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

Divan: on puttaswamy judgment-proportinality, as we understand it, came in initially, though not articulated exactly in that manner, in the context of article 14. from reasonable restriction, which you already have in article 19, the proportionality test is now to be applied also in the context of article 21, we have come so far.

Divan: mylord may consider whether the time has come to expand this triangle into something which is a quandrangle for example and whether the right to freedom of religion which is so important to so many citizens also forms the part of this particular, what was a traingle perhaps a qundrangle and therefore a part of basic structure.

Divan: the court is ultimately concerned with the space of the liberty which is reserved to the citizenry. and they found that a much better way of construing and protecting these is perhaps reading them collectively and not in silos. that of course doesn't mean that in certain situations you don't have a textual reading or that you borrow everything from one article to another.

Divan: last, article 329A(4) was struckdown because it crossed the implied limitation of the amending powerrs. it sought to eliminate the golden traingle of articles 15, 19 and 21.

Divan: refers to the 5 propositions laid down in Coelho-constitution is a living document, constitutional provisions have to be construed having regard to the march of time and development of law. the principle of constitutionalism is now a legal principle which requires control over the exercise of government powers to ensure that it doesn't destroy the democratic principles including protection of fundamental rights. fundamental rights occupy a unique place in the lives of the civilised societies and have been described in judgments as transcenental, inalienable and primordial.

they constitute the arc of the constitution for its evident that it can no longer be contented that protection provided by FR comes in isolated pools.

Sr Adv Shyam Divan(appears for intervenors from the Jain, Hindu and Christian communities, respectively)begins

Divan: this court when sitting in a panel of 9 judges will have regard to what we considered or decision by the three judge bench in Coelho, Puttaswamy and Mirajkar judgment

Kumar: scope of review

1. claim of believer belonging to a particular faith comes in conflict with the belief of the group of particular custom- extent of review would necessarily have to be limited in such a situation. courts only would have the power to determine whether there is an extent of such belief or faith in the denomination and if so, the right of the denomination would prevail over the rights of the individual believer subject to public order, morality and health

2. when there is an interstate dispute between two believers within the same denomination or between two denomination with regards to custom, practices consistent with the nature of dispute as being purely and substantially religious- court would reform from entering into purely religious thicket

3. where claims of non believer came in conflict to the belief of a denominational group with regard to a particular custom or practice- the proceedings has to vitiated for the lack of locus standi, sabarimala is the classic example

4. when state makes law- where legislative measures addressing practices and customs of a denomination are put in iusses in judicial proceedings, jurisdiction of the court would only extent to examining whether such legislative measures are strictly within the confines of the restrictions explicitly mentioned in article 26

Kumar: I would go a step further in holding property, perhaps the denomination will require a juridical status because for it to hold property, it has to be in accordance with law.

Kumar: if the constitution markers intended that they should relate to same subject, they came under the head of religious freedoms, no doubt about it. there would have been no occasion to provide for articles 25 and 26 separately if article 26 is merely an extension of article 25

J Sundresh: they never expected arguments like these. they put it separately so that the administration, management will come separately. nothing else that we are hearing from you at length

J Nagarathna: article 26(b) is for all denominations to follow registration and transfer of property act with regard to their property and not say I am separate so nobody can touch me. it is not religious its a secular thing.

Kumar: correct approach would be to look at those as prescriptions, traceable to the tenets.