Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench [Day 2]

Mehta: refers to a judgment Seshammal & Ors, vs State Of Tamil Nadu- tamil gov government appointed archakas as its a secular activity-"he State cannot reform a religion out of existence and if any denomination has accepted the hereditary principle.for chosing its priest that would be a religious practice vital to the religious faith and cannot be changed on the ground ,that it leads to social reform"

J Nagarathna: in the name of social reform, religion can't lose its identity

J Nagarathna: if there is a law made under article 25(2)(b), social reform?

Mehta: even then

J Nagarathna- ultimately court said article 26(b) will prevail

J Nagarathna: if there is a law made under article 25(2)(b), social reform?

Mehta: even then

J Nagarathna- ultimately court said article 26(b) will prevail

Mehta: within the community, A community, and I am not on dalit, and my learned friend belongs to another. my denomination would say its denominational temple and I prohibit- should we take a view which leads to fragmentation of the religion? if we read with article 14 and 15 and 17, then only possible article 26(b) would be given a purposive meaning

Mehta- government is worried because there can be a denomination which says we exclude women from all our religious institutions because we are not governed by article 25, whether that would be a position while interpretating the constitution would do?

Mehta: the question was Sardar Syedna Taher Saifuddin Saheb, the question was he was the spiritual head of dawoodi bohra and has the power to ex-communicate. the maharashtra gov brought and act where they raised a contention. the minority view said that you can't do something under article 26(b) which completely ousts somebody's civil rights and he becomes non-grata. majority accepted article 26(b) was a standalone.

J Sundresh: concept of logic you can't apply to religion per se.

Mehta: Dargah committee was criticised by Seervai [reads it]

J Sundresh: it is like an action which is void or viodable. if its void, then we request a declaration. like sati or widow remarriage, if its not occupied by any legislation, court can indicate to that extent. but i appreciate that we can't go beyond and take a different role which is not assigned to us

CJI: the moment there is this kind of practice, the court will simply say it violates the public order, morality.

Mehta: mylords can even say we request the parliament to come up with law

J Nagarathna: mr solicitor, the approach of the court in such matters also must be to determine essential religious practice from the lens of the philosophy of the particular religion. you can't apply some other religion and say, this is not an ERP.

J Sundresh: we can adopt a handsoff approach, but to say we should not complete not go

J Bagchi: we understand that the legislature under article 25(2)(b) but that doesn't take away the residual jurisdiction of the court in an appropriate case