Sabarimala Reference | Live Updates From Supreme Court 9-Judge Bench [Day 8]
Kumar: fourth aspect to devaru-the court in its concern and anxiety and rightly said that article 17 mande is not offended. when access restrictions are being claimed by a denomination, as a part of its customs or part of its tenets, it is not with reference to caste. it is with reference to the fact that the denomination has certain peculiar practices.
please therefore look at what restrictions or curtailments that a particular denomination may provide for as prescriptions.
Kumar: the problem arises when, as a proposition, devaru is read and understood as holding the constitutional position that article 25 to be controlling article 26(b)-it has to be understood for what it decided in that case.
Kumar: the court in the process of looking at rationalising Article 25(2)(b) or 26, says that article 25 has to take note of article 26(b) rights [refers to Devaru]
Kumar:please go to my scenario 1 where a believer in the denomination makes a claim which goes contrary to the practices or the custom of a particular denomination to which he belongs, or state makes legislation. state making legislation in my submission would be subject necessarily to the rigours of article 25(2) itself
Kumar:[refers to devaru judgment] the approach of looking at legislation, being an enabling power under the constitution, has been looked at some kind of a reflection of fundamental rights. conflation of the two mylords results in consequence which are extremely anomalous.
article 25(2)(b) confines enabling power to two aspects
J Sundresh: it can be confined but they can trace it to part III also but also to social reforms
Kumar: article 25(2)(b) talks of legislation by state, its an enabling provision. it is a legislativ e power which has been recognised. can it be the position that a legislation, traceable to article 25, can control article 26?
article 25(2)(b) has to be understood for its reflection of the anxiety of the constitution makers to ensure that if there are any social ills, the state must have sufficient to handle it.
Sr Adv Guru Krishna Kumar: it is very well established that constitutional provision or the constitution is a gurudnorm, the highest form and out of which everything else emanates. all other form of state action, be it legislation, subordinate legislation, or even further down any kind of regulation etc, article 26 is the gurudnorm.
Sr Adv: three way formulation doesn't adequately address the meaning of a denomination in the context of heterogeneity of the hindu faith. a more appropriate definition would be- a collective or group of persons while belonging to a common faith, that is a religion, have special attributes by way of a belief system.
Sr Adv: article 25 refers to practice of belief system by an individual. when same practice takes place as a group, it acquires the colour of the denomination. i am consciously not going into whether religion is a denomination.
article 25 uses religion and 26 uses denomination
CJI: article 26 also encapsulates religious affairs but article 25 talks of religious practices
Sr Adv: article 26 talks of denomination or a section thereof. that is also important. general understanding of what denomination is there may be a group of people who may not fall within that but they will still be a denomination
Sr Adv: article 25 refers to practice of belief system by an individual. when same practice takes place as a group, it acquires the colour of the denomination. i am consciously not going into whether religion is a denomination.
article 25 uses religion and 26 uses denomination
CJI: article 26 also encapsulates religious affairs but article 25 talks of religious practices
Sr Adv: article 26 talks of denomination or a section thereof. that is also important. general understanding of what denomination is there may be a group of people who may not fall within that but they will still be a denomination