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

J Sundresh: there is no doubt about it

Gupta: I come to important question-can the court do it? I want to place two judgments where the court had said its difficult but we will have to do it.

Gupta: Adi Shiva judgment-"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. A decision on such claims becomes the duty of the Constitutional Court. It is neither an easy nor an enviable task that the courts are called to perform. Performance of such tasks is not enjoined in the court by virtue of any ecclesiastical jurisdiction conferred on it but in view of its role as the Constitutional arbiter."

Gupta: "Any apprehension that the determination by the court of an essential religious practice itself negatives the freedoms guaranteed by Articles 25 and 26 will have to be dispelled on the touchstone of constitutional necessity. Without such a determination there can be no effective adjudication whether the claimed right it is in conformity with public order, morality and health and in accord with the undisputable and unquestionable notions of social welfare and reforms. A just balance can always be made by holding that the exercise of judicial power to determine essential religious practices, though always available being an inherent power to protect the guarantees under Articles 25 and 26, the exercise thereof must always be restricted and restrained."

Gupta: if this test is to be applied what is the application

1. these are to be ascertained as per the doctrines of the religion. please keep aside the question of judicial review. this is adjudication on whether a particular practice is practised by individuals or denomination or whether its secular or religious-it will continue to arrive from time to time

Gupta: in this one case, they used t take out procession with Tandav dance and they were served with 144 notice and they challenged on grounds that they have religious right to perform it in public- this court held that it is a part of essential religious practice but not essential for you to perform in public

Gupta: I am addressing the application of essential religious practice. To save time, I have given a note

CJI: We have four Royal Judge from Supreme Court of Bhutan, Registrar General of Bhutan, Chief IT Officer of Supreme Court of Bhutan, Two Assistant Judges, and many other members from delegation of Supreme Court of Bhutan

SG Tushar General: We welcome them

Senior Advocate Jaideep Gupta(for State of Kerala) to continue his arguments.