Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench [Day 6]

arguments to continue.

Subramanium: I take the position that article 26 is necessarily subject to articles 25(2)(a)&(b). That is the only way to read. Article 26 is not a standalone article which can survive without reference to articles 25(2) a and b. So a denominational temple can be subjected to a social reform law, a denominational temple can certainly be subjected to a law by which gates are open for all clases of hindu.

J Sundresh: example how all denomintional temples would come under the purview of article 25(2)(b)

Subramanium: public institution for worship can even mean denominational temples

J Sundresh: could there be a denomitional temple which is not a public institution, it may be hindu but not public institution

Subramanium: unless its a private temple dedicated to the members of a family

J Sundresh: unless you define and tell us what is public character, can you say that every denomination would come under purview of article 25(2)(b)?

Subramanium- the legislature wanted to do away with calling out people as excluded classes

Subramanium: this is the decsion of devaru and that decision is really based upon an interpretation of article 25(2)(b). Once the denominational temple is a hindu religious institution of a public character, by the temple entry authorisation amendment act 1949, the temples were laid open to all sections of the public. the context of shirur mutt and devaru are differentl what was in question in shirur mutt was the hindu religious charitable endownment act itself. in devaru, the context of the challenge was the temple entry authorisation amendment act. Please bear in mind that the act which existed prior to 1949 used the word excluded classes

Subramanium: what does hindu religious institution of a public character mean? it is a very important question. this includes temple, and I submit it includes even denominational temples. denomitional temples are for a section of the public and even if they are dedicated for a section of the public, even then they are a hindu religious institution of a public character.

Subramanium: in this context, justice mukherjee says there are two kinds of temples public and private. the reason why institution was used is because you could have mutts and you could have temples.

Subramanium: therefore, in shirur mutt, one must be familiar with the law relating to the hindu religious and charitable endowments without that, it would be difficult.

your lordships will find religious and charitable are put together because of the nature of a religious endownment. Expression 28 in List III refers to religious and endownment. Four expressions mylords will come acrss, one is idol, and second is devka, the property associated with the idol. Third is Shivaite and fourth is archakas. in relation to all of them, the rules of succession are different.

Subramanium: but the way the shirur mutt has been interpreted as if you have to belong to a known school or a known school within the larger canvas of the hindu faith which is either supported by the expression samprayada, is not very accurate. all temples in India are quite different and they vary totally- temples in the north India are completely different from the temples in east India, or South Inida. So, I am submitting that we will need a slightly broader-based understanding of the word denomination.

and if its broadly construed, it doens't offend anybody. it only guarantees equality to all religions. In other words in a religious denomination, that people who belong to the faith and who come together for the purpose of practising religion in the form of endowment, in the form of a trust, through erecting an edifice of learning praya, they would qualify for denomination.

Sr Adv Gopal Subaramanium begins

under our constitution there is separation between the state and religion, that is the correct submission I support Solicitor General

the extent of state control by way of reuglation must be minimal and must be narrowly tailored to meet certain objectives

position relating to articles 25 and 26-necessarily they apply to all religion and therefore the quesiton that arises- the true meaning of expression religious denomination-whether it is religion specific or applies to all religion

Article 44 of the Irish constitution was the bedrock, shall we say, the drafting committee looked at it

when one looks, it uses the word religious denomination in the context of catholic chruches, the Anglican Church, Jewish congregations, and other religious denominations.

so one possible interpretation which your lordships have to consider is considering all constituent assembly debates-was there a need and a way to put to put religious denomination separately instead of using article 25(1). In other words, is article 25(1) the general principles for all persons. they are entitled to freedom of conscience, religion and they can freely practice, propagate religion. but when you see the words in article 26, every denomination, unless we want to give a restricted meaning to the word denomination, it must mean every religious denomination of whatever kind

the way shirur mutt has been interpreted over the years requires some course correction

what is the meaning of the expression denomination? if the word means adherence of a religion- it still can constitute a religion. if you follow a religion and you come together and organise yourselves, you could well satisfy the three test criteria as per J Mukherjee's judgment and would constitute a denomination

Deepak: [reads the written submission]

J Nagarathna: Shirur mutt was in debt and question was that you require so much money and when you have 1 lac debt, the debt in those days was very high, so when 1 lac in debt and you want to spend so much in paryaha. whether the extent of expenditure was the question and there was an inquiry and all that ultimately they said make a scheme and that scheme was challenged

there was one praticising advocate, he wanted to take control of the mutt because the matapadi was a minor and he was very young. He through his friend got a power of attorney and he started misuing that power of attorney. there was a suit, the power of attorney was terminated...and when there was a suit, all this happened because the advocate there managed to do all that