Sabarimala Reference | Live Updates From Supreme Court 9-Judge Bench [Day 8]

Kaul: context has been right through in the context of governance even in the Indian debates. it was never ever a limitating principle for interpreting religion under articles 25 and 26. secondly, it one of the dangers of constitutional morality is that surely all fundamental rights, preamble, and everything else will come.

J Amanullah: not necessarily, it come in the abstract

Kaul: it pervades the entire constitution.

J Amanullah: the word morality and the word constitutional morality can we read it in a particular context? and [can] it include constitutional morality because constitutional morality may be a concept which is fluid, morality per se may be a straightjacket. one can't be changed-constant for all times. but constitutional morality itself can be a fluid, dynamic idea read with a context. so if we insert constitutional morality to articles 25 and 26, probably because of the language. constitutional morality, looking at the debates in the constituent assembly, it can be balanced to say that even constitutional morality would arrive at the same situation. [but] to straightaway reject constitutional morality

Kaul: it is abhorent to the civilised society.

Kaul: [what is morality then]-i have attempted to define what we think morality means-not societal morality but morality from the touchstone of the community. i have attempted to draw the anology in article 19(2) to say that even in questions of free speech, when decency and obsenity comes as an issue what is seen is viewership, readership, and audience into whose hand it goes. it is never seen from the lens of hypersenitive sensibilities of a generic lot.

Kaul: constitutional morality is itself aimed at harmonising and predicting all fundamental rights. it can't at the same time serve as a tool to import an additional restriction into articles 25 and 26.

refers to J Malhotra's dissent in 2018 Sabarimala judgment-this lays down the correct law

Kaul: infact, int he constitutional assembly debates, there is only one specific area where in phrase the concept of constitutional morality has been preferred.

Kaul: on issue of constitutional morality-constitutional morality is a concept that requires basic adherence to the provisions and norms of the constitution. it requires adherence to the constitutional core values of liberty, equality, fraternity, and pluralism and demands that courts in the state upheld these values, even against the contrary popular or social morality.

Kaul: when the state regulates under article 25(2)(b), it regulates a right of the denomination keeing in mind public order, health, and morality. but it can't say that I will reform a religion or a denomination out of existence

J Nagarathna: on the touchstone of public order, morality and health, if a legislation is made under article 25(2)(b), you can't say that the right of the religious denomination will still prevail. Ultimately, it is subject to public order, morality and health. that could be the basis for social reforms.

Kaul: I completely agree. in fact, in the constituent assembly debates, the original article 20 which is now article 26 the words public order, morality and health was not there when the discussion came up. Dr Ambedkar said, yes, we are introducing them in article 26 and the state can regulate on these three grounds.

Kaul: therefore individual article 25 claims can't overrive the denomination lawful exercise of article 26(b) unless one of these three heads are enganged. if individual article 25 claims could routinely override article 26, the essential of denominational autonomy would be hollowed out, defeating the constitutional purpose behind article 26.

refers to Devaru- it doesn't in principle of law says article 26(b) is subject to article 25(2)(b). It is only in the specific context of entry into temples. otherwise it says that both rights are coequal of equal strenght. in fact it goes on to say that in all other religious matters, article 26(b) would be given full play, except for the issue of entry into religious temples.