Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench [Day 5]

Dhavan: Sabarimala introduced it as a limitation. if its not a limitation then its fine. its a value which we must imbibe. So if we limit it to whether constitutional morality is a limitation or not, our task becomes easier.

Dhavan: refers to manoj narula case- Mr Dwivedi argued that if you have constitutional morality, the PM should get writ of corrupt ministers. court replied that its not a question of constitutional morality, its a question of constitutional trust. J Dipak Mishra's earlier view was to go under constitutional trust and not morality as he picked up later.

Dhavan: “Are constitutional values underlying the Constitution also modes of limitation on the rights and powers granted by the Constitution in addition to the limitation imbedded in the Constitution in respect of Fundamental Rights”

The narrower question is whether such values can be read as limitations to the freedom of religion provisions using the term ‘morality’ in Article 25 and 26 as a vehicle to incorporate such limitations.

Dhavan: on morality-as citizens we must have constitutional morality but when it comes to officers and state officials, they must have institutional morality also.

J Nagarathna: so there must be a belief but rationality or otherwise can't be gone into? it can't be a matter of judicial review?

Dhavan: no

Dhavan: There is a need for threshold test because then anybody will come and say this is my religion. Refers to Bijoe Emmanel-you must have a belief and it must be held bonafide.

refers to england case: R. (Williamson) v Secretary of State for Education and Employment: “When the genuineness of a claimant's professed belief is an issue in the proceedings the court will inquire into and decide this issue as a question of fact. This is a limited inquiry. The court is concerned to ensure an assertion of religious belief is made in good faith: 'neither fictitious, nor capricious, and that it is not an artifice', to adopt the felicitous phrase of Iacobucci J in the decision of the Supreme Court of Canada in Syndicat Northcrest v Amselem (2004) 241 DLR (4th) 1, 27, para 52.

But, emphatically, it is not for the court to embark on an inquiry into the asserted belief and judge its 'validity' by some objective standard such as the source material upon which the claimant founds his belief or the orthodox teaching of the religion in question or the extent to which the claimant's belief conforms to or differs from the views of others professing the same religion. Freedom of religion protects the subjective belief of an individual. As Iaccobucci J also noted, at page 28, para 54, religious belief is intensely personal and can easily vary from one individual to another"

Dhavan: on superstitious beliefs- I personally believe they are protected subject to what Justice Amanullah said that if there is an external manifestation of it, like witchcraft or prostitution, that certainly is not a part of superstition. the reason why superstition has to be recognised is because all religions will disappear if you subject them to logic of scientific discovery.

the test of scientific discovery is given by Karl Popper's verifiability. Can you verify if god exists? Can you verify if you have his diksha?

therefore, superstitious belief has to be accepted across the board.

J Nagarathna: are you a votere of essential religious practice

Dhavan: I am not, its a very dangerous test and it gave a lot of problem and it will continue to give.

Dhavan: reads Shirur Mutt "The learned Attorney General lays stress upon clause (2)(a) of the Article and his contention is that all secular activities, which may be associated with religion but do not really constitute an essential part of it, are amenable to State regulation"

the court rejected. the courts were meant to respond to it but they rejected.

J Nagarathna: what happened in sabarimala?

Dhavan: they said its not your essential religious practice

J Nagarathna: that was the basis

Dhavan: Absolutely. its a threshold argument, you go after not after the argument but right at the beginning.

Dhavan: now I am going to answer, where did this term essential religious practice come from? the problem with this is that its a threshold question, if you can't prove the practice, you are out.