Sabarimala Reference | Live Updates From Supreme Court 9-Judge Bench [Day 7]

J Nagarathna; this is serious

CJI: this is not with reference to one individual matter but as general principle of law we would like to examine whether the court in exercise of article 32 or 226 is in a position or competent to revisit a judgment by assuming the power of review or recall

J Nagarathna: who are the writ petitioners?

Advocate: I am appearing, I will argue my case

J Nagarathna: where the judges themselves refer 10 questions, there is no writ petition files. You can't go on like this, filling writ petitions and challenging judgments of this court. there will be no finality. In Antuly, two judges questioned five judges and raised 10 questioned. the matter was referred to 7 judges and by 5:2 the majority held that two judges were correct and set aside the five judge. that is different from this where parties go on challenging, where is the end? what is the status of earlier judgments then? it has no finality. we are on practice rather than on law.

J Nagarathna: recent case we dismissed it was a lost of 1 lac, five judge pramathi was challenged in an article 32 petition. we didn't recall the order. such a practice can't [inaudible]. there will be no finality then.

J Nagarathna: does the principle of res judicata not apply? we once again go to the correctness of a judgment

Kaul: I completely agree but I am here because I have been sent here

Kaul: explains the background- five judge upheld ex communication, and then a writ petition came to be filed in which seven judge bench was constituted

J Nagarathna: how is the writ petition maintainable

Kaul: that is being our argument

J Bagchi: basic issue will be whether ex communication, banning of ex communication by the legislation under article 25(2)(b) was be valid or not which in Syedna was held to be invalid. If we hold otherwise, we may hold syedna view to be incorrect. so whether it has been challenged by way of an article 32 or not doesn't really become very relevant. it would be relevant whether our interpretation of article 25(2)(b) would be in relation to article 26(b)

Rohatgi: on ERP-mylords have said don't enter a political thicket, I say don't enter a religious thicket to decide what is essential practice.

Sr Adv Kaul (for Syedna of Dawoodi Bohra): how we came here is, original judgment of 1962 where maharashtra legislation was challenged, and 1986 came a writ petition which challenged the judgment of constitution bench. in that writ petition, first a 7 judge bench, which we objected, and then 5 judge was constituted. the 5 judge sent a reference saying that issues 3 and 4 have direct bearing because balancing of rights under article 21 and whether constitutional and public morality overlaps

Rohatgi: on issue 6-whether the rights of religious denomination under article 26 are subject to other provisions of part III, apart from public order, morality and health- it is my submission that article 26 doesn't have any other restriction except the opening. if you import restriction of article 25(2)(b), as devaru has done, you are adding a restriction which the constitution didn't restrict by no process of interpretation

Rohatgi: rights of persons are in article 25(1) and the question framed by mylords are interplay between articles 25 and 26, and whether article 25(2) is inroad on article 26 is not the question framed.

Rohatgi: constitutional morality has no place in creating a restriction, the moment you add constitutional morality you are either expanding or adding another restriction. i have seen the debates, dr ambedkar use dit very infrequently. what dr ambedkar meant was constitutional morality would be the spirit and not a restriction. for instance, article 356- when you examine this and power, you will keep the constitutional ethos in view that we don't dismiss constitutional governments like that.