Bench rises and will continue tomorrow.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Bench rises
Centre had earlier argued that the Sabarimala 2018 judgment proceeds on an assumption that men are superior and women occupy a lower pedestal. (File photo)Sabarimala Reference Hearing From Supreme Court Today Live Updates: The Supreme Court today said that the apex court has to be “consistent” and cannot change “colour” overnight.
The sharp remark of Justice Nagarathna came when senior advocate Raju Ramachandran was addressing the court on behalf of a petitioner claiming to be a reformist member of the Dowoodi Bohra community.
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The judge expressed preliminary reservations about a prayer seeking the setting aside of a judgment in an Article 32 petition. Justice Nagarathna insisted that Ramachandran addressed the court on the point of maintainability. The deliberation also saw the judge expressing concerns over the practice in the apex court of entertaining Article 32 petitions despite the existence of judgments from Constitution benches.
“We are also ultimately conditioned.. by the hard, rigid discipline on us. That a Article 32 petition comes, you disregard a Constitution bench judgment, you start giving your own judgment, setting it aside. A two-judge bench can do it tomorrow..We are concerned it’s a serious matter on practice of this court… We have to get over that first,” Justice Nagarathna said.
Justice Nagarathna today said that the apex court has to be “consistent” and cannot change “colour” overnight.
Ramachandran responded, saying he will answer it with the seriousness which the question deserved.
Justice Nagarathna continued, “Unless you get over that, how can we hear you on the merits? Because it is always limiting our.. That we cannot entertain a petition on merits unless this is sorted…the decks are cleared.”
Ramachandran further told the bench, “As members of the bar, we also act with a sense of responsibility, and we are as interested and concerned for this court that the right law is laid down. And in a reference like this, the result doesn’t matter. We are all assisting in a non-adversarial way. I only assure that this question will be answered fairly and squarely. But since this is not one of the seven questions referred to, let it be the eighth question, which I’ll answer at number eight.”
Justice Nagarathna went on, noting, “Yesterday, we were saying on merits why that writ petition was entertained in Sabarimala. Today, we can’t change our colour and say why your writ petition should also be entertained. We are the same nine people here…What came out of Sabarimala yesterday? We said, ‘Why was it entertained?’ Today, what we should say?..Both are Article 32.”
The Supreme Court today continued the hearing of the Sabarimala case. This was the twelfth day of this hearing, which started with the submission of senior advocate Khambata continuing his arguments.
The case concerns discrimination against women in places of worship, including the Sabarimala temple, and the scope of religious freedom under the Constitution.
What happened in the last hearing?
The Supreme Court, in the last hearing on Tuesday, said that the religious practice will not “extend” to the “exclusion” of certain castes. “That is not religion, neither is it religious practice,” Justice Nagarathna said.
The court responded when the senior advocate Darius Khambata said that religion is to be tested under the Constitution. “Is it moral under our Constitution? For example, what if a religious practice is casteist?” he said.
The apex court today also rapped the Young Lawyers Association, advising them to work for the welfare of the bar and the younger members.
The apex court questioned the objective of filing the present PIL from the counsel of the Young Lawyer Association and also asked if the deity has a “belief” or “conscience”.
“Now, we want to know why you filed this PIL at all? What was it that you wanted to achieve? What does it come out of it?” Justice Nagarathna added.
Previously, the Supreme Court was hearing the submission of senior advocate Jaising, who also noted that Shabari was a woman who offered berries to Shri Ram.
She concluded last day’s submission saying,” I am also a Shabari. You are keeping me out. That is the end of the story.”
Previously, the Supreme Court also emphasised the uniqueness of our nation: “diversity” is our strength.
“We are strong because we are diverse, and diversity is our strength, and to bring about a recognition of the diversity in denominations, Article 26 (b) protects it. By giving such protection, there is also a unity developed in the country,” the court added.
Justice Nagarathna previously questioned how a person in north India can claim the right of entry to a temple in the south when senior advocate Indira Jaising was arguing that the exclusion of women aged 10–50 violates.
