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

Sr Advocate Jai Sai Deepak(representing All India Organisation of Ajjappa temples, Shirur Mutt, Thanthri of Padmanabhaswamy Temple, Chilkur Balaji temple: I will focus on the relationship between articles 25 and 26. It is humbly submitted that in order to address the above questions, which is questions framed for reference and additional questions, a holistic understanding of Part III is called for of which articles 25 and 26 form part.

Since part III of the Constitution deals with fundamental rights, the following foundamental rights must be asked.

-who do these rights inherent?

-who are they available against or in relation to

-what is the nature of the rights

-what ate their limits and who enforces these rights

Shankarnaryan: articles 17, 23, 24 and 52 are horizontal rights and this becomes important dor the interpretation of article 25. Article 19 provides for freedom of speech and expression and freedom to form association. articles 19(1)(a)&(c) are controlled by article 19(2)&(4) which are controlling clauses which uses the word morality. There is an applicaiton of mind, specifically by the founding mothers specifically to employ different controlling phrases for each of the clauses

Shankarnaryan: so the scheduled caste and there right here that this is so called tainted, which existed all this while, is completely abolished. and more importantly, any disability arising from it goes means that it is something which has to be honoured by every individual, every entity, no matter who or what it is.

Shankarnaryan: it is only and only for those who are known as the scheduled caste today.

Shankarnaryan: the reaosn why I mentioned this, is because one of the arguments that we have had in the earlier sabarimala round was that this untouchability could possibly include anybody who is excluded from any particular practice. absolutely not.

Shankarnaryan: if you look at Article 15(5), it says aided or unaided by the State other than minority educational institutions-so when reservations are being provided, minority institution under article 30 are excluded by the constitution.

article 16 is also couched in that manner. Article 17, untouchability is abolished, and its practice in any form is forbidden. It is very strong terms to be used in a Constitution. the enforcement of any disability, arising out of untouchability, shall be an offence punishable in accordance with law. this is clearly an horizontal rights.

J Nagarathna: the expression untouchability, is within inverted commas. the framers, what they had in mind, bearing in mind the historical

Shankarnaryan: that is why Article 17 can't be read in isolation. it has to be read alongside with article 25(2)(b) making it clear for http://entry.it has to be read with provisions in article 331 onwards which specifically provide for commission and it provided for the only reservation that we had in the country in 1950 as a right as an assurance which was available with the SC, ST, and Anglo Indians in the legislature and the Parliament.

Shankarnaryan: where does the religion or the denomination stand?

J Nagarathna: 3(b) is a subordinate legislation

Shankarnaryan: that is the temple entry act-rather than allowing the entry of those women in that age group, the act bars it

J Nagarathna: so it was an indirect challenge to the customs and usages

Shankarnaryan: the question is, whether a right by an individual, which is what was discussed by Giri, was who can agitiate that right? and most importantly, against whom can it be agitated? if you come under article 15(2), which is in constract to both articles 14 and 15(1), it says no citizen shall. State doesnt' come to the picture. No citizen shall be denied on the grounds of religion, race, sex....so if there is access to restraurants, access to hotels, place of public entertainment and shops, and if there is discrimination on any of this ground, that discrimination, if its not being done by something which is run of by the state, its being done by private individual, corporations, that then right is given under article 15(2), it becomes a horizontal right.

why is why the distinction between vertical and horizontal right comes into play in article 25(1) because it says not only public order, health and morality but also other provisions of this part. Its not all provisions of this but places where horizontal rights are being agitated.

Article 15(3) says nothing in this article shall prevent the state for making special provisons for women and children-this "not preventing the state" is used in article 25(2) is an expressed used 60 times across the constitution.

Shankarnaryan: now articles 15(1)&(2), the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them. please note-sex is used here but you will later find when you come to articles 29 and 30 that its not used there.

based on gender, you can have classification there but you can't have it here and who can't have it? the state can't have it. but other individuals can, if there is a private company, and if my company recruits only women in employment, I am entitled to it under the constitution-nobody can raise the question.

Shankarnaryan: just see article 14. it says the state shall not deny to any person equality before the law, etc. so the state shall not deny-its couched in negative terms and the obligation is cast not on individual temples or denomination or groups but on the State. So, its clearly a vertical right.

Shankarnaryan: coming back to article 13, if you see these words are important fro two aspects of what we have been debating for the last several days-one is in reference to constitutional morality, and second about the operation of fundamental rights. 25 is admittedly an individual right and 26 is admittedly a group-denominational right; the question is, who are these rights against? which is why the question, again, come on the 1st day with the reference is vertical or horizontal