Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench [Day 14]

Guruswamy: test of proportionality- measure restricting right must have suitable goal, it must be least restrictive, and it must not have a disproportionate impact. Sunil Kumar Singh v Bihar Legislative Council-"The test of proportionality, thus, applies to cases where action is brought to protect the right guaranteed by the Constitution or other laws. It largely seeks to identify whether the restriction sought to be placed on the right is proportionate to the objective sought to be achieved by the restriction. It often belies a comparison between the importance of the public purpose of the restriction on one hand and the public right on the other hand."

Guruswamy; when you control a body corporation, society, you do what you can't do when you manage- the degree of autonomy is lesser.

Guruswamy: state vested with exclusive powers to throw open the hindu temples, when a right is created specifically in article 25, there is no conflict in tracing it to article 26(b).

judicial precedents have to be harmonised in possible situation. this pertains to devaru.

Guruswamy: refers to Riju Prasad Sharma v Assam: There is no need to go into all the case laws in respect of Articles 25 and 26 because by now it is well settled that Article 25(2)(a) and Article 26(b) guaranteeing the right to every religious denomination to manage its own affairs in matters of religion are subject to and can be controlled by a law contemplated under Article 25(2)(b) as both the articles are required to be read harmoniously.

J Nagarathna: in late 1950s what was the latebacks in the society, the framers were most conscious what needs to be protected and they know what as civilisation was to be protected. as a 9 judge bench are we to upset the civilisation?

Guruswamy: as reforming they were not upsetting the civilisation

J Nagarathan: we are given to understand that lines must be blurred

Guruswamy: civilisations are reformed when balance is upset

J Nagarathna: suppose there is a mutt and the head wants a disciple, it can't be interfered by the state, we can't make inroads into all this

J Sundresh: manage has to be given a restricted meaning, manage what is controlled to you within article 26. you can't have something you don't have

Guruswamy: the word manage has been defined in black's law dictionary as to exercise executive or supervisory power whereas mamange is to govern.

Guruswamy: to manage its own affairs in matters of religion- it is not a matter of chance but explicit intention- if the word was to control its own affairs when we would be in a zone and exercise of powers beyond this court.

Guruswamy: mylords have a lesser task than what the framers had.

second proposition- the use of the word manage reflects the intent to harmonise denominational rights with article 25.

Guruswamy: article 25 was presented as draft article 19.

reads the constituent assembly debates.

Guruswamy: conscience must envisage reforms even if majority doesn't. article 25 is not an unfettered right but a truncated right.

Guruswamy: there are deep intimate conversation which are a balance between faith, religion, etc which the framers were alive to it and hope mylords would be alive to it.

J Nagarathna: none of these reached article 25(1)

Guruswamy: they are envisaged by article 25(1)

J Nagarathna: we are debating to violation of article 25(1)