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

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.

Subramanium: that is why under article 25(2)(b), the expression "all classes and sections of hindus" are used, which not only refers to excluded classes but also includes denomination. That is, access to the temple should be open to people of all denominations.

Subramanium: when you are in a denomination, it is open for you to expresss your views within one of the displicine and decency of that denomination. it is seeded under article 26. the freedom to navigate in matters of religion is a matter of personal freedom under article 25(1) but when you adopt a creed, when you adopt a philosophy then you come under article 26(b).

Then you can't actually attempt to change the doctrine of that philosophy while entering as a member of that denomination because its not expected because you are an adherent of that denomination.

Subramanium: freedom of religion carries with it not only the right to affirmatively and actively engage in religion but also establish boundaries within oneself about the extent to which the person would be willing to go and exercise his rights.

practice and propagate religion- a person may visit an institutional setting, that is Article 26 of the Constitution. So the denomination is where you collectively come together and express your worship, your faith

J Sundresh asked what do the members of a religious denomination do when they arrive at an institution- they exercise rights under article 25(1) but collectively they have rights under article 26. so the freedom under article 26 is not entirely divorced, if I may say so, from the rights which are actually exercised by members of denomination because inside the institution, they exercise article 25(1) rights.

J Bagchi asked if there is a proponent and an opponent even inside a denomination- a denomination has the frreedom to have internal discussion and debates. It doesn't only means that denomination simply take positions of conclusive nature, there can be discussions, there can be debates and they can be a consensus in denominations too. It is inherent in Article 26. It doesn't have to be located in Article 19(1).