Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench [Day 10]

J Nagarathna: its an enabling power, when a piece of legislation is made the question is whether it is making an inroad or whether it is reform per se. in that context, don't say only essential religious practice

Jaising: then say what

J Nagarathna: in the name of reform, don't hollow out the religion

J Sundresh: if you remove essentiality and keep only reform, it will give you more flexibility

Jaising: outcome will be the same, it will harmonise social reforms

J Sundresh: the courts will have to be circumpect when dealing with essentiality.

Jaising: social reform is reform of religion also

J Nagarathna: matter of religious is not restricted to essential religious practice but at the same time article 25(2) can operate. by restricting matter of religioius to ERP will cause damage to matters of religion

CJI finds an advocate recording the proceedings. Reprimands him/her and directs him to keep his phone aside.

Jaising: even if there was no denomination, i would have the right to entry the temple

J Sundresh: article 25(2)-social reform and institution of public character. when state is expected to invoke, it deals with religious practice but both the state and court, in judicial review, we are concerned with social reform. we are examining the impact on religious practice.

Jaising: dhavan said, I am an arya samajiyi-what he didn't tell you is that they don't believe in the sanctity of vedas.

J Nagarathna; diversity is our strength and what article 25(2)(b) is that it recognises that diversity. that is how we should look at it. therefore respect diversity

Jaising: show me the diversity then and not say I am a temple so I am diverse. In 75 years of history, only mutts have got denominational status. there are doctrinal differences.

Jaising: religious has the capacity to regenerate itself and it has done and that is why the word social reform is there in article 25(2)(b).

Jaising: history of this country is the unification of different sects. what is the need for article 26? let me reverse the question, can you have article 26 without 25? that goes back to the nature of religion. hinduism has been over centuries reform itself- religious reform its from within to survive and to have meaning. history of hinduism is the history of reforms.

J Nagarathna: but its differnet from saying court should reform religion

J Nagarathna: this living constitution and etc is good but let's not forget the past that we started on a clean slate etc

Jaising: everywhere I travel, nobody has said it protects all religions. none. it removes all limitation by removing caste, temple entry and all forms of disabilities.

Jaising: who to exclude, who to include is the crux. how far is your conscience? to do a practice to exclude those who have a right

whether lord is naistik bramacharyi-this is not the test-the test is essential religious practice. there is bonafide test- but are you going to sit in judgment that whether its genuine or not?

Jaising: you as a constitutional court as a conscience which is the constitution of india, and this has to be decided in that context and not only by looking at words of articles 25 and 26. I have said in written submission that how do you read the constitution? constitution is a living document to answer questions which the framers didn't anticipate.

Jaising: both are claiming an essence a right to religion

J Bagchi: article 25(2) is state power to enter into a religion. what happens when individual right is pitied against a group right

Jaising: mylord put that a state is claiming but on whose behalf? my behalf. what are these enteries law? they are acting in parens patriea to protect the rights of individuals. only way to do it to harmonise. other side says throw shirur mutt, etc and declare everything as denomination

J Nagarathna: constitutionally, it has been circumscribed by certain aspect question is what has been evolved by man and how much of it can be protected and much how will it be inroad to other freedom. its not that we got freedom of conscience in 1950, it has been there from ages but how far we can constitutional curtail