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

J Bagchi: you agree it can't be a touchstone to test legislation or religion-so use of constitutional morality as a term for morality in articles 25 and 26 may not be correct

Raju: let us not be detained by terminology

CJI: it has been used by majority as being on a higher pedestral

Raju: it is a tool not a test and therefore no law can be struck down for violating constitutional morality but recent use of this in the citizenship judgment-while upholding assam accord,

CJI: as a principle of faternity

Raju: on constitutional morality- if this word is irritating, use constitutional ethos but can we deny that there are core constitutional values that define the rights.

after the sabrimala judgment, questions were voiced what is this constitutional morality some extra territorial concept. asking what is constitutional morality is askign what is the basic structure.

J Nagarathna: death penatly is there in the statute so can you argue that if its violates article 21 it should be taken away?

Raju: with due respect that is a very wrong example

Raju: these is impact

J Sundresh: its not against state so it will not come under articles 14 and 15 and also not article 17

Raju: I only need article 21

J Sundresh: we are not saying you will not be remediless

J Nagarathna: in a given case the excommunicated person can always question but here you are asking us to strike down for in violation of dignity etc

Raju: if it leads to civil death, the court will intervene

J Nagarathna: he can file a suit

Raju: in the meantime, his wife has divorced him

Raju:Chief Justice B.P. Sinha observed that the 1949 Act was in fact a culmination of the long history of social reform legislation enacted in India, and that it was specifically “aimed at ensuring human dignity and removing all those restrictions which prevent a person from living his own life so long as he did not interfere with similar rights of others.

Raju:Once there is a finding that the practice alleged to be infringed is in fact related to a matter of religion, the test of proportionality can be applied to determine the validity of the law curtailing the practice

Raju: summarising his arguments

Laws under A.25(2)(b) can curtail religious practices if necessary to advance social welfare and reform. Such law would always be subject to judicial scrutiny to ensure that it meets the test of proportionality to the extent that it curtails a fundamental right, and the Courts will examine inter alia the object of, suitability of, necessity for, and impact of the law

Raju: The Chairman, Vallabhbhai Patel, entrusted the task of drafting such a provision to Rajagopalachari and Syama Prasad Mookerjee who were known as conservative. On the basis of their recommendation, the committee decided to add to the clause a new explanation providing that the freedom of religious practice would not 'debar the State from enacting laws for the purpose of social welfare and reform'