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

Dhavan: on Article 25(2)- "nothing in this article shall affect the existing law"-ladyship asked if it includes custom- it has to.

what does 'nothing in this article' means- it means everything. it means individual rights can't stand in the way of social reforms. you can't come up and say that under article 25(1), I have this right and this reform is not acceptable to me. Otherwise entire provision of article 25(2) would be negated.

But why was all this business of other provisions not included? you can't come and say that look I am not interested in social reform, I will to go to equality, untouchability. If social reform has to go forward, the individual under article 25 can't come up and say social reform is not acceptable to me and I am relying on Part III.

on secular v religious practice- Devaru made a mistake when it said we will make article 26(b) subject to article 25(2)(b). On social reforms- the question is-is it really social reform or a hoax? Article 25(2) will be negated if we connect it either with article 25(1) or connected to article 26.

on article 26- it concerns institutional rights. can you imagine a religion without institutional rights or property rights? without this, no religion will survive beyond six months.

Dhavan: Today we celebrate Jyotiba and Savitribai Phule-they sought to reform like Dr Ambedkar.

J Nagarathna: are you saying conscience is something larger than religion? conscience should take the colour of religion?

Dhavan:it could or it could not. Now, 'subject to other provisions of this part'-fundamental rightly are normally classified as liberal egaliterian rights which goes from article 14 to 22, then anti-exploitation rights and cultural rights. Take article on untouchability- it stands on a separate footing of its own. in other words no court, no religion can flout the dictat of article 17. Articles 23 and 24 are universal dictats and therefore they stand on a different footing.

J Amanullah: you said freedom of religion and conscience has a very wide proposition. Are you hinting that as judges or as constitutional courts, religion and conscience can't be equated religion may be very personal to be but when I have to judge, I have to raise above the religious consciousness to a level where I have to balance it with constitutional provisions and see the larger picture emerging from that.

Dhavan: your lordships have to interpret consciousness There was a very nasty article written by an english professor 'Why did a Mohammedan Judge decide a Hindu question or a Hindu decide a Mohammeden question'- when your lordships are judges, your lordships have personna of your own.

The reason I mentioned this because freedom of conscience is mentioned separately and therefore two rights there.

Dhavan: Chandrachud J took the view that excluding women was a form of untouchability under Article 17 which was not agreed to by the majority (Misra CJ, Khanwilkar, Nariman JJ) and negated by Indu Malhotra J on the ground that places of worship were excluded from Article 17 by the Constituent Assembly.

A seemingly new test on essential practice was whether denying a practice constitutional recognition would alter the religion-its a too narrow test

Chandrachud J. took the view that balancing religious practice against the public interest could be a question of proportionality for compelling reasons in favour of anti-exclusion outright, so as to make the Court free from examining the tenets and belief of religion. The other majority judges concentrated on denying constitutional protection to the exclusion as an essential practice which was Chandrachud J’s alternative argument.

Nariman J referred to Ayyangar J’s judgment in Sardar Syedna, which interpreted Article 25(2)(a)(b) so that ‘such welfare and reform was not intended to ‘reform a religion out of existence or its identify’. However, although relevant, he ‘felt that this view could be tested in some future case’

Entire discussion over the last 4 days is decoding article 25 and 26 but I belief Article 27 and 28 is also important.

Refers to Article 25(1)- when we say freedom of conscience, we are raising a very big issue. I have a freedom of conscience to challenge anything-State, religion. This right is a very expansive right-it is a right given to all of us to question anything but respectfully and in a bonafide manner.

On I come to the term freely-a person belongs to a particular faith, he is a decident. Hinduism shows there is a plethora of people to freely take a distance from the main religion. They will say freely means my right to follow a religion or not follow a religion or there is something wrong with your religion- [cites Kaushal Kishore's parameters on hate speech].

@rdhavan

Dhavan: reads SP Mitthal- what mylords decide will affect tribal religions too. Refers to a statement made by J Dwivedi in Keshvananda Bharati. I say that faith evolve and change overtime. That change doesn't come by statute alone but it comes from people. Ex was given that women becoming archbishops. We can go after doing social reform after social reform but if it has no meaning with how it comes with people, we might be missing the woods in the trees.

secular framework of India-the followings were rejected by the constituent assembly- "in the name of god", "in the name of god/almighty/Mahatma Gandhi/Grace of Parmeshwar..." all this was rejected, we have a secular constitution.

After Partition, Constitution was a solemn promise to heal a diverse India. A question fell from mylords to as if this happens, will be divide the society? healing is very much in your hand on the interpretation of articles 25 and 26.

I will address the question which ladyship asked-what is the connection with Sabarimala? J Khanwilkar, who was with the majority [in sabarimala judgment] changed his mind. Justice Gogoi replaced Justice Mishra [who authored the sabarimala judgment] and J Indu Malhotra become the majority are those responsible for this reference.

In the earlier judgment, while Misra CJ, Khanwilkar and Chandrachud were of the view that the exclusion of women prayer was not an essential practice, Nariman J proceeded on the basis that it was an essential practice and thus concurring with Malhotra J.

On the meaning of morality in Article 25-6, while Misra CJ, Khanwilkar and Chandrachud JJ were of the view that morality meant ‘constitutional morality’ (based on liberal egalitarianism) Nariman J felt this meant it was something abhorrent to a civilized society. Justice Malhotra took a different view on constitutional morality to reinforce secularism and need for religious freedom.

Chandrachud J insisted that ‘other provisions of Part –III’ was also applicable to Article 26 which did not contain such a phrase, thus defying the text. Nariman J held this was to be determined on a case to case basis.

