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

J Sundresh: what is required by the court, the challenge will be only when the law has been created or where there is a vacuum...there is no need for essentiality, you will have to see where whether religious practice is there or not.

J Nagarathna: the court cannot sit in judgment as to what is an essential religious practice. well, the sabarimala controversy arises out of that can the court discover or distil and sit in judgment

J Sundresh: concept of essential religious practice, as you rightly said, if it exists, its renewed to the benefit of either a religious denomination or a group of persons seeking rights under article 25(1). when it comes to judicial review, article 25(2)(b) can on contigency be exercised over religious practice. that is why the distinction between article 25(1)(a) and (b). your argument is that you can still go and satisfy yourself by the court on the existence on the existence of essential practice preliminarily from the point of the view of the practitioner or the person who has that belief so as to exercise the power of judicial review in which case it will be a little more circumspect.

J Nagarathna: there is no need to go into the test of essential religious practice. An impression has been created that its only essential religious practice that has to be protected and nothing else.

Subramanium: this is, if i may say so, if the judgment suggests and I will not personally think they go that far to suggest that if its not essential religious practice, it denigrates into a non religious practice or will become a pratice capable of regulation. I don't think any judgment goes that far. But I would submit if essential religious practice is intended in aid of discovering the true components of that particular religion

Subramanium: the only reason why J Mukherjee [in Shirur Mutt] upheld the hindu endowments and charitable act was based upon the fundamental principle in hindu law thar donors foundations and his benedictions and his dedications must be truly honoured. that is, all that which comes out of that property must be ploughed back. It was evolution of the doctrine of trust and when they found that the traditional laws dealing with administration of trust was insufficient, there felt the need to address the need for the deity to whom a dedication has been made and a shivate must have in honesty in aid of an endowment became principles what sustained the law.

but under the guise of regulation, what was being attempted was actually to [takeover] the management of the temple, then its completely unconstitutional. while madras HC in shirur mutt struck down all provisions. J Mukherjee noticed section 92 of the 1951 Act, which clearly says no powers which will be exercised will interfere with the rights granted to denominations under article 26 of the constitution. This is the peaceful coexistence. when he founded that he trepassed to article 25(1) or denuded and couldnt be justified under article 26(b), he struck down all those provisions.

ubramanium: your lordships must have a tool by which we are able to deal with it. that is why mylords in two of the judgments employed a test, which is also correct, because you cant have a one line test, there are multiple factors. you can use the test of an obligatory act and then it becomes central to religion. I am giving am example from the decided case of Chief Justice Das in Hanif Qureshi's case where he referred to a certain act not being obligatory. Justice Ray to

Nariman's judgment, where he said that a certain act is not treated as an act commendable, exalted by scripture and therefore it can't be treated as something integral.

So the words integral and essential need not cause, if i may say so, any kind of turbulence or interpolation as far as dealing with the questions concerned. mylords have very firm terra firma to deal with this question. And only point where I see and support all my colleagues is in the matter of extent of personal faith and expereicne which a person and individual worshipers has, that is not the area of inquiry.

Subramanium: the true meaning of the word religious in etymology is to bond.

J Bagchi: isn't it spirtual experience?

Subramanium: I am hesitant to use that word because its within the inner realm of experience

J Nagarathna: so once the boundaries of a secular activity associated with a religious practice is identified, all other things are religious

Subramanium: all other things are religious but I will tell you where this essential religious practice may be of relevance. all mylords judgments have been written with reflection and the evolution of essential religious practice is in the context of dealing with claims based on religion which may not belong to religion at all, but are being masked, or clothed with as being religious under the mask of religion.

J Bagchi:since you are positing the intra debate in a denomination in article 26(b) instead of, let us say article 25(1) or 19(1), you would put this in the word manage which would include internal dialects. we have to interpret the word 'manage' and manage means debate over the affairs

Subramanium: yes, its perfectly consistent. such debates have taken place. we have so many schools of philosophy in one faith. you have nyaya,etc. you have different schools. the limited pictures we are getting from these judgments about certain temples where certain angamas had to be followed, doesn't actually give a complete picture because when we deal with article 25(1) and 26, we must know all four aspects- religious doctrine, practice of that doctrine, external manifestation

J Varale: you rightly said that article 26 has a scope for deliberation, discussion, a healthy exchange of views between those following the denomination. [quotes something]. This is the scope to where we can certainly put our views, have discussion and that scope is there.

Subramanium: Certainly. That has to be located in article 26 because we are not looking, shall we say, at an inert denomination, we are looking at people who would have views and this is a process of interaction. when we are looking for even a transcedental interaction, in that process, you are likely to have human interaction and something they can be collective worship as Justice Sundresh said.

Subramanium: it is clear that the framers were aware of the administration of endowments, they preferred. and they were also clear that they want article 25 to be an article of a universe giving absolute maximum freedom subject to public order, morality and health. At the same time in order to see that the right of practice and propogation, you needed a denomination and it must have an ability to acquire property. And it must also be able to establish and maintain an institution.

Article 26 is simply not about management.the concept of management, maintaining and establishment an institutuon and also regulating affairs in matters of religion come under article 26(b). I am urging that nothing is non-justiciable, the only area of non-justiciability is the devotee's faith in a certain philosophy or towards a certain deity. it is completely different from a secular scrutiny. so if we stay within the constitutional boundaries of articles 25 and 26, then I say, mylords are not precluded in any way or by any manner to inquire and determine what is the religion, what are its basic tenets, and how is this religious faith asserted.

Subramanium: article 26 can't actually have what is called as a sui generis existence without walking through the gate of article 25 and the intention to form an organisation in aid of practice and propagation.

the word denomination is not necessarily a subset, i said entire faith is comprehended. but when I say even subsets are comprehended, when I say whole faith is in the denomination, then even those who are sections are also identifiable under article 26(b). Shirur Mutt and other will not come under sections and will ger same ability to assert rights under article 26.