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

Rohatgi: some temples don't allow leather at all, you have to take off your watch, your belt so those are aspects of morality varying from religions and denominations.

Rohatgi: take dietary habits, hindu by and large don't eat beef and Muslims by and large don't eat pork. that is how it has wrong, nobody is right nobody is wrong. in some temples, you have to go bare chest and in Gurudwaras you must enter with the head covering.

Rohatgi: morality is to be viewed from the lens of religion-moral for some may be immoral for some, obligatory for some may not be obligatory. your lordships heard example of nagasadhu from Dr Singhvi who don't wear clothes. society has also accepted that this the reason for 1000 years and we don't shut our eyes and start abhorring if we see a holy man of digambhars walking naked in the streets.

Rohatgi: threshold of morality has to be for which there is legal phrase noscitur a sociis that morality will have the same threshold as its companions- health and public order. power of state to make law must pass the high threshold otherwise the content of article 25 will be emasculated.

Sr Adv Mukul Rohatgi(for association recognised by holiness syadna of Dawoodi Bohra faith): first issue framed is scope and ambit of right to freedom of religion- article 25(1) is subject of plethora of restrictions. it is subject to public order, health, morality. it is subject to other parts of Part III. it is also subject to article 25(2) on law can be made to abridge article 25(1). it is hedged by several restrictions.

Dwivedi: so classes and sections on account of peculiar history and connections with articles 17 and 15(2), this means only untouchables. this is also established by the fact that this is prequalified by throwing open. why do they say throw open because it was closed for them.. it is only referring to those classes and sections for whom the entry was barred. so the doors were being opened for them.

what is this-hindu religious institution of a public character- what is sought to be opened up? is it a temple or the institution itself? if this part of article 25(2)(b) is made applicable to article 26, then the very institution of religious denomination would become liable to be thrown open. it is not limited to temple. submission is throwing open of hindu religious institution is a matter of reform where the whole institution can be opened up but this won't apply to denominations. they can't be open up because they have to manage their own affairs under article 26(b).

Dwivedi:construe article 26 is a expansive manner and construce article 25(2)(b) in an expansive manner keeping in mind the context of the entirety of articles 25, 26, 27 and 28

in this context, kindly examine suppose article 25(2)(b) is made applicable to article 26 and the state could make a law under this, two question will arise: reform means social reform, it can't mean religious reform but more important is expression throwing open- this expression, under the GOI Act, 1935, there was a Poona pact between gandhiji and ambedkar there was an agreement that there will be reservation in services for dalits but no separate electorate. based on this, the GOI Act 1935 was passed. Scheduled Caste order 1950 was passed. there was a special feature why classes and sections- for every province, there was a separate schedule. it was not uniform class. this feature continues under our constitution where the president issues nofification about the scheduled caste and scheduled tribes list

J Nagarathna: if the issue arises, the state has to justify it on the basis of article 25(2)(b). the burden is on the state just as article 19(2). it is not violative of fundamental rights because its a reasonable restriction

Dwivedi: whatever legislation is permissible, it is indicated in article 26(d) that is administer such property in accordance with law. they are certainly make a law for immovable or movable property.

how do we bring in article 25(2)(b)-unlike article 25(1), article 26 doesn't use subject to other provisions and also nothing in this article under article 25(1)-in the constitutent assembly debates the expression initially was that 'consistent with other parts' phrase was there [in the report of the sub-committee on fundamental rights]-this was not accepted.

Given this position, article 26, the rights can't be eroded and made subject to article 25(2). property can be regulated but article 25(2)(b) will not be attracted. even if we consider that religious denominational is also associational and also exercises freedom of religion, which is encapsulated in article 25(1), and since that right says subject to, even so the question will be how to apply? its an enabling power and here I submit that devaru has gone completely wrong when it says that articles 25 and 26 are of equal authority and need to be harmonised. I am not aware of any cannons of law where a fundamental right would be required to be balanced against the power of the state to make laws

Dwivedi: there is only one ground on which there can be interference which is morality because we had experience of sati or dasi pratha