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

J Kumar- if we construe it like that, then tomorrow there may be a situation where others will start asserting and say you will exclude 'xyz', it can't be.

J Kumar: you admit article 25(2) has to be read with article 26

Vaidyanathan- no

J Kumar- UOI has canvassed

Vaidyanathan-i am in disagreement

J Bagchi-Vaidyanathan is putting article 26(b) at a higher pedestral than article 25(2)(b)

Vaidyanathan- 25(2) is an enabling power-it doesnt confer any right. we are comparing one provision which gives an enabling power to article 26 which is a right which is given.

Vaidyanathan- it comes under the heading of religious freedoms so in a sense it is not a island provision but can the right undrr article 26(b) be subjected to any law made pursuant to article 25(2)(b) is the question i have to address- my submission is it can't be. Shrir Mutt was concerned with article 25(2)(a)

Vaidyanathan- individual freedom of conscience defeat the freedom of the community or denomination

J Kumar- you admit that article 26 is not an island provision or a standalone article

Vaidyanathan- article 26(b) is the right of the denomination, question is not whether its an island but whether it can be controlled by article 25(2)(b)

J Bagchi: But that does not mean the visitum gives up upon his freedom of conscience not to accept it but has to subject to it because if we hold otherwise that the non-believer can't interface then we would be eroding the non-believer of his core freedom of conscience even to profess because to profess if you look from the contradiction view, a person who has to contradict a proposition first experience the proposition so a non-believer may subject himself but need not to accept the religious

CJI: In Guruvayur temple, you can't wear shirt you have to remove the shirt. In north india, when you go to gurudwara or golden temple, you have to wear[cover their heads]. Millions of hindus go to gurudwara but they cover their head.

J Bagchi- all these examples show the precedence of article 26(b) with regards to its superiority in managerial rights of religious affairs manifested through the practices and rituals etc over the core internal belief which is freedom of conscience and its rights.

If a person is a non-believer, even if he goes to a temple or mutt managed by a denomination has to adhere to the religious affairs manifested through the rules and then the real conflict is the propagation of a non-believer of his right becoming eclipse for the temporary period where he submits himself to the domain of the management of the affairs of religious denomination.

J Sundresh- In kerala, in some temples, you can't wear dhoti and you can't wear shirt and you can't say I want to wear shirt.

Vaidyanathan- take the case of ayyappa

J Nagarathna-we don't have that rigid system

Vaidyanathan- in Sabarimala, there is no distinction made that there is no bar to christians or muslim centric but they have must have faith and belief in the divinity of the ayyappa and they have to follow 40 day vratam and whatever practices enjoined on the believers. nobody is prohibited and therefore this concept has not been understood.

it is not necessary that religious denomination means the person has to belong to a particular religion- this is an erroneous understsnding

Vaidyanathan- we don't have a system of archbishops, pope, bishops and that kind of a theological structure

J Nagarathna: that means, in hinduism, hindus can belong to different sampradayas and can visit any temples. there is no bar, but if Hindus want to visit a particular temple, the sampradayas attached to that temple must be followed.

Vaidyanathan- in Shirur Mutt when refers to Oxford dictionary was made out and three conditions were set, this was not considered by the court to be mandatory requirement. this was only an extract from the dictionary. SG and ASG has placed about dharmic sampradaya.

the court didnt lay down a rigid test for religious denomination and the court didnt have opportunity ti refer to hindi translation. in the absence of that, they referred to oxford dictionary more considered with abrahamic religion