Sabarimala Reference | Live Updates From Supreme Court 9-Judge Bench [Day 8]

Radhakrishnan: with respect to judicial review, judicial review can't be questioned by anybody. whenever situation warrants, mylords would be conducting judicial review but mylords will be very relutant to enter into the ecclesistical jurisdiction.

Radhakrishnan(for Pandalam Royal Family-foster father of the deity Ayyappa): articles 25(1) and 26 there is a bridging. article 25(2)(a) or (b) can't anyway control article 26. bridging is there from article 25(1) to article 26 and it has to be read holistically. when you consider morality, there is an aspect of public policy is also there that you are not acting against the society at large.

Radhakrishnan: why should we afraid of constitutional morality?

Radhakrishnan: morality in indian constitution, there is no prefix. it is used as such. you can call morality as generic and four species can be identified- public, individual, constitutional, and institutional. these specifes are already smiling at each other because at the bottom of this, there is righteousness, fairness, justness

Radhakrishnan: [refers to Ram Manohar Lohia] refers to the three concentric circle theory- with the right to have freedom of religion, conscience you can't tender with the second concentric circle or something which will affect the transquility of the society. morality is the maximum good that a human being can procedure, that is what Jeremy Benthan says in his theory of legislation.

in our constitution the word only morality is used in articles 25, 26, and 19(5) and (6) and in the latter, it says in the general interest of the public. this is connected to the peaceful existence of the people in the society.

J Nagarathna: please place on record the 2016 Act which repealed the earlier ex-communication act.

Sr Adv Radhakrishnan: there are four hold restrictions under articles 25(1), and as Sr Adv Rakesh Dwivedi argued yesterday it is for the securing peaceful coexistence in the nation.

Kaul: it was brought to the notice of the framers that article 20, as it existed, which is article 26, did not include any limitations. the framers, when they debates, said yes it ought to be included but it only included these three and did not include other parts. if constitutional morality is read into morality then we are bringining it lot more than what has been envisaged. and would your lordship supplant that meaning and introduce these words when the legislature or the framers [did not do so]

Kaul: context has been right through in the context of governance even in the Indian debates. it was never ever a limitating principle for interpreting religion under articles 25 and 26. secondly, it one of the dangers of constitutional morality is that surely all fundamental rights, preamble, and everything else will come.

J Amanullah: not necessarily, it come in the abstract

Kaul: it pervades the entire constitution.

J Amanullah: the word morality and the word constitutional morality can we read it in a particular context? and [can] it include constitutional morality because constitutional morality may be a concept which is fluid, morality per se may be a straightjacket. one can't be changed-constant for all times. but constitutional morality itself can be a fluid, dynamic idea read with a context. so if we insert constitutional morality to articles 25 and 26, probably because of the language. constitutional morality, looking at the debates in the constituent assembly, it can be balanced to say that even constitutional morality would arrive at the same situation. [but] to straightaway reject constitutional morality

Kaul: it is abhorent to the civilised society.