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

Senior Advocate Siddharth Luthra to begin(intervenor challenging practice of female genital mutilation (FGM) and also in parsi matter)

continued post lunch

Sr Adv Neeraj Kishan Kaul: are you talking about blanket excommunication or social or secular groud? para of majority judgment said that it banned escommunication blanketly,

CJI: majority could have applied the segregation, doctrine of reading down could have applied

Kaul: instances are matters of prejudice, factually incorrect. as far as power of Dai, it has been held to be an essential tenet

CJI: the constitution bench with greatest respect failed

Kaul: you can't take a bad instance

CJI: you are right bad instances can't form the basis

J Nagarathna: when the matter goes to 5 judge bench, they can also consider the 9 judge reference and send it to 7 judge bench

CJI: as you rightly said that 9 judge are investing, we would like to respond on merits

J Nagarathna: whether petitioner board tried to make reforms within the denomination?

Raju: we can't do anything, syedna has to do

to be continued

J Sundresh: we should not go into it

J Nagarathna: why refer to 9? 5 judge should have considered it

Raju: this is a note of protest. the question of maintainability is not a matter referred to this 9 judges. this issue is not the matter which requires attention of this court- if a doubt has arisen, let it be decided there- this is not a matter which should engage the attention where the time limits have already been crossed.

CJI: 2016 vires is not challenged?

Raju: no, the 5 judge which sent me from recorded the 2016 and the arguments of SG that question of validity of ex communication still survives

CJI: practice of ex xommunication was bound to survive because 1949 was struck down. now that practice has legislatively again acknowledged in 2016 act and that is why the prohibition and penal consequences

Raju: having addressed these questions, I will proceed on an unframed question to satisfy the doubts. I make it with a caveat

CJI: Mr Raju, you need to very briefly point out the significant departure from 1949 to 2016 Act? if 1949 adequate reforms in terms of powers and as an existing law if it survived and now if new legislation came into force, what is the apprehension?

J Kumar: there is an application for amendment, what is it?

Raju: since the view of some member has been expressed very strongly,

CJI: From our side, all observations are tentative. The stronger the doubt we seek clarity

J Nagarathna: are you using touchstone of morality to strike down the syedna judgment?

Raju: no, I am not on this