Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench [Day 11]
Khambata: even assuming article 26 is separate, it is complementary to article 25-atleast it can't operate contrary to article 25.
J Bagchi: to read devaru as showing the distinction between articles 25 and 26, it wouldn't have gone to harmonising
Khambata: article 25(1) and 26 is a combat and article 25(2) stands on a different footing. article 26 rights can'r rise higher than article 25(1) right
J Sundresh:what you are saying is also problem, how will be find what is unique? a people will common belief will form denomination, another 10 with common belief will form denomination. so long is common belief is there, this definition of adding or subtracting
Khambata: what is a denomination? if the view is that the SP Mittal test is too restrict [common organisation, common name etc] we don't need to be too pendantic about it. an organisation need to have some commonality of structure.
J Sundresh: say SP mithal is illustrative
Khambata: I will add a 4th criteria that the religious denomination must have some uniqueness about it
Khambata: constitutionality morality is the morale of the day-treating a women as chattel etc and equality is built in article 25(1)
Khambata: Though I agree essentiality test has caused problem, but when it comes to balancing we will have to look at it
J Nagarathna: it doesn't have to be a test, it can be an aid
J Nagarathna: that's why devaru said there has to be harmonisation
J Sundresh: your questioning the decision as contrary is different but to question a practice
Khambata: I am questioning the practice only
J Sundresh: then question is what is the area of judicial review
J Nagarathna: all these case laws are with regard to state laws. article 25(2)(b) law is question by basis of violation of article 25(1) incidently read with article 26 if its a denomination. a temple need not be being to any denomination but can we say they have no rights?
Khambata: in my case, it says its for all zoorastrians
Khambata: you can't walk to the temple of worship and say i refuse but provided its an important practice