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

Khambata: Whether the measure is a suitable means for furthering right A and right B; Whether the measure is least restrictive and equally effective to realise right A and right B; and Whether the measure has a disproportionate impact on right A and right B.

Khambata: The best way of balancing is the european court of justice judgment. In electoral bonds case, there was conflict of two fundamental rights, mylords adopted double proportionality test- and you held-“the Court while balancing between two fundamental rights must identify the precise interests”

1. Does the Constitution create a hierarchy between the rights in conflict? If yes, then the right which has been granted a higher status will prevail over the other right involved. If not, the following standard must be employed from the perspective of both the rights where rights A and are in conflict?

CJI: we have to follow if we agree there is perceived conflict, speaking for myself I don't agree there is a conflict.

J Bagchi: as per your submissions the high court has gone wrong with the presumption [that women losses her religion]

J Nagarathna: see the dissenting opinion in kauskal kishore, nobody reads the dissenting where is the relief

J Bagchi: you will still have to file an injunction suit.

J Sundresh: this requires an adjudication, what would be the forum? that factual adjudication

J Bagchi: you dealt with the issues that article 32, maintainability is doubt but entertainability may be

J Varale: at will of somebody managing the denomination, there is change or interruption in practice, then that may not be an essential religious practice and therefore, an intervention of court may be possible?

Khambata: different religious denomination follow different practice

J Nagarathna: if this is not a matter of religion, then you can seek civil relief, file a suit for mandatory injunction

Khambata: I have always been allowed but if the present administration stops, it is for them to go to the court and establish their exclusionary practice

Khambata: my case is a good example, in this no practice has been set up. we have produced letters and resolution all across India that we always allow women. if a practice is started, mylords will have to look at the trustee

J Nagarathna: this woman marrying outside, is it a matter of religion?

Khambata: as a matter of fact its a finding that lady can continue her religion. there is nothing in the material they produced that somehow ostracises or ex communicates the Parsi lady. The question could be inter marriage but then how do you address the elephant in the room that intermarriage by male are allowed

CJI: in simpliest terms, question 1 and 4 are predominately question of facts and 5 and 6 are legal consequences. my brother and sister pointed out that what would be the forum because it would require evidence.

J Sundresh: you are asking us to enter into an arena whether we have to determine a v b. the member of denomination if he doesn't agree with religious practice, how can court enter?

we are conscious of our jurisdiction, and we will have 1000 and 1000s of cases. Kaushal Kishore says the rights can run horizontally on premise that that person is not exercising his rights under the constitution

Khambata: judicial review can't be excluded in 6 cases:

1. Whether or not the doctrines of a religion include a particular practice;

2. Whether practice or belief is a genuine practice / belief enjoined by the religion and not an artifice;

3. Whether a current organisation or entity has the exclusive right to dictate what the doctrines of a religion are;

4. If there are conflicting doctrines or practices, then which of these is part of the religion and which not;

5. Whether a “matter of religion” or a practise / doctrine is contrary to public order, health or morality;

6. Whether a practice of religion in a particular instance collides with a competing fundamental right viz. Article 14, 15, 21 or 25(1);

if so, then how the doctrine of balancing or harmonious construction or double proportionality is to be applied to save the “precise interests” or core of both competing fundamental rights. To that end, the precise interests or core of the religion will necessarily have to be determined

Khambata: also refers to Adi Saiva: Often occasions will arise when it may become. necessary to determine whether a belief or a practice claimed and asserted is a fundamental part of the religious practice of a group or denomination making such a claim before embarking upon the required adjudication.

first step is whether its unequivocally a part of the religion, if that is proved, the court should show reluctance.