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

Senior Advocate CS Vaidyanathan: some of the persons who argued have proceeded on basis that articles 25 and 26 conferred certain rights on individuals and denominations-these are parts of natural, preexisting rights and constitution merely recognises it.

Mehta: While examining any issues concerning religious freedom, the Court will not enter into the question as to whether the religious practice is ‘essential’ or ‘integral’ to the religion. If it is a religious practice and not proscribed by being against public order, health, morality or fundamental rights, the citizens, as well as denominations, will have a fundamental right to practice it.

mylords are dealing with religious and those saying it violates article 14, it may not be possible. the scrutiny would not be constitutional understanding but from the perspective of those who follow the religion. constitutional morality is not a test for deciding. it was never intended for striking down.

The judicial review in such matters would be minimalistic and restrictive. The alleged arbitrariness or irrationality, as per religious faith and belief, cann't be tested on the touchstone of arbitrariness or unreasonableness, as constitutionally understood under Article 14 of the Constitution.

Mehta: I have given the history of constitutional morality.

last point,conscience would be more than religion or not- conscience would be wider than religion.

on judicial policy: the Court, in cases involving Articles 25 & 26, must first look at whether there is a religious practice and then test it on the grounds of public order, morality & other provisions of Part III. The Court can also examine whether the practice is restricted by any law made under Article 25 (2)(a)(b).

If it is not possible to decide the above-referred questions, i.e. (i) Whether it is a religious practice

(ii) Whether it affects public order, health or morality, or any other restriction merely based upon affidavits and arguments, the constitutional courts should not be a court of first instance, and the parties may be relegated to the remedy of civil suit, where not only expert witnesses can be examined, but also the evidence can be led.

many judgment cited arose out of civil suit and then mylords had the advantage of evidence.

Mehta: lighting a diva is a religious practice but purchase of ghee is a secular practice. suppose there is a restriction that you can't purchase beyond a certain amount, it is a mixture and mylords would hold it for the benefit of religion.

J Bagchi: article 25 three words-all equally and freely- all persons have equal right irrespective of all numbers

Mehta: whether its small or big religion or one man religion.

CJI: article 25(1) is religiously neutral and article 25(2) is not because it says Hindus

Mehta: majority has accepted all reforms but how superstitious is taken care of- gujarat animal, birth and sacrifine- this is a reform. against witchcraft there is an act.

J Bagchi: since you are bringing witchcraft, it was the court's direction for states to bring laws

CJI: we are unnecessarily debating, majority can have their own and minority will have its own.

Mehta: it is very subjective and that's why the court should not go and let the legislature decide

J Nagarathna: irony is the rule recognised the ban in sabarimala and the court struck down

J Bagchi: court is bothered about majoritarianism trumping the constitution. even if majority feel a particular thing is to be done, the court will still have to test it on the parameters of constitution

Mehta: if a practice falls within prohibited zones, mylords can certainity but not as reform.

Mehta: when a law is passed, its acceptability is much more and advisedly the constitution has left reform to the parliament

J Bagchi: it wasn't reform but ultra religious- when brought ot the notice of court in undisputed fact situation, the court not just have a right but also a duty. when it comes to incremental change, the courts will naturally defer.

Mehta: on reforms, can go not go into something which is so startling such as witchcraft- legislature is always conscious. religion reforms itself from within- as mylords said sati was a social practice which the religion itself but can court be a reformist? no. the reform part is given to a legislature. whenever a practice is required to be reform

J Sundresh: it uses law, does it have to be a legislative act only