Sabarimala Reference | Live Updates From Supreme Court 9-Judge Bench [Day 7]

J Nagarathna:for example, if a religious denomination believes that a lady who becomes a widow has to commit Sati and therefore, Sati must be abolished in the context of Article 25(2)(b), it can't be considered to an invasiton of a religious practice. we are giving you extreme examples. so social reforms will prevail there.

J Sundresh: how do you define social welfare or reforms? the question is only with respect to this, article 25(1)(a) says subject to public order, morality, health and subject to other provisions of this part, if you juxtaposed that to a religious denomination which you said is nothing but a collective of belief...can it be said that the power of the state to pass a law is confined to issues of due compliance of part III alone because anything else is not restricted to article 25(1). is it the proper way to look at it

Subramanium: my submission is part III is not available as a ground for legislation under article 25(2)(b) and nor is it available under 25(2)(a). 25(2)(a) &(b) may occupy territories which may have some, shall we say, idealistic overlap but the legislation can't be done with reference to Part III because what happens in article 25(2) is that it lifts and enables a legislation and it also removes the subjection to part III

J Sundresh: what if a religious practice directly comes in the way of other provisions of Part III? what will the State do

Subramanium: it depends on case to case basis

J Sundresh: under what provision of law will the state can assume

Subramanium:if a law has to be passed with reference to the opening part of article 25 or shall we say, opening part of article 26,you already have three grounds which are available-public order, morality and health. what article 25(2) does is-subject to other provisions is in context of protection and equal rights of religion which are granted to others. but I am saying anything that will come within the reasonable extent of social welfare and reform will pass.

a violation of fundamental right may acquire, shall we say, the appellantins and attribution of a social evil which needs to be addressed under article 25(2)(b), then legislature necessarily has that power.

Subramanium: that is why I am saying, please treat that there is an element of automatic strict scrutiny when you come to the words in clause b because you are passing a law to invade religious freedoms.

J Nagarathna: conversely, such a ban is questioned in a court of law, can the ban is struck down that it is not an essential religious practice?

Subramanium: it can be. that is why, please don't throw away the idea, please don't jettison the essential religious practice. but i will tell you how useful it is. J Gajendra in Dargah Committee, he was a progressive judge but also profoundly learned, he said don't allow anything extraneous (he used the word superstitious) to come into religious faith. it is completely unobjectionable because when a religous right is asserted the court will take care to see its a valuable religious right which is asserted.

Subramanium: let us take the example of superstitions or practice which are abhorent t constitutional morality , legislature can interfere on the grounds of social welfare and reforms. so its not that social welfare and reform is very limited.

J Bagchi: word is social reform and directive principles are constitutional visions so will the constitutional visions of the state be a part of social reform

Subramanium:very profound question, if you look at the preamble, there is coexistence of justice: political, social and economic.

J Baghci: why I am asking is we are delving on the question of constitutional morality vis a vis public morality. now if we are trying to eviscerate the two or differentiate the two, so when it comes to legislative competence of making inroads should we again make compartments between social reforms and constitutional reforms through enforcing visions as envisaged in Part IV as fundamental duties

Subramanium: mylords have said that constitutional morality could be conscience of one person but someone else may have a different standard of morality to judge it. as far as constitutional idelogy and assurance is concerned, its relevant for the state. if this freedom has to be preserved as a part of the basic fundamental freedoms which are integral to the basic structure, this freedom of religion and conscience which is inherent, then I am afraid we will have to read the power of legislation very strictly. And it must be able to establish a direct nexus between the need for that reform and the objective sought to be achieved by that legislative to accomplish that reform. otherwise, mylords, article 25(2)(b) will be completely overarching, or shall we say, it will be a silent inroad into religion

J Nagarathna: yes. suppose the kerala rules would have said in the name of social reforms, the entry of women between the age of 10 to 50 to the temple is permitted, is it an invasion or could we say its not an essential pratice and therefore upheld. what is the extent of invasion there?

Subramanium: even in that case, your lordships would have to be satisfied and would need to undertake an inquiry to see whether the exclusion as a part of ancient tradition, custom or usage 1. did not fundamentally take away the rights of the devotees to go to temple-that is the test. in other words, if its in a limited category, and its based upon a rational and it is a custom and a usage and it becomes to a denomination.

