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

Jaising: Nepal made a committment to CEDAW Committee that it will not discriminate menstruating women and it went to change its laws

Jaising: doctrine of proportionality has never been invoked when there is a clash but as administrative principle when the state action is arbitrary. this court has given the test of harmonisation in devaru and essential practice.

in devaru, substantial injury aspect is also there to see which gets eclipse. I suggest with stick to harmonisation. there was one principle where a HIV person didn't disclose it to his wife- the court used doctrine of harmonisation along with essential religious practice test and substantial injury.

on untouchability- it didn't exist in the english language in the 19th century.

Advocate 4: this is not merely a conflict between individuals and group. individuals are also a group of 10-50 women who are excluded. there is horizontal application attached to article 25. refers to the entry of women in Haji Ali Dargah

J Nagarathna: nobody has argued what does subject to other part of Part III means. that is the whole subject of 9 judge bench. in 17 days

Advocate: subject to part III would mean all rights

J Nagarathna: you want to subject to articles 14, 15 and 17 but not 25 and 26

Advocate: individuals who are subject to exclusion are those who belong to close knit community face the highest form of excommunication and that is why a third person should be allowed

Advocate Harshit Anand: everybody's thrust has been on harmonisating, proportionality, but hard claims arising the only solution could be constitutional morality. what are hard claims? for instance santhara in jains, prajo Paryushana and soku shik bhudu- right now criminalised in japan-these are hard claims because these cases are where article 21 right to live and health are in conflict with the same individual- this is basically them saying I want to waive my right to practice these practices.

the second argument is the principle of proportionality or harmonisation doesn't apply because the other right will go. what is the solution? principled argument of constitutional morality will come to rescue even if you don't wish to exercise it. fundamental rights can't be waived of.

Kalitha: exclusion of women on notions of purity is violative of the constitutional ethos.

Advocate Chaturvedi: a number of counsels that where there exist is a conflict, proportionality is sufficient. I submit double proportionality is necessary. the doctrine of proportionality arises from conflict between individual and the state but it never evolved as striking down a legislation for violating the right of other. in aadhaar mylords adopted proportionality and held that there is no disproportionate impact on privacy. now take where there is a disproportionate impact, what would be the consequence of applying proportionality simplicter? that is why in electoral bond, double proportionality was used.

articles 25 and 26 are sui generis rights,in my written submission I have said how double proportionality should apply.

Advocate Sneha Kalitha: the constitution draws a distinction between inner freedom and external manifestation the latter subject to limitation.

2. article 26 doesn't expressly contain subject to other fundamental right- it can't be read as exclusion of other parts

3. article 25(2)(b) is transformative in nature, applicable to article 26 as well- test of doctrine of compatibility is required

Advocate 4: on conscience, man is an inherent rational person. this ultimate meaning of freedom of conscience is not linear, I can be allowed to change. if I don't have a right to dissent, there will be no social reform. some aspects of conscience is completely private and state can't get to pervade. because conscience is absolutely private, so when I am entering temple, contrary to devaru, enter can't be a religious practice. when I am entering, nobody has a right to question whether I am 100% believer or 50% believer.

why constitutional morality must trump

CJI: has been argued

Advocate 2: I am a sanskrit scholar, 94 years old. There is a chapter on Sabarimala which as a link to the continuation to the practice of buddhism.

subject to public order morality and health is common to both but other provisions of this part, constitution consist of 22 parts but FR is Part III. whatever issues are there, it is connected to dignity.

Advocate 3: there is harmony in islam and hinduism. as far as my matter is concerned, it is doctrinal and admitted by AIMPB. my prayer is to enter the mosque, there are 3 types- under waqf board, regulated by mullahs and ASI. Likewise, there are private and state temples. today the problem in the country is the state is trying to take over the private temples, collector is changing the revenue entry.

Padmanabhan: on issues 1, 2, 3 and 6- right to freedom of religion has reasonable restriction. group rights are a form of liberty which should be balanced with equality. all sections of hindus excludes none.

Advocate Prashant Padmanabhan: article 25 is the genesis of the right to religion and article 26 is the facet. this is the interplay between articles 25 and 26 is the balance between liberty of citizens which gives space to religious denomination in matters of religion.

dr ambedkar say without equality liberty would be a matter of the few. article 25 uses the word person should be read along with article 6 of the UDHR and ICCPR. Everyone has a right to recognition everywhere which is in course of inherent dignity and liberty.

if there is a purification ceremony after a woman enters sabarimala, then its a violation of her civil right.

Advocate 2: a suggestion was there to include god in the preamble and it was rejected. the custom will not be appropriate to use in article 26. when we see the dictionary meaning of tradition, the traditions are perpetual.

article 19 gets much more restriction. so if we say anything which affects the country, I don't have the rights.