The Supreme Court, on day 9 of the hearing, previously clarified that the state can “step in” when religious activities affect public order, such as blocking roads, noting that such acts cannot be justified as part of religious practice. It further observed that while autonomy in matters of worship is protected, only activities of a religious nature fall within that protection.
“Apart from that, if a secular activity is also getting affected, then the state can step in. There has to be a balance,” Justice Nagarathna said.
On the eighth day of the hearing, the Supreme Court cautioned on sharing information from “WhatsApp university” when one th counsels, senior advocate Neeraj Kishan Kaul, cited the words of politician Shashi Tharoor from an article published in The Indian Express-“When the gavel falls on matters of deep-seated belief, it must do so with an awareness of the limitations of legal logic.”
Justice Nagarathna responded with this caution when Kaul contended that there is never any harm in all humility.
“If knowledge and wisdom come from any source, any country, any university, it should be welcome,” he added.
The Chief Justice of India then further added that the court respects all eminent persons, but personal opinions are “personal opinions”.
Nine-judge bench: Chief Justice of India Surya Kant will preside over the bench, which will include Justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi.
Questions for consideration: There are seven questions for consideration before the court:
- What is the scope and ambit of the right to freedom of religion under Article 25 of the Constitution of India?
- What is the interplay between the rights of persons under Article 25 of the Constitution and the rights of religious denominations under Article 26?
- Whether the rights of a religious denomination under Article 26 of the Constitution are subject to other provisions of Part III of the Constitution, apart from public order, morality and health?
- What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution, and whether it is meant to include constitutional morality?
- What is the scope and extent of judicial review of a religious practice under Article 25 of the Constitution?
- What is the meaning of the expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution?
- Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?
Live Updates
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Bench on excommunication
Justice Amanullah: The remification of that excommunication is all there; what is given is an oath? What is all mentioned in the oath ramification of excommunication?
Raju: Yes, sir, because once you have pledged you allehience to someone who is master of your life, then you can’t start a magazine.
Justice Amanullah: It’s very revealing, I never knew all this…very, very revealing.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Raju on imposing religious discipline
Raju: The question, therefore, is not one of imposing religious discipline, which we may assume that every religion would need to keep its flock together. The question is of the proportionality of that punishment and its impact on human dignity.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Raju on golden triangle
Raju: Why I keep saying individual is because of dignity, because of equality and because of liberty, the same golden triangle.
Excommunication practice, I must explain briefly, which is and let me say at the outset that this is not unique to the Dawood Bohra Community. They can be different kinds of religious punishments, in order to keep the discipline of the faith
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Raju's thrust of submission
Raju: The thrust of my submission is going to be that it is an individual who is the heart and the soul of the Constitution, right from the preamble, fraternity, but my lord, respecting the dignity of an individual.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Bench on changing colour overnight
Justice Nagarathna: Yesterday, we were saying on merits why that writ petition was entertained in Sabarimala. Today, we can't change our colour and say why your writ petition should also be entertained. We are the same nine people here…What came out of Sabarimala yesterday? We said, "Why was it entertained?" Today, what we should say?..Both are Article 32.
Raju: I don't want to answer the Sabarimala question.
Justice Nagarathna: …there’s no five-judge bench. In another case, in your case, there is a five-judge bench decision…We have to be consistent, sir. We can't change our colours overnight.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Bench on existence of court, judges
Justice Nagarathna: Because today we are here, tomorrow we are not here, but the court is there, and judges are here in future, advocates are here, and the court should continue. That's our concern. The apex court of this court should continue in that way… Give us that citation.
Raju: I'm giving a note. I’m not giving one case. I'm giving a complete note. It'll be added to your Lordship's compilation this evening if your Lordship so desires. The note has been prepared. One has worked on this note ever since that question came.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Counsel on sense of responsbility
Raju: As members of the bar, we also act with a sense of responsibility, and we are as interested and concerned for this court that the right law is laid down. And in a reference like this, the result doesn't matter. We are all assisting, in a non-adversarial way I only assure, that this question will be answered fairly and squarely. But since this is not one of the seven questions referred, let it be the eighth question, which I'll answer at number eight.
