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

Shamshad: if there is no sanctum santorum inside the mosque then nobody can insist to stand at a particular place or for that matter to be the first to lead the namaz

CJI:for factual clarity, are women allowed to enter mosque?

Shamshad: there is no quarrel across the religious denominations in Muslims that women can enter into mosque and that too for prayer. They can enter into mosque, there are certain discipline that has to be followed.

Shamshad: the prayer is of such a nature that women should be permitted to stand in the first row, same line-scheme of the petition. now in this background, and because at some place they try to give an inference as if inside the mosque there is some place which is equivalent to the sanctum sanctorum. sanctum sanctorum has no place in the mosque.

Shamshad: the petition is saying they are PIL petitioner and they are saying I have written letter to particular mosque and they are saying we have no provision. the background and the scheme of the petition is that my articles 14, 19 and 21 is violated, no mention of article 26.

Datar says they are supporting the position on the ban on women's entry to Sabarimala.

Senior Advocate MR Shamshad(for All India Muslim Personal Law Board): two issues- the petition came to be filed why Muslim women should not be allowed to enter into mosque

J Bagchi: even in post independent india, legislations had to me made to deprecate elevation of sati to a pisious religious act, to turn our eyes away from

J Bagchi: article 25(2) is enabling future legislation and preserving past legislation of similar nature. for instance, abolition of sati act. they have been into question so in order to preserve these sorts of preconstitutional reformist laws made prior to independence were existing laws were inserted in article 25 and may take its colour from the more descriptive portion

J Nagarathn: because the 1949 act is pre constitution with regards to the madras temple act

Datar:before 1950, presidency towards had thrown open the temple but after states came, they made the laws. article 25(2) saves custom and usage that are prevalent unless the state under article 25 decides that now the time has come to change it.

J Bagchi: will you reading existing law in reference to article 13 or reference to other disjunctive portion of any law made byt he state for certain purposes of change, of changing the dynamics in the religious status. article 13(3) is in the touchstone of unconstitutonality

Datar: but this article 25(2) with regard to existing law, you are saying it includes custosm and usage? but there is a definition of existing law under article 366(10)

J Nagarathna: where is it

Datar: article 13(3)

J Nagarathna: its law but what is used in article 25(2) is existing law

Sr Adv Aravind Datar: I will stick to constitutional morality. there are 4 reasons why it should not be interpreted as constitutional morality

1. what is the status of constituent assembly debates-it was used only thrice, one by Dr Ambedkar in the context of respecting constitutional conventions-founding fathers never contemplated morality as constitutional morality

2. what were the provisions on the date of the constitution-once the constitution came into force, a pre-constitutional law violative of part III would be unconstitutional but there were special provisions-article 25(2)(b). constitution recognises in the context of religion that there are customs and usages as a provision of law which might violate and be contrary but it has been saved them specifically.

3. what is the march of law subsequently

4. will it be a fluid concept

the kerala judgment, which is a rare case of articlw 226, they examined evidence, they cross examined tanthris, documents. then they come to a finding that on the basis of evidence women are not allowed in a particular period. its a myth that they are not allowed at all-only three times in a year they are not allowed. in the first five days they can go.

J Kumar: where do you get this?

J Nagarathna: which temple is this?

Datar: Sabarimala

Divan: where you have a law or executive action based on public order, morality and health, if you have an intervention or an intrusion on that area, then apply the doctrine of proportionality to see whether those acts are valid or not.