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

J Amanullah: is your argument not fundamentally contradictory when you say we should be read providing for social welfare and reforms inter alia the throwing open-the fundamentla contradiction would be that throwing open for social welfare for a limited section also but here throwing open is all classes and sections

Sundaram: my submission is classes and sections doesn't include gender

Sundaram: the way I like to interpret article 25(2)(b) it is not an absolute right it is certainly circumscribed by the fact that state can act in a larger goal but while considering the larger goal, it can't open out the temple and say X or Y can go without going into the question as to whether it is for furtherance of social reforms or welfare. it has to be read together

Sundaram: [arguments on gender equality and throwing open the hindu temples of public character] the aim is to achieve gender equality in employement and in other matters, but access to places of worship or freedom of religious doesn't include the concept of gender equality, even in the directive principles.

Sundaram:the power of the state under article 25 includes denomination, articles 25 and 26 have to be read together. I don't agree to the extent that article 26 will not be subject to article 25. on the contrary, I argue that it will apply to include denomination but only qua class and sections and it is my submission that although the disjuctive used is or but only for reasons of social reform and welfare.

Sundaram: where I disagree with some of my colleagues is that I believe there is article 26 certainty doesn't exclude article 25, the two will have to be read in tandem. the word class under article 15 doesn't enclude only those contemplated in article 17 but will to caste as a community as in class but it is my submission it will not apply to gender.

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.