CJI: Right now, you can simply say it is not a grey area for this court. There is a case law. There is a discussion. There are judgments. We will see that entire aspect…What my sister said is a very important question. That you will have to respond to.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Bench on being conditioned
Justice Nagarathna: We are also ultimately conditioned.. by the hard, rigid discipline on us. That Article 32 petition comes, you disregard a Constitution bench judgment, you start giving your own judgment, setting it aside. A two-judge bench can do it tomorrow..We are concerned it's a serious matter on practice of this court… We have to get over that first.
Raju: I will answer it with the seriousness which the question deserves.
Justice Nagarathna: Unless you get over that, how can we hear you on the merits? Because it is always limiting our.. That we cannot entertain a petition on merits unless this is sorted…the decks are cleared.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Bench on meritorious cases and bad practices
Justice Nagarathna: Merits, you may have a good case. We are not commenting on that.
Raju: I’m only giving this as a background, and I will be addressing maintainability again.
Justice Nagarathna: Hard facts should not make bad law. Meritorious cases should not lead to bad practices or bad practices cannot be the means. We are very concerned with it…We are not saying anything on the merits. You may have the best of the cases…You can argue, but you have to address us on this.
CJI: Mr Raju, this issue you can address in the last…Don’t carry this, this preliminary objection from our side should not be the preliminary burden on you.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Raju on what deserves to be law
Raju: So no affected person, unlike that list, unlike that suit, where the real practices were before the court, here comes a pure and simple thirty-two petition without facts before it. And that is decided by a Constitution bench of five judges where there is one dissent, where the then Chief Justice BP Sinha was the lone dissenter. And I am going to contend that like five other great dissents, which in the seventy-six year history of this honourable court have later become law, Chief Justice Sinha's judgment citing individual dignity and Article twenty-one deserves to become the law today. Eight years before RC Cooper, 15 years before Maneka Gandhi, Chief Justice BP Sinha saw the interplay of fundamental rights..
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Raju's submission over previous orders
Raju: And the division bench upholds the validity of this act as a measure of social reform. Therefore, the legislature stepped in immediately, my Lords, in 1949, once the Privy Council gave its final judgment. Act upheld by single judge and division bench of the Bombay High Court. Appeal filed in this court, but the appeal…. (inaudible) so the validity of an act which was tested in the context of a real and actual risk because it came up in a suit, that act in that context which was upheld could not reach finality. So the question of validity did not reach finality in this court only because that appeal failed on technical grounds. Then the then Syedna, files an Article 32 petition challenging the constitutional validity of that very act which….(inaudible) Bombay, which became Maharashtra. There was one intervener.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Raju continues his submission
Ramachandran: When I, when I tell your Lordships the sequence of how the Sayedna case itself came to this court in 1962, everything will fall into place. What was the original list? Where the Syedna lost after having lost a civil litigation and because his appeal and therefore... that's why I started by saying Privy Council judgment first. Just give me three minutes.. to give these basic facts. 1948, in Hassan Ali's case, the Privy Council upholds the practice of excommunication, the power of the Dai, subject to procedural safeguards such as giving notice, opportunity for atonement, et cetera, 1948, two years before the Constitution. 1949, even before the Constitution comes into force, the Bombay Legislature passes the Bombay Prevention of Excommunication Act.
Two my lords curbed this mischief as a measure of social reform. In a pending suit by an excommunicated person against the Syedna, and all these men came before distinguished judges who later came to this court or attained, my Lords, great eminence. The single judge was Justice JC Shah, who later became Chief Justice of the Supreme Court. And in that, in the course of that suit, this act was shown, the 1949 Act. And the single judge held that, yes, this act would cover the case of the plaintiffs because excommunication is a continuing act.
This goes on appeal before a division bench of the Bombay High Court comprising Chief Justice Chagla and Senior Justice Bhagwati.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Bench seeks reasonability
Justice Nagarathna: I think you should start with reasonability first.
Raju: Is that the view of all your Lordships, my Lords?
