defend sabarimala in my own different way, it does not mean 4 days it means a particular age group. Lord Ayyapan temples are open through the world for all sections of ladies except one particular temple which is a sui generis case. there are 3 lord ayyapan temple in Delhi open for all.
SG: India is not that patriarchal or gender stereotyped that the west understands.
J Nagarathna: article 17 in the context of sabarimala, I don't know how it can be argued. Speaking as a women, there can't be a three day untouchability every month and on fourth day, there is no untouchability.
SG: I am not on menstruation
J Nagarathna: speaking as a women, Article 17 can't apply for 3 days and on 4th day, there is no untouchability
SG: one opinion Sabrimala says Article 17 applies to women- you are treating them as untouchables- i have a very strong objections to it
J Nagarathna: if there is a social ill which is branded as religious practice-the court can distinguish between the two-whether its a social evil or essential religious practice
SG: the constitutional answer would be the remedy is Article 25(2)(b)- legislature can legislate
SG: My lordships find if there is something unscientific, the remedy is with the legislature. but if it is to be gone into the remedy is a civil suit where parties can lead evidence and expert witnesses. it can't be that there is nothing in affidavit which satifies that this is not an essential religious practice
J Bagchi: your argument is not on justicability
SG: it is on justiciability and in most cases the forum also. in some religion, some persons claim there is right of human sacrifice has been a practice and it is essential- no evidence is made. if some examples come which directly hits public health or morality, mylordships doesnot have to go into essential religious
SG: that is a correct approach
J Bagchi: it is a unique capsule which can be seen from fundamental duties. there can be a faith which scientific temper may not ravel but that may not be a question but whether such faith existed within the members of a religious denomination can be an issue framed
SG: but not whether it is essential religious practice