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

Shamshad: If my Sikh brother can go and join the army with a beard, then why not a Muslim?

CJI: We will not go into this debate because I can point out there are five basic principles to be mandatorily to be followed and keeping beard is some of them. therefore we can't compare other religions with Sikh religion for the purpose of Kirpan etc. These are mandatorily religious principles.

Shamshad: I will give another example. there was a boy who wanted to have a beard as Mr Pasha's has and he wanted to join army. Army said get lost. When the matter came before your lordships the senior counsel that you tell me from your religion that this is mandatory for continuing as a Muslim

 The learned counsel came back with some certain text. It depends. For Pasha, it may be mandatory but for, I feel like I can be without it.

Shamshad: Masjid, for a Muslim, is the spirit of Islam, masjid is core of the belief of Muslims. All practices are ultimately relatable to mosque. But then we face a judgment of Faroqui saying Masjid is not essential. Then what will we do with Article 25?

J Nagarathna: It is as good as saying a temple is not essential. Who is the Court to decide that?

Shamshad: that is the point

Shamshad: The Ismail Farooqui case, which Dr Dhavan argued, in that case the issue was not where masjid was essential or not. I asked Mr what was the context, he said that since Masjid was demolished, muslims claimed their right that I can offer Namaz even in open

the majority said that since Namaz can also be offered in open, masjid is not essential. That parameter is completely wrong and that has been applied in subsequent cases.

 I am appearing in a case, which I lost in the Supreme Court, the parking of a temple was to be extended and 200 years old mosque was demolished for the extension of parking of the temple.

Shamshad: for instance, my learned friend will appear for Dargah. it is not practice of 50 years that when it goes to the court, somebody will say sorry you get out its not essential

Shamshad: allocating 1/6th share to parental grandmother in case of pre deceased grandson. in quran, there is entire details. despite not being in quran, there is general consensus on this by the scholars.

 J Amanullah; if its a religious practice and it comes from religion and practice, why we have to go to essentiality arguments to continue.

Shamshad: I have given some examples that Quran command if you are entering into a business transaction, record it. this is in the nature of commandment. but seeing the Prophet's lifestyle and transactions, the scholars have reached a conclusion that it must be written. there are instances where scholars have reached a consensus that despite the language in a form of commandment, it may not be essential.

Shamshad: one fo the parameters to determine whether it is essential or not is also the fact thsat something has been commanded in original text, continous practice with dilgience and bonafine

Shamshad: when a matter comes to the court that certain practices should not be permitted because it is not essential or somebody comes to enforce his right that it is essential, you look at translaction of one book and take a decision. for that, with respect mylords would say that considering the materials, and the text available, and the efforts undertaken in so many years, the courts may not ger into all this.

J Amanullah: Hadith is not just what the Prophet said what Holy Quran says is also there.