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

Sr Adv Gopal Shankarnaryan(appearing for review petitioners and other group of devotees): I am completely in accord with Mr Subramanium that we shouldn't be looking at the facts of the individual case.

when mylords are looking at it from the perspective of 9 judges, we are transporting ourselves back to 1950 effectively. And all judgments which have come before would possibly give some guidance. The approach I am adopting is to first look at the larger scheme of the Part III of the Constitution in the backdrop of religion and denominations.

2. bearing in mind what specifically are the religious practices and issues that we constantly see. look at different aspects. one is looking at mutiliation, the other is looking at parsi women marrying outside her community and if she is allowed entry into the fire temple-there are different issues that keep coming at every stage. We have had the issue with hijabs in schools.

So there are multiple issues which will arise in a country which is so rich in its culture and so rich in the practices that you have. In this backdrop, I was wondering we if could explore how Articles 25 and 26 lies and its interaction and what flows from it.

Sr Adv Gopal Subramanium: my position is on the point of principle as a matter of legal construction. I have difficulty with the majority opinion in Sabarimala as a matter of law. These questions will have to be first answered, in my submission, in an abstract manner, without reference to facts of any case. requires some degreee of reflections, rumination. it requires extreme though because we are dealing with very profound areas of personal faith, we are also dealing with collective faith and and we should not forget, we are dealing with all religions in this country.

Giri: if shirur mutt has been diluted to some extent, then its my submission that Shirur mutt must prevail. whether there could be court interference at all, the interference is only for distinguishing a religious practice and a secular practice and not to determine whether a religious practice is essential or not.

Giri: however, irrational it may appear to persons who do not share the religious belief, the view of the denomination must prevail. for it is not open to the court to describe as irrational that which is a part of the denomination.

Giri: this hon'ble court did not deal with any distinction between essential religious practice or otherwise. the distinction dealt with and referred to was between a religious practice and a secular one. This Hon'ble Court in dargah committee emphasised the need for the judicial restrain while dealing with matters relating to religious practice.

Giri: in shirur mutt, this court went on the essentially uphold the autonomy of a religion denomination to determine what would be considered as a essential religious practice. therefore, religious denomination or organisation enjoys complete autonomy and in the matter of deciding as to what rights and ceremonies are essential according to the tents of the religious they hold. and no outside authority, and this would probably include the court has any jurisdiction to interfere with the decisions in this matter.

Giri: you answer the question which fell from mylords, if there is a complete ban on anybody becoming a priest and by priest it means the person who is instructed in the shastras how to conduct worship, and if there is a complete ban on a person becoming an archakas or priest and then doing sevas as well call it, that will be taken care either by article 25(2)(b) or by the faith itself

J Mahadevan- is it not elaborately discussed in Adi Shivarcharya's case. just go through, each and every aspect has been dealt thoroughtly

J Nagarathna: if the practice associated with a particular deity invokes certain agamas, certain way of worship and one of which may be that persons who are qualified to do that worshop only can do that workship. Therefore, a believer beliefs that only certain persons with qualification can do that worship and the benefit of that worship, the believer also gets. In some shiva temples, you can put water on the lingams but in other temples, you can't because that is part of what they call it as anushthanas or the practice. It is nothing to do with untouchability as such.

J Amanullah: its a permanent disqualified just on the basis of something which I have no control in future and i can't change my position, even if I want to.

Giri: if its merely birth, it constitutes a disqualification for a person to become an archaka, then in my respectful submission, that would be wrong and that would be invalid.

J Sundresh: that will come under article 25(2)(b)-social reform

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?