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

J Bagchi: do we attribute a juristic personality to denomination or sect like the hindu undivided

Dhavan: no, juristic identity would be with the idol-Mallick v Mallick-unique case where 3 brothers wanted to know where they should place their idols in which home and case was remanded to privy council.

J Bagchi: the thing that you say of overlap is definitely correct. many sampradyas will have practices overlap but when sampradya exercises its identity, it must be in the uniqueness of some religious practices that it manages which distinguishes it from other sampradyas

Dhavan: my quarrel with sabarimala is that they added a unique exclusive. 4 judges went in different directions to examine.

J Kumar: Denominational practice can be a subject matter of judicial scrutiny.

Dhavan: absolutely

J Kumar: when what happens to the content of article 26?where do you draw that line?

Dhavan: its for your lordships to draw that line, not me

J Bagchi: someone is a worshipper of god X, and there are temples worshipping god X, in this situation, a particular temple has certain unique practises. Will that temple having unique practises workshipping god X would be defined as a denomination and thereby exclusive with its investment of practice?

Dhavan: what it will require is a group of workshippers that have an identity and commonality of purpose

J Bagchi: commonality is to the members of the denomination but exclusivity is in relation to other denomination. so exclusivity test should also be there to define the denomination

Dhavan: its very difficult sometimes when there is an overlap of denomination. this often happens in syncretic faith

J Sundresh: the right to have an association or a religious denomination is a recognised right under the constitution. for instance, workshippers of lord shiva despite commonality, they can have individual groups

J Nagarathna: that is where sampradya becomes relevant. normally in marriage when you go to see a bride, you ask the bride's family or groom's which sampradya do you belong? All are hindus but you wan tto know whether they are a shivate. they are saying denomination means the system of religious practices vis-a-vis the particular deity, that is sampradya and that is protected under article 26.

Dhavan: sampradya is an easier word to interpret than denomination or sect. because once you get into denomination, you are back into Irish.

J Bagchi: someone is a worshipper of god X, and there are temples worshipping god X, in this situation, a particular temple has certain unique practises. Will that temple having unique practises workshipping god X would be defined as a denomination and thereby exclusive with its investment of practice?

Dhavan: what it will require is a group of workshippers that have an identity and commonality of purpose

J Bagchi: commonality is to the members of the denomination but exclusivity is in relation to other denomination. so exclusivity test should also be there to define the denomination

Dhavan: its very difficult sometimes when there is an overlap of denomination. this often happens in syncretic faith

J Sundresh: the right to have an association or a religious denomination is a recognised right under the constitution. for instance, workshippers of lord shiva despite commonality, they can have individual groups

J Nagarathna: that is where sampradya becomes relevant. normally in marriage when you go to see a bride, you ask the bride's family or groom's which sampradya do you belong? All are hindus but you wan tto know whether they are a shivate. they are saying denomination means the system of religious practices vis-a-vis the particular deity, that is sampradya and that is protected under article 26.

Dhavan: sampradya is an easier word to interpret than denomination or sect. because once you get into denomination, you are back into Irish.

J Bagchi: you say commonality need not be unique to the denomination then how do you distinguish one denomination from the another?

Dhavan: they will also be entitled to institutional right

Dhavan: [referring to the test of religious denomination]-what these judgments did was, they said you have to show exclusive distinctiveness. they said look there are so many Ayyappa temples, how are you distinct?the super-added fifth test that you are exclusively distinctive that was the mistake. Sabarimala must be overruled in this aspect.

J Amanullah- why does religion denomination include a religion standalone also?

Dhavan: it can be. if its a religion, you have to show a commonality that makes it distinct to have institutional rights because we are interpreting in the context of article 26. even a smallest tribal religion is entitled to be called denomination with institutional rights

Dhavan: I disgree with Singhvi's spatial argument separating right of entry. Justice Varale also asked. You go to a temple not just to the precinct, once you entry you to there to pray. the distinction is not spatial one. this has to be adjusted not entry simplicter. The question there was put was of choice, you can go to some other temple. that is not the point-I want to go to this temple, this is the most important temple. I have the right to go to any part of the temple and as possible as Vaidyanathan argument not to the inner sanctrum. That part of Devaru judgment is probably correct.

Dhavan- when we say subject to, its a very powerful statement and here I distance myself from devaru. he made article 26 subject to articl 25. It is a system of subordination and I belief it was not intended. Devaru said both are of equal importance.

on harmonisation used by Singhvi, if that is what mylords have to do you can pack up you things and go home. harmonisation is used when you have two provisions of coequal authority.

Dhavan: what will we do without article 26? will religions will be doomed. it is the most important right for the sustainability of religion across time.

would there have been christianity without the church? it is the church which is responsible for the continuance of Christianity. It is true of Islam and Hindus. It covers all faith.

If you don't give autonomy to manage religious institutions, all these institutions will fail. That is the important part of the word manage because if its a religious institution, you have to manage all religious autonomy.

J Nagarathna: you are in consensus with Vaidyanathan's arguments?

Dhavan: to an extent

J Baghci: will you agree that managing religious affairs under article 26(b) are congruent not on the individual or institution but on activity with the words freely, pratice propage religion?

Dhavan: I would not subject article 26 to article 25

J Bagchi: Managing religious affairs is the external expression of the religious beliefs and will there not be a congruence between freely practising, professing and propagating religion that is second limb of article 25(1) and managing religious affairs that is clause b of article 26

Dhavan: The important word is congruence, which may take colour from it without subjecting itself to that article because autonomy requires not subjecting

J Bagchi: if your argments is accepted then the subordination of individuals with the words 'subject to other provisions' as well as a more definitive with legislative enabling powers of article 25(2)(b) would be rendered nugatory by the individual professing the same right through the institution under article 26(b)

Dhavan: article 25 is unlimited in the sense the court can interpret whether its social reform or secular

J Bagchi: do you agree that when the legislature in its honest pursuit of social reform bring statutory reform it has impact on article 26. In case of conflict between individual and denomination with regarding to managing of affairs and professing but when it comes to state, if article 26 is held as a separate inasileable island it would become demit of reform

Dhavan: we have to integrate them