Justice Nagarathna: I think we can raise another question on the maintainability also.
CJI: You may proceed the way you want…But just keep these two questions in mind..
Raju: But all that I'm trying is that since this is not the immediate subject of the reference, let me answer, and after all, I've been sent here by a five-judge bench to address on these issues.
Justice Nagarathna: Mentioning the memo, we find the order. First is rule nisi (rule to show cause). Then on a mentioning, the then Honourable Chief Justice one line order “refer to seven judge”. Because Shirur Mutt was seven judge. Petition is referred to seven judge…Article 32 petition is straightaway referred to a seven-judge bench.
Raju: But didn't the court later correct its own error, my Lords? Justice Lahoti's bench, 2004. That seven judge bench reference was recalled. Sometimes courts commit errors and then courts correct their errors. All that I wish to assure…
Justice Nagarathna: No, that is all on the premise that the Sayedna case can be overruled in an Article 32 petition. That is staring at us.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Ramachandran on his submission
Raju: But unlike some recent petitions which have been entertained, unfortunately in this court—which might have been passing in my Lord’s mind—and some, I say with great respect, as a senior member of the Bar, have been wrongly entertained by this Hon’ble Court, showing not just lack of judicial discipline but lack of judicial statesmanship. One day, a Constitution Bench says the Places of Worship Act is part of the basic structure of the Constitution. The next day, a writ petition is filed challenging the validity of the Places of Worship Act. Notice is issued, creating all kinds of tension, and then this Court has to pass an interim order saying further suits will be stayed. Those are instances which needs great circuminspection. But when I come here, and let me assure my Lords, that this issue is going to be addressed, though it is not one of the questions framed for the reference. This issue will be argued both before the five-judge bench to which this matter will go back. But in any case, at the end of my submission, I will squarely address this issue with reference to cases of this honourable court which deal with this principle of when a 32 petition can be entertained, where a judgment of this court is questioned. There is a very detailed judgment, my Lords, of Justice Ravindra in the matter which I'll cite, and I'll cite some other cases also. Therefore, there's no running away from this….may I proceed now.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Ramachandran starts his submission
Senior advocate Raju Ramachandran starts his submission.
Raju: I represent a group of reformist Dawoodi Bohra. And one person whose father, the late Asghar Ali Engineer, was the victim of excommunication and whose family suffered. The issues I am highlighting here of excommunication impinge on human dignity.
Justice Nagarathna: You are asking for the setting aside of a judgment of this court in an Article 32 petition.
Raju: Let me address that separately. That question is not being run away from. The issues here are this. First comes a judgment of the Privy Council in 1948.
Justice Nagarathna: The judgment of this court is a judgment of the Supreme Court of India. Article 141 is there….It may be a right judgment, it may be a wrong judgment. How do you get the judgment set aside? You file a review. Now, there is also a curative or a larger bench. If it is, that's a five-judge bench; a seven-judge bench can set it aside…Not through an Article 32 petition…We are very apprehensive of it. Reformist mindset, all that is good, but the road taken, the means must be as good as the end.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Shrivastava concludes his submission
Shrivastava has concluded his submission.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Bench on marriages
Shrivastava: According to the high court, there is a presumption that upon marriage, there is a deemed conversion, my lord, and you, if you are esteemed to maintain the position of your social status that you have not converted to the religion of the husband, you should go and revert this presumption and go and file a civil suit and have a declaration.
