Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench Hearing [Day 13]

CJI: it should have been a composite reference but we are now bound by our order

Gupta: since I don't have a particular client, i can address the court freely

Senior Advocate Jaideep Gupta(for State of Kerala): I start by saying this since I am representing State in midst of political change, i would disappointed many in this room by not answering questions on sabarimala directly.

Luthra: there is issue of constitutional and social morality- we will have to test it with critical morality-social morality would be plural and critical would be would the law ought to enforce.

Luthra: no denomination can seek constitutional protection which fail on the envelope of fundamental rights because of article 25(1)

CJI: it may depend on case to case basis

Luthra: Narasu Appu would have to be kept at rest. Last two points- there will be an issue on nature of jurisdiction-who can come- if somebody doesn't have access, this court has parens patriae jurisdiction.

CJI: when we were reading the majority opinion of striking down the act, the doctrine of reading down should have been applied, test of reasonablness should have been applied

Pasha: there is no practice of excommunication

CJI: hypothically if there is a practice, would that be excommunication?

Pasha: on instruction, there is no consequences

J Amanullah: the moment it is mandatory we have to test

CJI: the effect is that if you refuse this religious dictact, the consequence is excommunication and then the 2016 Act comes into picture

Adv Nizam Pasha: it is not a subject matter of excommunication

J Bagchi: if the minor's parents refuses would that be ex communication?

Adv Pasha: there is no ex communication

J Bagchi: it is a consequence of breaching the dictat of Dai

Pasha: it is mandatory but no consequence like for instance circumcision

J Bagchi: circumcision is not the same as FGM

J Nagarathna: what is the object

Pasha: it is to increase the sexual pleasure of women

J Amanullah: I am very surprised, get your facts correct its not the same as circumcision

J Amanullah:u are giving us a novel proposition that on touchstone of overall safeguards articles 25 and 26 can't be given overriding effect to violate individual's right

luthra: when denomination right comes in conflict with individual, it must tilt towards individual

CJI: the expression right becomes very complex

Luthra: keep one thing in mind three would be three levels- when community impairs a minor's right- question is the power relations- in sexual offences we treat it very seriously and therefore, we have vishakha judgment.

J Nagarathna: Article 25(1) ridders are there

Luthra: it is a belief of purity and sexuality

J Bagchi: challenging women's sexuality

J Varale:here impact will be multifold

J Amanullah: its FGM a bit off track

luthra: the consequence of both is excommunication

J Bagchi: this is there you are challenging syedna decision that if FGM is a part of religion and that minor child [inaudible]...its not only secular act that leads to ex communication but some religious practice making serious intrusion

J Varale: double impact- on the person and then ex communication, emotionally is the third impact