Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench [Day 3]

Vaidyanathan- in the context of fundamental right under article 32, every religious denomination

CJI-a law enacted as a part of the social welfare scheme

which is impacting religious practice can also have an impact on article 26 for that very group but this question can't be answered academically

J Sundresh- who is a religious denomination? is it a person or not? if its a person, he will come under Article 25 [reads article 25]. to say the religious denomination will not come under the purview of legislation or executive act or social welfare or reform under article 25(2)(b) is too difficult for us to accept it

Vaidyanathan- but he can't force himself

J Bagchi- will it not be a conflict of dissolution of two fundamental rights and thereby making horizontal intrusion

Vaidyanathan-individual fundamental right to profess, practice, propagate religion does not mean he can forcefully assert his right

J Bagchi- everything is a matter of degree sir, when I say my right to propagate will be escliped by a religious affair managed by a denomination, then I have a right to challenge religious affairs

Vaidyanathan- question arose in the context of conversion and court took the view that there can't be forced conversion

J Bagchi- that is normatic but litigation is not normatic

J Bagchi: when you say article 26 comes into play in relation to individuals rights of article 25, doesn't article 25 in that respect get a horizontal projection?because article 26 is not a state right but a denominational right. When a denomination's right v indivdual right to conscience come into conflict, will not article 25 or 26 would be understood as horizontal?

Vaidyanathan- no, such an individual can continue to practice pr propagate his own individual belief but he can't say that the religious denomination must follow my

J Bagchi: word is not only practice but also propagate and that is where the individual right of conscience or propagation becomes esclipe by the essential or religious affairs

Vaidyanathan- bigamy came to be prohibited thereafter. therefore we have to keep all this in mind. therefore today, in some other religious context, perhaps article 25(2)(b) first part can be invoked.

article 25 expressely creates an exclusion only in regard to individual rights under article 25 and not in regard to denomination right

Vaidyanathan- prior to hindu code coming in, even amongst Hindus, there were persons who had three wives, four wives

J Nagarathna: there was no restriction

Vaidyanathan-on question of articles 25 and 26- my respectful submission is article 26 is to be dealt separately. article 26 is not subject to other parts nor to article 25(2)(b) enabling the right under article 26 to be controlled.

article 25(2)(b) is only an enabling a law to be made too regulate the right under article 25. there is no prohibit in regard to making any law for social reforms. for instance, uniform civil code, it can be made under article 25(2)(a) or first part of article 25(2)(b)- first part is social welfare reforms and second is opening temple

Vaidyanathan- In Kerala, there is a famous when the portugese came they sought to convert all syrian orthodox believers into catholics and there was huge resistance and people held on to a chain saying you do what you want but we will not convert ourselves and become catholics

In Ireland, when british crown was ruling, the catholics, they were subjected to differential treatment. they said that you will have no right to property and protestants went to the extent of saying. forcing them to convert but that's why we still have a lingering dispute between them today.

this is not somethign the courts will enter into and decide

Vaidyanathan- it is my respectful submission that Chandrachud J asked the wrong question and got the wrong answer. He asked whether individual rights would prevail over group or collective rights and he held wrongly that individuals right can prevail over collective religious rights

Vaidyanathan-there can be temples which are not public temples, denominational temples which can [inaudible]