Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench [Day 16]

J Nagarathna: as per custom and usage the women can't enter, this was there in Rule 3(b) and it was struck down

Parmeshwar: in devaru also it happened, the look said we will look at the denominational right and if nothing survives then the entry is not allowed.

J Nagarathna: if you say entry access is under article 25(1), then there can't be anything against custom and usage

J Nagarathna: if there is a custom or usage prohibiting entry, it is saved under article 25(2)

Parmeshwar: yes and if somebody says he or she is a believer, mylords will have to do a balancing exercise.

Parmeshwar: those customs which are part of religion and belief are protected under article 25(1) read with article 26(d). I have given list of enactments where the temple endomwnt says it must be administered as per the customs and traditions

Parmeshwar: two things devaru showed a temple can be public and denominational. it also showed that denomination and reforms can also go together.

the balance that devaru made, right under article 25(2)(b) is a right traceable to article 25(1)

Parmeshwar: if mylords confer the deity with rights, it would lead to problematic situation that deity has rights under article 25 and 26 and also fundamental duties.

Parmeshwar: the object of belief is not one person's property. it is the collective manifestation, the deity is the collective manifestation of article 26. many says deity is a person protected under the constitution, it is not. a deity exist in belief but it has no independent existence.

Parmeshwar: if there is one qualification under article 25(1), it is the status of believer. the believer doesn't exist in isolation with the object of belief. his belief is paramout because it connects the believer to the object of belief.

J Nagarathna: in sabarimala, that situation is contrary because believer can't entry between 10 to 50

Parmeshwar: mylords must recognise the struggle and must accord protection under article 25(1) irrespective of caste, birth etc.

before constitution came enforced, the temple entry laws were amended and all were allowed irrespective of caste. irrespective of caste or dissent, all hindus must have access. if mylords because of article 17, article 25(1) stand, it will only protect one group.

the enabling provision was there because n number of statutes protected temple entry. Dr Singhvi said article 25 allows you to entry the compound of the temple and then article 26 works. that is not so. article 25(1) is not just a right to enter, it is a right to entry, pray and perform and it is only available to a believer only. if you are a believer, you can walk in. after 75 years, we can't say temple entry survive because of enabling provision.

Parmeshwar: one of the criticism of devaru that it balances article 26 with enabling provision- the right to temple entry is a right to guaranteed under article 25(1). right to entry into a hindu temple is not absolute and there are caveats.

why do I seek to protect temple entry: its a matter of struggle, after a long time people were given access. it does disserve when you situation it to only article 25(2).

Parmeshwar: the word freely gives the depth of article 25. there are only two phrases articles 25 and 19 which says you have a right to freely, that is that you won't be skimmed of. if mylords privilege some practice, others will not be able to protect their. if you start looking for textual authority, distinctiveness, nobleness, even the group will be devoid of protection.