Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench [Day 16]
Parmeshwar: I agree with Subramanium that the concept of rationality doesn't apply. the equality is inbuilt because there can't be a straighjacket application. that's why he suggested articles 14, 19 and 21 have direct application but I don't agree it doesn't have any application at all because it freezes the law.
Parmeshwar: much has been said about article 25, Part iii-individuality of the rights have to be respected. when mylords respect individuality, it must not ignore the inter connection of the rights. I am not saying all rights merge into one. constitutional morality is an example where you pick and choose, I am not saying this.
integrity of part iii as a whole has to be accepted. 3 submission which affects it- in electoral bond says there is hierarchy of rights- its my submission there is no hierarchy.
second, this restrict categorisation of horizontal and vertical is not there. the entire area of fundamental rights is available for mylords.
I don't believe integrity of rights call for social, political because it doesn't see the interconnection of rights. mylords will say in matters of articles 25 and 26, article 14 may have limited play. I completely disagree with other side that rationality should be employed in articles 25 and 26. at the same time, mylords can't say the other FRs can't apply for instance, FGM is the best example where issues of bodily harm etc arise.
Parmeshwar: 3 ideas that permeate- first is spiritual identity, I have not used religious identity. second, spiritual autonomy, and resultant of the spiritual diversity. these are the core which mylords are considering. added to this, the phrase J Mukherjee used spritual fraternity which is better than the word religious denomination and last is social reform.
i believe devaru was rightly decided.
arguments on both side over. Amicus Sr Adv K Parmeshwar to begin post lunch.
J Nagarathna: there is article 25(2) for the state to make law.
Dwivedi; no provision is standalone. Nothing emerges from this expression, ultimately how do we limit it is the question.
Dwivedi: subject to doesn't mean an reduction, but also improvement for instance article 16(5).
Dwivedi: all persons are equally entitled to freedom- its the equality so when it says subject to, one has to trace out provision which would have impact. for instance, article 17 is reflects equality. its a prohibition coupled with offence, therefore it has to be subject to article 17. likewise, 23, it can;t be said that religious denomination can practice beggar and employ labour. but its not that all provision sof part III cant apply, like 13 and 14 and 15 are injunctions against state so it doesn;t apply
Dwivedi: article 25(1) is a fundamental right where individual and collective rights interwine. conscience, practice, propagation can all be exercised by group. its a collective conscience. the practices can be done individually, or int he mosque, temple or church. but predominamently its a group right.
non denominational institutions will still be under mutt. denominational rights should not be diluted because it has kept hinduism alive. every individual right in part III has a group dimension. one doesn't speak or express in isolated room. it also speaks through a group and it is meant to generate ideas useful for the nation. there is an interaction of group and every right.
one question J Nagarathna asked- what is the significanc of subject to other provision of this part- when we are faced with subject to or the non-obstante, we don't immediately conclude that it stands subject to all rights of part III.
Dhavan: the extent of judicial review- what must the court do? judicial review class by class would be different. mylords would examine if the case is by a genuine belief, apply proportionality, and reflecting values of the constitution.
Senior Advocate Rakesh Dwivedi: i am responsible for some way for this constitutional morality because i didn't want a corrupt minister
J Nagarathna: I have it was a slip and not intentionally said
Dhavan: if you want the religion to proceed, it has to be organised manner.
on essentionality and integrality- there is a threshold difference between essential and non essential-in sabarimala said this is not essential. article 25 rights if you treat it as limitation, article 25(1) rights disappear and if you don't give them denominational rights, article 26 disappears.
if threshold requirements are fed, articles 25 and 26 rights will be defeated.
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