A crucial question related to whether the Ayyappan practice in this case was a denomination or sect. If not it would deprived of the institutional protection of Article 26 altogether and confined to Article 25. Malhotra J’s dissent illuminates a different view.

Sr Adv Rajeev Dhavan begins his arguments.

Dhavan- It is our submission that the decision should not be case by case basis as certain principle needs to be laid down. Certain questions fell from mylords especially ladyship whether essential religious practice is a juristic invention.J Amanullah asked a very important question if you have a superstitious belief which has an external manifestation then can be say the external manifestation is not subjected to judicial review. J Sundresh asked if logic applies to belief.

J Varale asked an important question to Singhvi that you can go to any ayyappa temple. Now if its a question of choice and if there is one temple which has significance, then its not a question from going to one to the other.

Mylords are not just protecting hindu practices, the concern is to lay down the law for every belief, every matter of conscience.

I have to raise five questions-

1. The indian constitution was designed for a civilisation state, if you take other continents, we have diversity far greater. I would say its a constitution not for a nation but for an entire civilisation, multi-civilisation state which guided the 11 judge bench in TMA Pai.

Reads TMA Pai

Venkatesh- On sampradya- all persons in article 25-person is heavily defined in Income Tax Act. But when it comes to constitutional issue of sampradya, it is a person. lineage itself has to be revered as a person and that is our connectivity to our ancestors and giving it a protection under article 26(b) is non-negotiable.

From the hindi text of the constitution, it would mean 'i am here, I am propounding a sampradya' and that is where it is unique to my temple. the constitutional framers could not have pitched it so high that 95% of out the 40,000 temples in Tamil Nadu do not fall under the definition of denomination and are public temples.

on 'sections of hindus'- sect is defined in Shirur Mutt. In this connection, I had the privilege of getting a small note from Karki Mutt [reads it].

Rule 6 of the Travancore Cochin temple entry rules: this is not regarding sabarimala but all temples in south india primarily when the women undergo a monthly biological process voluntarily by their own discipline they don;t enter temples. this is a non-written rule even in the house they don;t enter the puja room. This is my belief, I can't give a scientific explanation but when science ends belief begins. This is practised as a discipline by all ladies or most ladies in South.

Venkatesh- a charity is per se secular but religious charity would fall under religion only. what has happened we have expaned the scope of religious charity to bring it again within the ambit of charity and then say its a secular affair.

judicial policy has to be evolved that once it enters religious thicket, the charity per se, it should be protected under article 25(2)(a). On article 25(2)(b), throwing open to all classes would include every castes and communities. As a section of hindus, I regularly go to Sabarimala. Typically in a hindu religion in a yatra, all caste and community dissolve and it becomes section by. When we go to sabarimala pilgrimage, there is no caste and class, there is only one thing that sustains that is lord Ayyappas section which comprises of all sorts of devotees.

sections of is used for hindus intermixing of all classes and that should not be immobile. It means any section of hindus is allowed to enter a temple but when it comes to article 26(b), it is only to manage its own affairs.

for instance, several people come to watch supreme court proceedings- its like [temple] being thrown open but the registrar maintains and actually runs the affairs of the supreme court from administrative side. whosoever enters can't say by virtue of article 26(b) that I will manage the affairs of the Supreme Court.

Denomination is protected from management but everybody must be allowed and Devaru is a good law as far as temple entry is concerned. Article 26(b) must be allowed so that every distinct denomination or section must be allowed to move from one temple to another. as far as management is concerned, is must lie with the denomination and that must be protected.

Correction: counsel's name is MR Venkatesh

Venkatesh: [reads Ambedkar's speech] Ambedkar clearly made a distinction between untouchability and temporary defilment and I though was lost by the Sabarimala judgment which is core and arises from speeches of ambedkar.

I will merge questions 1 and 2- if mylords come to conclusion that scope and ambit of freedom is sky high, to that extent intervention becomes limited.

Article 25(1), I have no problem because we have given committment for human rights. Article 25(2)(a) only permits secular activities and does not abridge in its operation the core of the religion. Any law under the guise of regulating activities associated with religion identify ERP abridges religious freedoms and would be violates of article 13(2)

article 25(2)(a) contemplates an intervention into a secular law, where religious practices and its issues are in periphery. For instance, the words are political, economic and financial. Electoral law, is permissible. But we have turned the whole urgent upside down. We started reading religious law in association with secular practices. then brough religious practices into the corner by defining what is called as essential religious practices.

Sr Adv MR Venkatesh: controlling inquiry under article 25(2)(a) is whether the intended law predominately secular and whether its application to religious setting is incidently or is it that its religious in character and incidental in secular nature-should it be absolutely non invasive?

Sr Adv MR Venkatesh (Atma Trust): the word religious practice under article 25(2)(b) and religious denomination under article 26(b) are undeterminative and is not capable of being defined.

the word denomination can be traced to word denomitanous in Latin language which allowed the word denomination to be rooted to a particular denomination in Christian and was adopted by Irish Constitution. Huge foreign roots and have limitations in our understanding.

Article 25(2)(a) &(b) have no international precedence and are sui generis and are tailor-made for the Indian Constitution. If there is a definition of denominational temples and certain class falls, what happens to non-denominational temples? Do they have no right? All this becomes a sort of public place equated to a bus stand where anybody can enter and exit.

question I will ask myself what is free, what is freedom of conscience etc? secular state which basically seek to trunket religious freedoms in one way or the other, apart from article 25(1) goes against basic structure doctrine.