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

Dhavan: what was in the mind when faced with diversity and requirement of reform? one thing is clear they didn't think them as silos.

while you are looking at these rights, what techniques do you use? subject to, notwithstanding etc- first was restricted to other articles- when two rights are of equal status, the interpretation would be to give equal status by harmonisation. whether devaru did this? it said article 26 is subject to article 25(2)(b).

balancing is a judicial task. then reasonable goes hand in hand with proportionality. and then law must be just law.

J Nagarathna: when it comes to these articles, there has been no collective consider and therefore the 14, 19 and 21 traingle can't straightforwardly apply is your argument

Dhavan: if article 14 question comes, you would look at classification etc. only thing you will see is that the concept of reasonable as been extracted. so the identity in the assimilated process is never lost.

what did they have in mind? individual conscience and the manifestation. what did the constitutional framers wanted? they said we can't leave the right without restriction because it could result in worst communalism.

they also had in mind other provision-it says to the other provision- if it doesn't apply to itself how does it transgress to article 26? we are a country with huge amount of religious tension. they realised that india exists as group and therefore, group rights.

Dhavan: article 25 is about a community and not about collectivity. there has some purpose to it and has to be defined widely.

the bank nationalisation view supports that each rights are not a silo- silos is not an emotive word.

balancing is an intricate judicial task, which is to determine outside. it entails considering the rights. Indira Jaising impliedly said and I agree when we talk of law we talk of just law.

Dhavan: we can't lecture how balancing has to be done, that is your job.

Dhavan: unfortunately what is being argued on the other side is massive investment on individual and article 26 and 29 is a group right, 30 as well. what was in the mind of constitutional makers? article 14 to 18 was the most important right because speech and equality was taken away. if they didn't have those egalitarian rights, the whole promise of the constitution would go away.

in my view, they thought of religion as groups.

third big area is school and institutions which has been resolved is TMA Pai. the only area unresolved is the religion. in the complexity of india, it may not be possible. I use the word balancing which is the difficult part of judicial decision.

Dhavan: reform process is the most important process in the mind of the constitutent assembly members. if this country doesn't do social reform, it is completely lost. but this country doesn't just exist for individuals but also groups and institutions.

Gopal: I must say the judgment in electoral bond employing the test of proportionality is not necessarily the only way to interpret the constitution if they are coming into the tension with each other.

devaru is a judgment which didn't use the word proportionality but harmony.

Senior Advocate Rajeev Dhawan: the arguments on the other side boils down to one proposition-there is an assimilated way to read fundamental rights. this started in 1970 in RC Cooper to Menaka to Minera Mills- this is responsible for a large part of interpretation.

if anything could be assimilated, article 21 will be assimilated in article 26 and so and so forth. we have a huge constitution, I have divided it into ten text. I am going to concentrate on justice and political text.

mylords are concerned with justice text- when you exercise justice text, there are huge appratus of concepts you can use. when you are looking at political text, you exercise rule of law. that, you have been given power by the constitution to not cross the line.

you are not exercising jurisdiciton over the political text which gave us many doctrines. we are in the common ground, that this is a social document of the most diverse country in the world.

Gopal: suppose somebody disagrees with the tenets, should he have right to disagree? do the rights of individual gets defeated in the oligarchy- I said denominations have to behave sensibly. the reform happens within the society for instance Raja Ram mohan roy.

the 3 fold test in shirur mutt is very easily to fulfil. if mylords doesn't agree with wide spread definition of denomination, denominational temples will lose its protection.

Gopal: under the guise of religion, you should not transgress article 17, 23 and 24. those are standalone articles, these 3 are complete prohibition to be observed religiously. they can't be a part of religion or conscience.

Gopal: suppose we didn't have rights article 25 and 26, there can be a question would it be included in article 19(1)

J Bagchi: we have done reverse diving-we said right to expression includes right to information so definitely includes conscience

Gopal: J Chandrachud in electoral bond said there might be some hierarcy of rights, etc- I don't agree. when you interpret the articles of the constitution, you don't review it from the tool which are used to assess legislative action.

there is a distinction-this freedom under article 25 is a subjective freedom, it is laterally available but laterally you assure the other citizen of the respect for their rights. how do you practice equality, tolerance- the other people may not be exercise article 25(1)

J Nagarathna; equal entitlement