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

CJI: according to you denomination and sampradya is the same?

Gupta: it is for the purpose of the constitution

Gupta: look at clause 2: 'The translation of this Constitution and of every amendment thereof published under clause (1) shall be construed to have the same meaning as the original thereof and if any difficulty arises in so construing any part of such translation, the President shall cause the same to be revised suitably."

both have to be taken into consideration and if there is a conflict, the english text is the authoritative text. In this case, there is no conflict because the english word used in shirur mutt

J Amanullah: the denomination is authentic rather than sampradaya. it appears to be correct because hindi to be taken as authoritative translation but not for the determination.

Gupta: if you apply while principle of interpretation, sections of hindus would include women.

on article 26- it talks about religious denomination but doesn't define it. in such cases the court checks the dictionary and therefore in shirur mutt the court checked it. it has been suggested that take the hindi word for denomination. the constituent assembly rejected to have constitution both in english and hindu. Dr Rajendra prasad asked the members to sign the hindu document which was not passed.

when the shirur mutt was decided, question would be why the hindu definition was not looked at it? because there was no hindi definition. amendment was made and Article 394A was added. It has been argued that hindi translation should prevail but its just the opposite.

J Sundresh: article 25(2)(b) refers to a social reform, its an enabling power

Gupta: we have to understand what is the religious institution of public character- it is a public character if the worshipper is a Hindu and it is private if it allows a group of persons. Devaru was a denominational temple and public could enter with permission and it was never lifted so it was declared a temple of public character.

Gupta: one of the most important aspect of social reform is throwing open the hindu temple of public character

J Nagarathna: you can't violate in the name of reforms for what is there in article 25(1). it can't hollow out the religion

Gupta: it can, hollow out is a big word

Gupta: on article 25(2)(b)- on social reform and welfare- why is it to be found on articles of religion if its only social? the reason why it is there because social rules have sometimes been sanctified by making it a religious practice. so if you want to reform social rules, you will have to touch religious practice.

Gupta: social rules are raised to the platform of religious rules. tanks out in the road are used to be restricted for some caste and class and they raised it to the issue of religion.

J Nagarathna: it is there in article 15

Gupta: mylords may wish to reconsider seshammal but on the facts of the case and not while dealing with a legal proposition.

J Nagaratha: process of appointment can be secular, but qualification is strictly religious. Method of worship are all strictly religious and therefore, there is a line to be drawn

Gupta: the archakayas are trained in the institutions

J Nagarathna: In South there is no agamas

Gupta: now if you are from Shivate agamas you can't appoint a vishnavite

Gupta: Sesshammal has been asked to be overuled- but it is not wrongly decided- what was the question? under tamil nadu act, they had decided to amend to bring the amendment of hereditary position for post of archakas has to be abolished- actual appointment of archakas was a secular practice but relying on a report, it was said that this has become a permissive practice.

Gupta: I bow down that all restrains must be exercised while dealing with religious practice. citizen's emotions are involved but sometimes, it has to be down.

it is not substituting mylords view when deciding,you are taking evidence accepting or rejecting the materials before it.

Gupta: on articld 25- there is a conflict between whether ts religious or secular activity-mylords asked if there is a test? the only test is Ratilal judgment which says common sense will have to be applied.

my submission is you can draw the balance. in the shirur mutt, issue was how much ghee should be used? the one lying on scripture would like to draw the balance towards religion and those looking for secular aspect would like to draw the balance towards secular aspects so no test has to be applied, it has to be decided case by case.