Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench [Day 6]

J Amanullah- putting an extreme example, I go to a temple, my fundamental belief is that he is the Lord, he is my creator. He has created me, right? I am totally devoted. But there, I am told that, because of your birth or your lineage, for certain restrictions, permanently, you are not allowed to touch the deity. will the constitution to the rescue? the argument is there can't be a difference between the creator and his creation.

Suppose I am going and somebody throws mud, I clean myself, I have to be in a decent position to approach the deity in a pure way. that you can decide what purification means but then the permanent disability that I can't touch my creator, I am strongly believer of that. he is my creator. will the Constitution not come? Because ultimately, what you are projecting is that he is the god, he is the creator, but creation will not be able to touch the creator? To what extent you limit it?

And you say, no its totally [not possible]. Somebody, just because of birth, he can't and he can't change in this lifetime. So why only an archakas particularly? How should the constitution not come in with it? How does it defy? Justice because you think it is defied?

J Sundresh: for example, there is a temple and the general denomination is that the ritual is being followed. there you can't get in and say don't do it but that same person can deviating from this right and practice and do something else. that is the protection to him under article 25(1). Article 25 says person or persons, so long it doens't interfere with common belief then its fine. You uphold your right but do not interefere with others. That's very simplistic way of putting it

Giri: I may not agree, then I am entitled and have all the freedoms to practice it in the manner in which I would but I can't go to a public temple and then say I am questiioning this.

Giri: a face off between the right of a believer, a member of the denomination and the denomination itself may not really be contemplated. if there is an inner churning out, within the denomination to see that any particular practice should be abandoned or modified, then its a matter where

J Sundresh: let us say the denomination consist of 100 persons, and they constitute a common belief, and one stands up and say, I don't agree with this particular belief. so as you rightly put it, your question is, you stand apart because adjudicating upon his right by a constitutional court under articles 25 and 26 would be a problem because it is not your belief but its a belief of the 99. So that is protected under Article 25 and it can be raised under article 26.

J Bagchi: let us say, a person who is a believer comes to the court and challenges the belief of the denomination itself, which is being put on canvas as a religious practice of the denomination. He says, no this has no ancient antiquity. this is not connect to the main core faith which we all profess. In this situation, will a believer will or will not be in a position to challenge the denominational claims of matters of faith.

Giri: it could arise in two forms-my right of conscience which would include a right to belief in god. And if I am born in a religion normally, I would say that I have faith in the religion in which I was born. But I still need not to go to a temple. I am just giving an example, to be a practising Hindu. There are several places and several persons who probably do it that way. History also is replete with that examples. But if I belief, if I got to a temple then I go to it for the purpose of worship.

If I go to the temple for the purpose of worship, then whatever is an integral part of the manner in which the deity is consecrated, and the deity is worshipped and the temple is maintained, it is out of bounds for me in sofar as srticle 25 is concerned because this is a aprt of the practice of my religion which alone is protected.

J Varale: is it taking us to that submission that if I am a believer, I may not be a rationale. If its a long stand practice, accept it and I should follow it without going into all other aspects. It is possible that a believer at some time in earlier years was thinking this way but a believer now with the advance of technology, education, thinking and having exposure to other philosophies, can we say that a believer, if he believes, its okay and fine. You need not to be a rational.

J Bagchi: if you say a religious practice is unique to the denomination, and therefore, anyone who believes and is a part of the denomination,is a believer and naturally will defer to it? If that argument holds, then will you agree that it will be contra to an inner debate in the denomination itself, with regard to what ought to be a religious practice itself? In this situation, what would be the role of the court?

J Varale: is it taking us to that submission that if I am a believer, I may not be a rationale. If its a long stand practice, accept it and I should follow it without going into all other aspects. It is possible that a believer at some time in earlier years was thinking this way but a believer now with the advance of technology, education, thinking and having exposure to other philosophies, can we say that a believer, if he believes, its okay and fine. You need not to be a rational.

J Bagchi: if you say a religious practice is unique to the denomination, and therefore, anyone who believes and is a part of the denomination,is a believer and naturally will defer to it? If that argument holds, then will you agree that it will be contra to an inner debate in the denomination itself, with regard to what ought to be a religious practice itself? In this situation, what would be the role of the court?

Giri: therefore, two lines of two platforms of inquiry-whether is a secular or religious and when we find it is not secular but religious, we stop there.

J Amanullah: then we have to be take it on case to case basis.

Giri: when a practice of a religion is associated with the religion as a whole, it need not be taken as a case to case basis.

J Nagarathna: are you expecting there should be a determination?

Giri:the question as to whether it should be to ascertain with reference to the tenets of the religion is only to show that it is a religious practice.

J Amanullah: then we come back to the moot question-there has to be some sort of even a threshold, prima facie or tentative to be gone into whether its an religious practice. we come back to the same quesiton, waht extent?

J Nagarathna: once you determine a practice stricto senso as secular practice, all others become religious practice. where is the question of any authority or questioning whether it is an essential religious practice or religious practice. Yes, the line of inquiry could be whether a particular practice is a secular practice, that the court can determine. Then anything else would be a religious practice.

Giri: when its against public order, morality or health, the court is entitled to interfere. even though we are not under article 25(1), those words are actually used in article 25(2).

J Nagarathna: are you propounding this essential religious practice? Either it is a secular activity associated with practice or it is a religious practice. Once its a religious practice, there is no question of essential or non-essential.

Giri: that is correct

Giri: In Dargah Committee, this hon'ble Court proceeded to strine a note of caution and observed that even practice of non-religious may have sprung from merely superstitious beliefs and in this sense maybe extraenous and unessential accretion to the religion itself.

the court therefore held that the protection must be confined to such religious practice that are integral part of it and no other and was pleased to further find that the protection under article 26 may have to be carefully scrutinised.