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

Jaising: what is the right to religion? one is conscience- you need not to go to a temple-don't mean you are not religious or hindu. but if you wish you, your right is protected in article 25(1).

it is a civil right, a right in rem. what is the meaning? it determines my status. in devaru, both denomination and individual was claiming a status right. I say we need the essential religious practice test.

J Baghci: devaru was dealing with article 25(2)(b) on social reform making inroad into the freedoms.

Jaising: what is the nature of right?-article 25? its a freedom, see the heading. when I enter a temple, you will have to show me what rights I have violated? in devaru court has said article 25(2) controls article 25(1) and article 26.

some argued article 26 overrides article 25(2). if we agree say article 25(2) overs article 25(1), what prevents me from entering the temple. Gopal Subramanium said that but he didn't reach a logical conclusion as to what happens.

Jaising: what is the question we are deciding? discretion not to entertain is a different matter but what was said that u can't decide the questions of religions because you are not a theologian. if you are not, call a theologian.

J Nagarathna: question is can court sit in judgment on conscience

Jaising: there is a dissenting judgment where the judge tells us what is conscience- no one can be called for the bar to account for their conscience- to not be called for holding a certain view. in exercise of that view, if you violate my right I will say don't violate with the help of practice.

in India, there is nothing called a thought crime-i can be sitting at home and think I wish I was death-can you file a suit or criminal case? its the execution.

Jaising: section 92 of the CPC empowers civil courts to frame scheme for religious and charitable endownments. the question is not about judicial review by this court or other court.

J Nagarathna: if a person aggrieved come, court will decide and not for non-aggrieved person

Jaising: I am on jurisdiction marbury v madison [US judgment on judicial review]

Jaising: a criticism of the other side is questioning the judicial review- we are told the religion is handoffs- my answer is no.

J Bagchi: solicitor and all said its not a question of justiciability but discretion

Jaising: i submit with respect that i don't agree with the proposition because its a direct attack on judicial review because they say you have no competence to decide on religious matters

J Varale: Intersectional exclusion is impermissible, that is your argument?

Jaising: yes, i am supporting devaru, shirur mutt if you want to balance rights.

J Bagchi: says when article 26 definitely trumps article 25, it would be required by the court to examine whether article 26 is exclusionary, so that it completely dims articles 14, 15, and 19

Jaising: i am only raising the issue of entry of women into the temple for the purpose of worship- the right to enter the temple is a right guaranteed under article 25(1).

in sabarimala, they said will we allow muslims, christians but not women. 10-50 is when

J Bagchi: when there is intersectional exclusion, can you claim its not gender equality. you are not unallowed to enter but only for the specific group

Jaising: the law says we bother about your outcome. outcome is that I get excluded

J Nagarathna: at whose instance are you coming? something in northeast, nothing to do with south india, is coming and claiming this right

Jaising: i am answer the intersectionality-we have to look at the impact.

Jaising: all these arguments about whether constitutional morality can be used to strike down? all these arguments- no legislation has been struck down using constitutional moralities- all this boggies!