Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench [Day 16]

Gopal: all places of worship doesn't follow a uniform pattern- keeping this in mind there may be occasion where mylords would have to do a prima facie evaluation. CJI said when initial burden is discharged, the person would have to justify how is that justiciable.

whenever appropriate, mylords would differ.

J Nagarathna: usually when there is an encroachment or invasion into that the question would then arise

Gopal: the judgments in relation to conjunction of fundamental rights in Cooper, Menaka Gandhi etc don't operate in this sphere. in the very nature of things, the right to religion is contrarian to the principle of reason in article 14. these dimensions can't be tested with secularism.

articles 25 and 26 are unique provisions. article 25 says subject to other parts- the purpose of other provision can be divided into 3-

-the rights which follow article 25- 26, 27, and 28-they process freedom and also the man who created an endownment.

J Nagarathan; they are manifestations of these rights

J Bagchi: by that logic, articles 29 and 30 would also come

Gopal: when you read these rights, the landscape is very different against matters where you enforce right against the state

J Nagarathna: that is the why religion can be preserved in this country

Gopal: power is being conferred to denomination, or they will cause detriment to the rights- these are assumptions which we can't start with. mylords can also urge that denominations can exercise freedom in the reasonable matter.

on judicial review- since this is such a previous fundamental rights under articles 25 and 26, please don't divest your rights here because its the most sacred rights

J Varale: it may not be possible in reality always.

Gopal: I certainly can't rule out the possibility that mylords will be asked to adjudicate some religious practice which is abhorrent.

J Varale: there can't be handsoff approach

Gopal; no mylords, i am just requesting but keep it always available.

the faith of the believer and the legal adjudication of right- faith of a believer is subjective and courts can't review it. it is difficult to review acts related to conscience. however, if suppose a person were to assert...

J Bagchi: there is a difference between judicial review and judicial adjudication. the state of mind has always being a matter of judicial review. on a merit or value judgment, it may not be possible.

Gopal: it is through an evidenciary process where basic beliefs are set out to consider what is the injury, certainly courts have jurisdiction. what I meant is beyond that state of mind.

J Sundresh: individual right vis a vis the denominational right can't be treated at par when both are traced in article 25(1)- individual right to practice and profess is as good as the collective. the logical applies when individual tries to interfere with the right of the denomination

Gopal: an individual can profess and propagate by himself, he can write and speak about it. we have number of such individuals, perfectly legitimate under article 25(1). election of becoming a member of denomination is under article 25 but the moment you become a member, you trace your rights with the denomination.

J Sundresh: individual right vis a vis the denominational right can't be treated at par when both are traced in article 25(1)- individual right to practice and profess is as good as the collective. the logical applies when individual tries to interfere with the right of the denomination

Gopal: an individual can profess and propagate by himself, he can write and speak about it. we have number of such individuals, perfectly legitimate under article 25(1). election of becoming a member of denomination is under article 25 but the moment you become a member, you trace your rights with the denomination.

Gopal: once you are a denomination, you subscribe to a fundamental faith. when you are a member of the denomination, you tell others you follow certain tenets. the expression- managing the affairs is more which governs inside the institution, the exposition of the faith. these articles 26, 27, 28, 29 uses the word religion, religious practice, matters and affairs of religion, all these would be within the purview of the denomination.

Gopal: article 14 is the very antithesis of arbitrariness, but its quite distinct from the personal freedom under article 25.

article 25(1) is wide expansive sphere of individual freedom- there are stages of belief and disbelief, withdrawal of disbelief etc., simultaneously, you can move from other teacher to another. all this is protected under article 25(1) and therefore, we have to treat conscience independently.

in article 25(1) why is the collective not there? everybody said its the repository of individual and collective and article 26 is merely an enlongation of article 25(1).

an interpretation by which fullness by which a right is upheld is more preferred than which dimnishes a right. if the words of the constitition is clear, there is no scope to apply the theory of implied limitation.

the nature of individual freedom under article 25(1) is not the same as denominational freedom under article 26.

Gopal: Ms Jaising said that very accurately that these tests have nothing to do with this. its incapable of application. articles 25 and 26 may overlap, but they are capable of operating in distinct spheres; there would be no tension and conflict. even the quesiton of harmonisation would not arise- harmonisation is a sound rule to solve the mild tension between two competing rules.

One point of J Varale on rationality- the question stayed with me throughout the hearing-the scope and length of judicial review is not the same as Article 14. In other words, an irrational factor is relevant with Article 14, but for Article 25, the test of rationality doesn't apply.

Rohatgi: last 75 years, there has been no excommunication. he doesn't have some diabolical bond that he can do anything.

Senior Advocate Gopal Subramanium: 4 submissions- judgment of HC of Gujarat erroneous-majority said that if she is still carrying out her faith as Parsi, it is a matter of evidence. Unanimously all judges relegated the petitioner to a suit. I sincerely urge we don't have to go into the facts of these cases.

Right located under article 25(1) or is 26 capable of independent standing

principle case plural drafting-all articles to be read together would apply to these articles 25 and 26

question about religion and religious denominations- I maintain religion is established doctrine of faith as commonly understood, denominations are those who belong to that faith-suggestion that religious denomination are extrapolate to the entirety of religion is not accurate

in our constitution, it is a misconception that we have hierarcy of rights- all FR are FRs, they are entitled to protection, they may collide but we have useful tests- reason why i say this is because of single or double proportionality, those are principles in relation to adjuding whether a right is breached and whether measure taken is proportionate or disproportionate

Senior Advocate Mukul Rohatgi: Syedna represented the community. [answering the issue raised by bench that the 1949 Act could have been read down instead of holding it unconstitutional in Sardar Syedna judgment] 5 pages of the judgment are devoted to the intervenor which the respondents are taking that he has power excommunication etc. I am an intervenor to the 1986 writ petition.

so called Board which is not registered, he died and its taken by another. the writ is abated, there is no person. finally, Syedna judgment is a very wrong bench and a very strong bar. Bar was represented by KM Munshi, member of the constituent assembly.