I submit with respect in such a case, if the usage is present, custom is present, it is entitled to respect ipso fact as a part of that tradition. Customs and usages can't be thrown away

J Nagarathna: it can be struck down but need not to be on the basis of essential religious practice, merely because of an invasion into the religious practice it can be struck down. it is only a cloak or colour of social reform

J Bagchi: i would understand you to mean that article 25(2)(b) is a narrow window of legislative competence vis a vis in accordance with law, qualifying clauses c and d of Article 26(1), management of property. That is any general law can interfere with the right of the denomination to hold and manage the property. but when it is impacting the affairs of religion, the legislative competence is to be proceeded to article 26(2)(b) that is social reform or welfare. so general law can't make an inroad.

so my next clarification is that the word is social reform and social welfare- will the state be understood to be within its limits if it says that its enforcing constitutional duties in enforcing a law or making a law within the ambit of social reform because the state has some constitutional duties envisaged under directive principles of state policy. it has the constitutional duties to enforce fundamental duties of the citizens. will these qualify for social reform legislations?

J Nagarathna: it should act as a stricture or an aiding tool for protection

Subramanium: [reads article 25] social welfare and reforms must not be a cloak, that is, it should not be a colourable legislation which actually seems to invade religious freedoms under article 26(b). Suppose there is something called social welfare and reforms, can it touch religious practice or essential religious practice? there it is necessary to satisfy the words social welfare and reforms. there is am element of scrutiny involved by the court to truly examine whether it is advacing social reform or it is nominee under social reform

J Kumar: in case of multiple accepted religions or practices, what is the juridical basis on which the court can interpret? whether the court can declare one is authoritative of the other or when a dispute arises within the religious practice or accepted practice within the religion?

Subramanium: one is intra denominatiomal dispute, the nature of a practice. in such cases you will need evidence.

the court asked a fundamental question, is the court devoid of adjudicatory power? the answer is the court is not devoid of adjudicatory power. there is no other place where legal rights or legal injury can be established except in a court

J Kumar: so the court will sit in the arm chair of ascertaining the theology of the practice?

Subramanium: there will be evidence

J Kumar: can we take that articles 226 or 32 will be barred?

Subramanium: in case of denominational fights, which requires evidence, i can say that articles 226 and 32 may be precluded. But if, suppose, there is no dispute at all. we can have cases where there is absolutely no dispute on fundamentals, then in that case the question may plainly arise whether its void or not

J Nagarathna: vis a vis the state

Subramanium: yes

J Sundresh: what is required by the court, the challenge will be only when the law has been created or where there is a vacuum...there is no need for essentiality, you will have to see where whether religious practice is there or not.

J Nagarathna: the court cannot sit in judgment as to what is an essential religious practice. well, the sabarimala controversy arises out of that can the court discover or distil and sit in judgment

J Sundresh: concept of essential religious practice, as you rightly said, if it exists, its renewed to the benefit of either a religious denomination or a group of persons seeking rights under article 25(1). when it comes to judicial review, article 25(2)(b) can on contigency be exercised over religious practice. that is why the distinction between article 25(1)(a) and (b). your argument is that you can still go and satisfy yourself by the court on the existence on the existence of essential practice preliminarily from the point of the view of the practitioner or the person who has that belief so as to exercise the power of judicial review in which case it will be a little more circumspect.

J Nagarathna: there is no need to go into the test of essential religious practice. An impression has been created that its only essential religious practice that has to be protected and nothing else.

Subramanium: this is, if i may say so, if the judgment suggests and I will not personally think they go that far to suggest that if its not essential religious practice, it denigrates into a non religious practice or will become a pratice capable of regulation. I don't think any judgment goes that far. But I would submit if essential religious practice is intended in aid of discovering the true components of that particular religion

Subramanium: the only reason why J Mukherjee [in Shirur Mutt] upheld the hindu endowments and charitable act was based upon the fundamental principle in hindu law thar donors foundations and his benedictions and his dedications must be truly honoured. that is, all that which comes out of that property must be ploughed back. It was evolution of the doctrine of trust and when they found that the traditional laws dealing with administration of trust was insufficient, there felt the need to address the need for the deity to whom a dedication has been made and a shivate must have in honesty in aid of an endowment became principles what sustained the law.

but under the guise of regulation, what was being attempted was actually to [takeover] the management of the temple, then its completely unconstitutional. while madras HC in shirur mutt struck down all provisions. J Mukherjee noticed section 92 of the 1951 Act, which clearly says no powers which will be exercised will interfere with the rights granted to denominations under article 26 of the constitution. This is the peaceful coexistence. when he founded that he trepassed to article 25(1) or denuded and couldnt be justified under article 26(b), he struck down all those provisions.