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

Sr Adv: on horizontal and vertical application of rights-in Kaushal Kishore [hate speech matter], mylords said look at the substance of the rights which are involved. based on that, take a decision how rights will horizontally or vertically operate.

article 25 refers to a religion which is practice of a belief system by an individual. when we move to article 26, we are looking at a group of persons who exercise their belief system.

Sr Adv: I go back to Sakal papers- gov bringing in regulation on number of pages a newspaper would have basedon the price that is being charged. that was questioned by the newspapers as being violative of article 19(1) rights. the gov took the contention that this is traceable to power to regulate business. Article 19(6) was invoked by the state to say this is justified.

mylords have specifically held that it can't be. whenever there are fundamental rights which are claimed and two of them are also involved, looking at freedom of speech and expression in article 19(1)(a) only those restrictions which are found in article 19(2) are to be considered.

if the measure of the state is not falling within any of those 8 heads of article 19(2) that can't be the basis for restricting the freedom of speech

CJI: you are invoking same approach?

J Nagarathna: the hierarcy of fundamental rights?

Sr Adv: In Sakal, mylords said all are enjoyed equally

Sr Adv: looking at article 26 itself, one important constitutional principle-restriction found in one fundamental right can't be read as a restriction on another fundamental rights itself.

Sr Adv: questions belong to potentially four scenarios

1. a believer belonging to a denomination questions customs and practices of that denomination

2. dispute between two believers within the denomination itself

3.non believer questioning the tenets and practices of the denomination

4. state intervening with some legislative measures which impact upon religious practice.

Venugopal: then there are created places of worship, I build a temple, they ought not be be acquired.

J Varale: out of anxiety, shravanabelagola is it a natural or created place of worship?

Venugopal: my friend Divan tells me its a created place of worship and possibly could be acquired

Venugopal: i am submitting those sites are never to be permitted to be acquired for any purpose unless the fate of the nation depends upon it.

second there are sites where thithankar have attained salvation, they ought to be kept sacred.

J Nagarathna:for the sake of public order, suppose two domination of the jain faith start fighting over a religious site and there is public order, then the state can intervene?

Venugopal: it can

Venugopal: there are three categories in my religion-first is natural sacred site where the site itself is worshipped as being divine. so there are certain sites in the jain religion where the thirthankers actually attained salvation and those sites are worshipped as divinity in itself.

Venugopa: I do believr that the state must have the power of eminent doman, that is it can exercise its powers to acquire by passing of law.

Venugopa: the words acquire property under article 26(c) are not qualified by the words in accordance with law.

J Bagchi: the first two clauses were with regards to core religious activities that is to establish and administer a religion institution and manage itslef. so it is more like an indoor management of a religious institution controlled by the denomination or any section. the last two are secular and therefore governed by general law. the first two being religious have to be restricted to subject clases namely public order, morality and health

Venugopal: article 25(1) is the right of an individual and if one looks at the nature of the rights, they are in the nature of individual rights. that is to say, the individual rights is his freedom of individual conscience, his right to profeess, and practice. on the other hand, in contract, article 26 is the right of institutional autonomy of a religious denomination. and what are those rights to establish and maintain religious and charitable institutions? an individual may also have that right. that is, he may try to do it, and but he has to do it within organised framework of the denomination.