Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench [Day 12]

Shrivastava: In other words, what is guaranteed essentially as a fundamental right is freedom of conscience, and the application thereof is the right freely to profess, practice and propagate religion. It is not possible to conceive a right freely to profess, practice and propagate, without the freedom of conscience. What is guaranteed as freedom of conscience is followed by the outward manifestation of the same by the person under the right freely to profess, practice and propagate religion.

Shrivastava: The emphasis is on “freedom of conscience” which is vested in all persons equally. The freedom of conscience is the main fountain source of the fundamental right to freedom of religion which is intrinsically connected by use of the word “and” in Article 25(1) with the further adjunct “right freely to profess, practice and propagate religion”.

Shrivastava: Constitution makers in relation to the right to freedom of religion, basically wanted to guarantee to all persons that they are equally entitled to freedom of conscience.

Shrivastava: 4 aspects of the matter which falls for consideration-interpretation of articles 25 and 26, the essential aspect is the interplay. the second, which has been much controversial, is the correctness of essential religious practice interpreted in Shiru, and Dargah Committee and then the constitutional morality and additionally, whether principle of stare decisis would be applicably. I am not taking about mylords jurisdiction

Adv Ravin Shrivastava (with Khambata): there are purely constitutional questions, they are not religious questions as such. some other forum will answer the individual questions on facts of each case in light of mylords authoritvative pronoucement.

Karl: reads AK Gopalan-it read article 19 separately from 21- RC Cooper overruled and said FRs can't be read in silos. when mylords are resting fundamental rights, they can't be interpreted in a manner where exercise of one would trample the other.

and lastly, the doctrine of non-retrogression. doctrine of progressive realisation of rights and non-retrogression. This Hon’ble Court has held that the State must move forward and refrain from adopting an approach / interpretation which will result in regression of rights.

CJI: we are not sure if you are actually representing Gupta. please clarify who you are representing

Karl: I am an intervenor, I am supporting the cause of cause of zoorastrian ladies.

CJI: who are you, who are you representing?

Advocate: i will place three doctrines- basic structure, concept of living tree-The Basic Structure Doctrine does not make the Constitution stagnant; rather, it is an evolving mechanism that is greatly influenced by the Directive Principles of State Policy and the Preamble. As societal conditions change, the judiciary evaluates the goals of social justice, economic equality, and individual freedoms to determine the evolving substantive content of the basic structure. This adaptability is covered by the ‘Living Tree Doctrine’, a concept originally borrowed from the Canadian constitutional jurisprudence

Advocate: you can't never not read the words subject to other part III to article 26, it would lead to an absurdity.

Advocate: J Amanullah asked will rights not be different under articles 25 and 26-the distinction would be article 26 applies to denomination but at the end of the day, it is a collection of individuals and to read it separately would do violence. on harmonious construction, denomination has the right under article 25 is to manage the religion but can in management you trample upon individual rights?

J Sundresh: did you hear mylords suggestion yesterday that it gets removed with the operation of the act