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

Mehta: those who go to Sabarimala are ayyapans. for example, vishnavites we go to tirupathi which itself is a denomination.

J Amanullah: if we understood you correctly then Ayyappans can be taken as sections or denominations

Mehta: it qualifies as denomination but at worst, a section thereof.

J Amanullah: a denomination have to have a continuing faith

Mehta: Ayyappans is a separate denomination. in indian scheme there can be an overlap. I can be a member of both denomination

J Nagarathna: if we start mixing all this, there would be no religion left in the country

J Nagarathna: you can't say rights under article 25(1) is subject to article 17. it can be bring in as a social reform but its different from saying article 25(1) is subject to articles 14, 15, 17 etc. It is subject to article 26 to 28 because it uses religion as said by Gopal Shankarnarayan

Mehta: i would not argue the extreme propostion that there is no judicial review but its very restrictive because we are dealing with religion which at times doesn't have casual connection

Mehta: in the entire judgment the majority view the religious denomination or section thereof is not noticed. Ayyapans may be a denomination of sections thereof. I have quoted the minority view of J Reddy.

majority in sabarimala cites SP Mithal. There is a minority view of J Malhotra in Sabarimala where ladyship takes the view denomination or sect thereof but none of the judgment notice section thereof. there are be denomination, denomination within denomination

J Sundresh: we have to leave it to the collective wisdom of the belief

Mehta: SP mithal doesn't notice this constitutional expression-they are aware of internal plurality but Mithal which lays down the test of religious denomination-my submission is SP mithal is a wrong law and needs to be set aside. this doesn't take into account sections thereof.

CJI: absence of word sex doesn't mean it permits gender discrimination is your argument

Mehta: i need not be a part of any denomination but if more than one person subscribe to a particular method of worship and get together, article 26 is a manifestation in the collective form. right to profess and practice is not available to denomination. mylords asked if denomination is a juristic person or not? under indian scheme of things, there is a religious unity at the same time internal plurality. there is a possibility of denomination without a name or denomination within a denomination.

for example-vishnavites is a denomination but its not confined to lord Krishnan. those who follow Ram are also vishnavites.

Mehta: we will have to read this as a sub chapter internally dependent on each other. other side said article 26 is not subject to Part III- now if were to accept that in absence of part III, other provisions would not apply- what happens to article 29?

gender and sex is not accepted- reading articles 29. we have been reading article 19 read with 15 and 16. if textual absence of part III leads to a conclusion then it would not apply, then all articles without textual reference would be silos. fundamental right is not a suferflous word.

J Amanullah: it is not necessary that it has to be read with article 19, because it says citizen which includes everybody. citizen is not male or female.

Rejoinder submissions

SG Tushar Mehta: in all these judgments in the past, the question which the court posed was reversed- whether its religious practice and if yes, whether its essential

but real question would be- whether the practice in question is against public order, health or morality and violates 25, and if yes, then article 25(1) is apply

the difficulty is this mylords are explaining FRs and it must be given the most expansive meaning. and articles 25 and 26 are where restrictive meaning is given. essentiality is textually absent. the moot question is what is the interplay- otherside said article 26 is a standalone but mystand is they are to be read together.

part III incidentally has sub heading-each article is grouped together in a heading.