[Sabarimala Reference][Day-1] Acts Done In Pursuance of Religious Belief Are Also Part of Religion,Submits SG Tushar Mehta

The 9-Judge Bench constituted by Chief Justice SA Bobde has commenced hearing on the issues mentioned in the Sabarimala reference Order.Solicitor General Tushar Mehta commenced his arguments, drawing the bench's attention to Article 25(1)- " 'all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion'...'equally entitled'- this was taken from the British where it was used in the context of one religion and different aspects. Here, because the state has no religion, it means Hindus and Muslims are equally entitled, there is no dominance of one over the other""There are two limitations to this right- public order, morality, health, and any of the grounds in Part III...in Article 26, there is no Part III. Please mark the distinction. The administrative right of religious denominations is restricted by only public order, morality and health...essentially, Art. 26 would also be subject to other provisions of Part III. I am not making any high-pitched argument that it is not. Like R. C. Cooper says that each Fundamental Right is affected by the others...", he continued.#SabarimalaNine-Judge bench on hearing the issues of religious rights referred in #Sabarimala review has assembled pic.twitter.com/5btA0Tz613— Live Law (@LiveLawIndia) February 17, 2020Discussing Article 25(2), he advanced, "this is the most enlightening provision in the Constituent Assembly debates"In as much as sub-clause (a) of Article 25(2) permits the continuance of of a law "regulating any economic, financial, political or other secular activity which may be associated with religious practice" as well as allows the State to make such law, Chief Justice S. A. Bobde noted, "So the words preceding 'secular activity' are all secular activities...You can't regulate any religious practice but you can regulate any secular activity associated with a religious practice""'religious practice' cannot be regulated per se...There is no generis as such. But 'secular activity' will take colour from 'economic', 'financial', 'political'...", submitted the SG.Further, he proceeded to canvass the 7-judge bench decision of Shirur Mutt, which is propped up as being in conflict with the five-judge ruling in Dargah Committee- "One of the questions Your Lordships have framed is whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or group by filing a PIL. Can a busybody just walk inside the court and ask for a constitution bench to examine any religious practice?...the striking nature of each of the judgments that will be cited before Your Lordships is that, one, in those cases, the affected parties were before the court, and two, there was a challenge to a legislative act""The Preamble is not cited in any of the subsequent judgments. Your Lordships may take the view that 'religious practice' takes its colour from the Preamble- 'liberty of thought, expression, belief, faith and worship'. These are words in the Preamble to the Constitution, though not explicitly used in 25, 26", he continued.In so far as the apex court, in Shirur Mutt, relied on the Oxford dictionary definition of 'religious denomination, 'a collection of individuals classed together under the same name: a religious sect or body having a common faith and Organisation and designated by a distinctive name', the SG averred that the definition has come to be treated as "sacrosanct", as if it is a "statutory definition"."Your Lordships have to decide if the definition of religious denomination is correct", he suggested.In context of Article 26 conferring on a religious denomination the right to manage its own affairs in matters of religion, he quoted from Shirur Mutt, "The question is, where is the line to be drawn between what are matters of religion and what are not". "There is no clarity as to where 'religious practice' stops and 'secular activity' begins", he submitted."A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress", he recited from Shirur Mutt."Your Lordships have to decide whether all this falls under the purview of religion, and whether the essentiality test is correct. And if yes, that a ritual, observance, ceremony or mode of worship is an essential practice of a religion is to be decided by the court or by the religious denomination", he ventured."It is essential for counsel to wear a gown. That is decided by whom?", asked the CJ."See the major religions. Hinduism- Adi Shankaracharya organised it into 10 'maths'- each with different 'tilak', rings, name. There is pluralism- Shaivism, Vaishnavism...These also have denominations- some worship Lord Krishna in the form of a child, some worship Him as a King. In some...

[Sabarimala Reference][Day-1] Acts Done In Pursuance of Religious Belief Are Also Part of Religion,Submits SG Tushar Mehta

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