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

J Bagchi- if a sampradaya has various rights and customs, and as you will find in all religions there are mandatory customs, there are directory customs. Now mandatory and thereby essential and some non-mandatory thereby non essential, do you say the idea of essentiality of customs to the very ethos of the tenet will not be a relatable factor

Nataraj-the constitutional text doesn't recognise or employ the concept of constitutional morality and therefore importing such a standard would amout to judicial overeach, role of courts limited to examine whether the rights violate part III

nataraj- it is a mechanism to regulate Articles 25(1) and 25,

J Sundresh and J Nagarathna- please don't say that it controls, its enabling

CJI- I think this may be purely an academic debate because there is no conflict between articles 25(2) and 26 which might require any harmonisation.

what is 25(2) is regulated by three constitutional conditions unless somebody make out an exception, everything is permissible

J Nagarathna: when it comes to between the state and the denomination, there is a conflict between between state's right and right to denomination, possibly the question of ERP comes in, and what is protected is essential religious practice of that denomination, otherwise article 25(2) reform will never happen- everything cant' say it is my sampradaya-what they say is ERP of that denomination and if reform is required, the state can legislate

J Bagchi- this will also come to play when, let us say, a non-believer who is also a having conscience of non-belief say my right of conscience is in conflict with your sampradaya, where a non-believer can also bring into questions the matter of religious of particular sampradaya...there can't be exclusion of courts

J Bagchi: there the court necessarily require

nataraj- on the basis of evidence

J Bagchi-because of Section 9 of the Civil Procedure Code any question where there is a divergence or conflict, it requires to be resolved through the process of adjudicatory mechanism. To say that this can't be answered by the court appears to be a very...the sampradayas right to define itself or its religious practices but what happens when sampradays right as to the religious practices are themselves under challenge- that a. you must have a fast because you go to temple b. or pray in a particular manner

nataraj- when there are competing groups then based on evidence

J Bagchi- I am on forum, the forum is nothing but the court and there it has to be necessarily decided as a matter of issue that this is a sampradaya and it had a particular religious practice and this is the religipus practice and what you are attributing to it

nataraj- when it comes to judicial scrutiny as to whether a particular sampradaya is correct or not or followed or not, it can't be assessed by a external body

J Bagchi: Mr Nataraj, nobody says that at the first instance the court decides what is a sampradaya or what is religious practice or matters of religion administered by sampradaya-courts come into question when there is a conflict in fact as to when a group says there is a sampradaya or other says its not a member of sampradaya says its not a form of worship

nataraj-what constitutes a religion- form and manner of worship, characteristics attributed to deity, and observance and customs that defines the religious practice

J Nagarathna: The beauty of hindu religion is that there are many parts unlike other religions where there may be only one parts and here there are many parts and therefore many samprayada