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

Sr Adv Guru Krishna Kumar: it is very well established that constitutional provision or the constitution is a gurudnorm, the highest form and out of which everything else emanates. all other form of state action, be it legislation, subordinate legislation, or even further down any kind of regulation etc, article 26 is the gurudnorm.

Sr Adv: three way formulation doesn't adequately address the meaning of a denomination in the context of heterogeneity of the hindu faith. a more appropriate definition would be- a collective or group of persons while belonging to a common faith, that is a religion, have special attributes by way of a belief system.

Sr Adv: article 25 refers to practice of belief system by an individual. when same practice takes place as a group, it acquires the colour of the denomination. i am consciously not going into whether religion is a denomination.

article 25 uses religion and 26 uses denomination

CJI: article 26 also encapsulates religious affairs but article 25 talks of religious practices

Sr Adv: article 26 talks of denomination or a section thereof. that is also important. general understanding of what denomination is there may be a group of people who may not fall within that but they will still be a denomination

Sr Adv: article 25 refers to practice of belief system by an individual. when same practice takes place as a group, it acquires the colour of the denomination. i am consciously not going into whether religion is a denomination.

article 25 uses religion and 26 uses denomination

CJI: article 26 also encapsulates religious affairs but article 25 talks of religious practices

Sr Adv: article 26 talks of denomination or a section thereof. that is also important. general understanding of what denomination is there may be a group of people who may not fall within that but they will still be a denomination

Sr Adv: on horizontal and vertical application of rights-in Kaushal Kishore [hate speech matter], mylords said look at the substance of the rights which are involved. based on that, take a decision how rights will horizontally or vertically operate.

article 25 refers to a religion which is practice of a belief system by an individual. when we move to article 26, we are looking at a group of persons who exercise their belief system.

Sr Adv: I go back to Sakal papers- gov bringing in regulation on number of pages a newspaper would have basedon the price that is being charged. that was questioned by the newspapers as being violative of article 19(1) rights. the gov took the contention that this is traceable to power to regulate business. Article 19(6) was invoked by the state to say this is justified.

mylords have specifically held that it can't be. whenever there are fundamental rights which are claimed and two of them are also involved, looking at freedom of speech and expression in article 19(1)(a) only those restrictions which are found in article 19(2) are to be considered.

if the measure of the state is not falling within any of those 8 heads of article 19(2) that can't be the basis for restricting the freedom of speech

CJI: you are invoking same approach?

J Nagarathna: the hierarcy of fundamental rights?

Sr Adv: In Sakal, mylords said all are enjoyed equally

Sr Adv: looking at article 26 itself, one important constitutional principle-restriction found in one fundamental right can't be read as a restriction on another fundamental rights itself.

Sr Adv: questions belong to potentially four scenarios

1. a believer belonging to a denomination questions customs and practices of that denomination

2. dispute between two believers within the denomination itself

3.non believer questioning the tenets and practices of the denomination

4. state intervening with some legislative measures which impact upon religious practice.

Venugopal: then there are created places of worship, I build a temple, they ought not be be acquired.

J Varale: out of anxiety, shravanabelagola is it a natural or created place of worship?

Venugopal: my friend Divan tells me its a created place of worship and possibly could be acquired

Venugopal: i am submitting those sites are never to be permitted to be acquired for any purpose unless the fate of the nation depends upon it.

second there are sites where thithankar have attained salvation, they ought to be kept sacred.

J Nagarathna:for the sake of public order, suppose two domination of the jain faith start fighting over a religious site and there is public order, then the state can intervene?

Venugopal: it can