Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench [Day 15]

Singhvi: proportionality is not the first test, first is reasonable restriction.

on whether article 26 is subject to other limitations- mylords may hold that subject to other provision may be that all parts of part III which are horizontal may trump article 25(1) but not the non-horizontal rights. horizontal rights are 15(2), 17, etc. I don't agree that 14 and 19 are horizontal rights.

Singhvi: I am submitting there is a distinction between entering a temple and managing it. article 25(2)(b) is about entry and article 26 by contrast is managing. article 25(2)(b) doesnt authorise to alter the character of denomination.

Singhvi: the constitution doesnt rank fundamental rights in rigid order- the solution is harmonious construction.

the question on subject to other rights- I am saying yes to similar rights but not articles 14 and other such rights.

article 25(1) is a natural pre existing right. it can be rightly be treated as equality in religion.

interplay between rights of persons and denomination-

CJI: doesn't answer all these questions we will answer it

Singhvi: on essential practice- there is a larger degree of animity that essentiality is an unsustainable test. article 25 expressly subject to these heads and essentially impermissible adds to the list.

mylords are confined to a factul ascertained question whether a belief is genuinely held.

on social reform and throwing open- these two limbs can't be conflated. the constitution doesn't permit every exercise of social reform power althought it contains the general throwing open power. bear reading of b reflects a conscious choice consider the caste based discrimination.

Senior Advocate Abhishek Manu Singhvi: these are issues of nuance when 9 judges sit and decide, there is no this side or that side.

Singhvi reads the questions put by the court through the 14 days of hearings.

Vaidyanathan: nobody can say when institution is only for girls, boy should be included. article 29 excludes gender. kindly keep this in mind. in article 25(2) is not enumerated for a good reason. the constitutional framers were well aware of the fact that sex and gender would have some distinction. subject to part III is left out for a reason

Vaidyanathan: on archakayas appointment, I have already said seshammal is incorrect.

a petition by non adherent has no right. a petition by non adherent espousing the right of adherent may be entertained but a petition by an individual dissenter would not be allowed.

Vaidyanathan: erp doctrine, what shirur mutt said what not of practice having to be essential. AG may have argued. what constitutes religion from the religious practice was changed to what the court considers it essential- this is what it was not meant for.

is religious denomination a juristic person?

J Sundresh: i asked if its a person within article 25(1)

Vaidyanathan: i have said its not necessary

Vaidyanathan: the argument was article 25 was hypotheically absent there would be no article 26- article 26 will still protect denominational rights.

in shirur mutt this court said denominations have complete autonomy. article 26 operates on its own.

the denominational right to manage is not an aggregation of individual rights, its quite distinct and different.

shirur mutt recognised this when it held that what constitutes religious practice is to be recognised by the denomination itself, it doesn't follow from article 25.

since both operate in distinct fields, there is no need ofr harmonious construction.

individual can't claim a right to worship in a denomination that overrides the denominational right to prescribe the manner of worship.

devaru, the reasoning is incorrect conclusion may be right. a temple was found to be a denomination and of public character in civil suit. the issue was exclusion of harijan was right or wrong- devaru should be overruled. the conclusion article 25(2)(b) overrides article 26 is per incurium of shirur mutt. the interpretation discriminates against hindu denominations.

Vaidyanathan: I have referred to Gopalkan that these are pre-existing rights. the textual structure confirms that all persons are equally entitled to conscience. the language is of entitlment and not of grant or conferrment.