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

Sundaram: which is where the question of the essentiality test, I am unable to understand. why? if its a religious practice and with freedom of conscience, which doesn't trample on somebody else's toes, i can follow my religious practice. the moment we say essential religious practice, it becomes a question of fact, and that is left to the courts to decide on an ecclesiastical matter which we say we will not do. it becomes a jury questions, is it essential or is it not?

at the same time, we say the courts will not enter into ecclesiastical matters. so this concept of essentiality is not relevant. what is relevant is the concept of whether it is in a form of religious worship that is all. Whether its a form is found either in the shastras or through long custom or through long usage, or in a manner in which a group of people want to worship the deity

Sundaram: A temple is really a board of a particular deity. it is where a deity in the form we want to worship that deity is. for example, Ayyappa has various forms and each temple worships that deity in that form, treating it as a home of the deity. for example, guruvayoor, while it is Krishna, it is krishna the child. the entire religious feeling is towards the deity in that form. to that extent, please consider my primary submission, a temple a religious institution is really an aboard of the deity.

Sr Adv Aryama Sundaram(President of VHP Kerala and General Secretary of Sabarimala Karma Samiti begins.

Sundaram: before I begin, I want to answer your ladyships one question on what is conscience-in my understanding, it is a moral compass within which each one lives.

CJI: I think the issue stands quite well debated. Part III is am embargo on article 25(1) on individual devotees rights that you exercise article 25(1) right, you have to respect Part III also. So far as social welfare or reforms are concerned, its a very wide term and the State is not a stranger or it is not an alien. State represents the will of the people and if the people want certain social evils to be reformed, probably that power can be exercised. But its very difficult for us to lay down any future guidance, it will always depend on case to case as to whether the reforms fall under article 25(2)(b) or it in the name of reforms it amounts to something which amounts to an infringment of a religious practice.

Subramanium: I will therefore say that under article 25(2)(b), social welfare and reform laws are capable of a wide expression, but they must be honestly falling as social welfare and reforms and they must not also eviscerate the right of the denomination under article 26.

J Nagarathna:for example, if a religious denomination believes that a lady who becomes a widow has to commit Sati and therefore, Sati must be abolished in the context of Article 25(2)(b), it can't be considered to an invasiton of a religious practice. we are giving you extreme examples. so social reforms will prevail there.

J Sundresh: how do you define social welfare or reforms? the question is only with respect to this, article 25(1)(a) says subject to public order, morality, health and subject to other provisions of this part, if you juxtaposed that to a religious denomination which you said is nothing but a collective of belief...can it be said that the power of the state to pass a law is confined to issues of due compliance of part III alone because anything else is not restricted to article 25(1). is it the proper way to look at it

Subramanium: my submission is part III is not available as a ground for legislation under article 25(2)(b) and nor is it available under 25(2)(a). 25(2)(a) &(b) may occupy territories which may have some, shall we say, idealistic overlap but the legislation can't be done with reference to Part III because what happens in article 25(2) is that it lifts and enables a legislation and it also removes the subjection to part III

J Sundresh: what if a religious practice directly comes in the way of other provisions of Part III? what will the State do

Subramanium: it depends on case to case basis

J Sundresh: under what provision of law will the state can assume

Subramanium:if a law has to be passed with reference to the opening part of article 25 or shall we say, opening part of article 26,you already have three grounds which are available-public order, morality and health. what article 25(2) does is-subject to other provisions is in context of protection and equal rights of religion which are granted to others. but I am saying anything that will come within the reasonable extent of social welfare and reform will pass.

a violation of fundamental right may acquire, shall we say, the appellantins and attribution of a social evil which needs to be addressed under article 25(2)(b), then legislature necessarily has that power.

Subramanium: that is why I am saying, please treat that there is an element of automatic strict scrutiny when you come to the words in clause b because you are passing a law to invade religious freedoms.

J Nagarathna: conversely, such a ban is questioned in a court of law, can the ban is struck down that it is not an essential religious practice?

Subramanium: it can be. that is why, please don't throw away the idea, please don't jettison the essential religious practice. but i will tell you how useful it is. J Gajendra in Dargah Committee, he was a progressive judge but also profoundly learned, he said don't allow anything extraneous (he used the word superstitious) to come into religious faith. it is completely unobjectionable because when a religous right is asserted the court will take care to see its a valuable religious right which is asserted.

Subramanium: let us take the example of superstitions or practice which are abhorent t constitutional morality , legislature can interfere on the grounds of social welfare and reforms. so its not that social welfare and reform is very limited.

J Bagchi: word is social reform and directive principles are constitutional visions so will the constitutional visions of the state be a part of social reform

Subramanium:very profound question, if you look at the preamble, there is coexistence of justice: political, social and economic.

J Baghci: why I am asking is we are delving on the question of constitutional morality vis a vis public morality. now if we are trying to eviscerate the two or differentiate the two, so when it comes to legislative competence of making inroads should we again make compartments between social reforms and constitutional reforms through enforcing visions as envisaged in Part IV as fundamental duties

Subramanium: mylords have said that constitutional morality could be conscience of one person but someone else may have a different standard of morality to judge it. as far as constitutional idelogy and assurance is concerned, its relevant for the state. if this freedom has to be preserved as a part of the basic fundamental freedoms which are integral to the basic structure, this freedom of religion and conscience which is inherent, then I am afraid we will have to read the power of legislation very strictly. And it must be able to establish a direct nexus between the need for that reform and the objective sought to be achieved by that legislative to accomplish that reform. otherwise, mylords, article 25(2)(b) will be completely overarching, or shall we say, it will be a silent inroad into religion

J Nagarathna: yes. suppose the kerala rules would have said in the name of social reforms, the entry of women between the age of 10 to 50 to the temple is permitted, is it an invasion or could we say its not an essential pratice and therefore upheld. what is the extent of invasion there?

Subramanium: even in that case, your lordships would have to be satisfied and would need to undertake an inquiry to see whether the exclusion as a part of ancient tradition, custom or usage 1. did not fundamentally take away the rights of the devotees to go to temple-that is the test. in other words, if its in a limited category, and its based upon a rational and it is a custom and a usage and it becomes to a denomination.

I submit with respect in such a case, if the usage is present, custom is present, it is entitled to respect ipso fact as a part of that tradition. Customs and usages can't be thrown away

J Nagarathna: it can be struck down but need not to be on the basis of essential religious practice, merely because of an invasion into the religious practice it can be struck down. it is only a cloak or colour of social reform

J Bagchi: i would understand you to mean that article 25(2)(b) is a narrow window of legislative competence vis a vis in accordance with law, qualifying clauses c and d of Article 26(1), management of property. That is any general law can interfere with the right of the denomination to hold and manage the property. but when it is impacting the affairs of religion, the legislative competence is to be proceeded to article 26(2)(b) that is social reform or welfare. so general law can't make an inroad.

so my next clarification is that the word is social reform and social welfare- will the state be understood to be within its limits if it says that its enforcing constitutional duties in enforcing a law or making a law within the ambit of social reform because the state has some constitutional duties envisaged under directive principles of state policy. it has the constitutional duties to enforce fundamental duties of the citizens. will these qualify for social reform legislations?