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

Raju: reading BP Sinha's dissent in Sardar Syedna

Raju: If the practice has a religious impact i.e. it affects an individual right to religious freedom under A.25(1), it must be balanced against that right. The impact of a religious practice cannot, in all cases, be a permanent infringement of the right to religious freedom.

Raju: Anything which is mainly secular is beyond the protection of A.25 and A.26, shirur mutt says. In answer to J Amanullah's question-if the practice has a technically secular impact, but does not infringe any other fundamental right, it may not require any intervention. However, if the practice has a significant secular impact infringing a fundamental right, it should not be considered a religious practice under A.25 or a matter of religion under A.26.

Raju: The right to freedom of religion does not include a right to practice anything which infringes an individual’s fundamental rights to liberty, dignity, or equality or which is contrary to public order, health, or morality.

In Adithayan's case- in 2002, this court uses expression dignity and decency in the context of non malayala brahmin as priest in kerala temple.

Raju: I am not saying apply proportionality but only in cases where court is satisfied that the person's life is taken away. I am talking about total impact on a person's life.

J Amanullah: under grab of reform, religion can't be under hollow so under garb of excommunication the person can't be turned hollow

J Nagarathna: question is whether ex communication is a secular or a religious act?

Raju: when I read J Sinha's judgment mylords would appreciate what the majority missed.

J Nagarathna: tell why the majority was wrong for striking down the 1949 Act for making inroad

J Amanullah: when the triggering point is religion, who decides proportionality then? it has to be left to the discretion and we as a court can't

Raju: in 76 years of history of this court, five great dissent has become the law of the land eventually

J Nagarathna: what is binding is majority

J Sundresh: can you assert your right within the denomination? if its not available then what do you have?

J Amanullah: are grievance is within excommunication or are you limiting it to some facet? for ex, denomination of shia and dawoodi all have that so the moment you are not allowed a certain thing- is it this part

Raju: the Dai is the head, I will example of sikh community some amount of religious disciplining is necessary to get followers together. i gave examples-starting a magazine and not obeying some religious dictat- first is purely secular but even if the trigger is secular and consequence is disproportionate having effect on my right to dignity then even if trigger is religious, the court would intervene

J Nagarathna: what happens to right of denomination

Raju: rights cant be read in isolation. as Khambata said there is no additional limitaiton on article 26 which is immaterial because it can't extend to violatigng my golden traingle

J Nagarathna: the bench struck down 1949 Act for violating article 26(b)

J Nagarathna: are you saying your article 25(1) is violated?

Raju: yes because of excommunication i am not able to go to mosque, to religious gatherings etc-its not just social but also religious. its one of those cases where article 25(1) is being extinguished by collectivity.