Justice Nagarathna: Ultimately, the whole thing is what is a religious practice, because in Sabarimala, the religious practice is the basis for saying the prevention of entry. Here, it all depends on the nature of the marriage. Hindu marriage is a sacrament, Muslim marriage is a contract, and a special marriage is a statutory marriage. If it is a statutory marriage here, it is a prevention, a prevention of entry. Here, they are claiming entry; there, they are claiming entry. It's all subtle.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Bench on Article 25 (1) versus Article 25 (2)
Justice Nagarathna: See, actually, what is in contradiction in Article 25 (1) versus Article 25 (2), because there is nothing in Article 25 (1) versus 25 (2). In order that anything falls within Article 25, (2) (a) and (b), Article 26 is an aid because it’s purely secular, where the state can make a law. But something touching upon the matter of religion is guaranteed under the denomination under Article 26, then it is violative of Article 25 (1). They are not purely secular. That law can be challenged.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Shrivastava on judicial review
Shrivastava: No one can say that judicial review is not possible. It is not a question of absence of jurisdiction of judicial review, but it is always a question of the extent of exercise of that jurisdiction in a particular case.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Shrivastava on denomination
Shrivastava: So far as the correctness of the religious practice is concerned, its origin in the religion is concerned, he cannot…, but supposing his religious practice is being imposed upon him by part of the denomination is a violation of the Constitution’s fundamental rights.
Justice Nagarathna: One way of looking at it is that Article 26 is a denominational fundamental right. Yes, there the individual is subsumed in the denomination, and the denomination has the fundamental right. Therefore, this question of whether a person belonging to the denomination can question any religious practice of that denomination may not be restrictly; it cannot be raised, because he belongs to that denomination and follow, he cannot raise a dispute.
Shrivastava: So far as the correctness of the religious practice is concerned, its origin in the religion is concerned, he cannot…, but supposing his religious practice is being imposed upon him by part of the denomination is a violation of the Constitution’s fundamental rights.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Shrivastava on ultimate question
Shrivastava: The question ultimately that before mylord will have to decide is this—whether, by joining a denomination, the personal fundamental rights of a person are integrated or taken away.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Bench on freedom of group, individual
Shrivastava: Articles 25 and 26, they operate in their own area, and so also 28 and 29. There is no conflict between the two because the others are sub-extensions of the right, which are ingrained in Article 25.
Justice Amanullah: Is it the other way around? Freedom of the group has to be larger, no. So, individually restricted to the individual, the group means it can have that manifestation.. organised to have an institution, to create an institution and manage the same. I am in my own home, I myself only—it is only me..me..me.. How you justify this statement?
Shrivastava: I see the point.
Justice Amanullah: It should be interpreted as an extension, maybe it’s an extension as a right under 25.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Counsel over Article 26
Advocate Ravindra Shrivastava: By being part of the religious denomination, the personal and fundamental right of the person guaranteed under Article 25 is not whittled down in any manner, otherwise it will mean that by joining the group, an individual would lose his personal identity. Similarly, being part of a religious denomination, a person does not lose or has lesser fundamental right than what is guaranteed by him or her in Article 25...
My understanding is that the Constitution gave every person the right to freedom of conscience. Now, how does one will practice, profess, propagate without his or her common belief where he may not form a sort of a denomination. He has to make a group, my lord, individual; it may not be possible.
My respectful submission, my lord, is that all my lord derives from Article 25 only. Each one of these, also heading to establish and maintain an institution, my lord, is a manifestation or amplification of the right to practice, profess, and propagate religion.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Counsel over Article 26
Counsel: In my respectful submission, Article 26 does not create any new or independent fundamental right beyond Article 25. Rather, it gives extension and effect to the freedom of conscience by enabling individuals to organise themselves into a religious denomination. It facilitates the implementation of this freedom when individuals come together to form a collective religious denomination.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Counsel arguing over right to practise religion
Counsel: The Constitution guarantees every person the freedom of conscience. The question then arises—how can one practise, profess, and propagate religion without sharing one’s beliefs with others? A common belief, when shared among individuals, naturally takes the form of a denomination or group. Individual practice alone may not always be sufficient. Therefore, for the purposes of practising and, more importantly, propagating religion, collective expression becomes significant.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Bench resumed hearing
Nine-judge bench resumed hearing.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Bench to resume hearing post lunch
Bench rises and will continue post lunch.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Counsel adding points to Khambata's submission
Counsel is reading his submission and will continue after lunch.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Counsel adding points to Khambata's submission
Counsel: I’m not doubting jurisdiction, the Lordships so far when you’re not sitting at nine judges’ combination. A larger bench will..to reconsider if it becomes so necessary. If there is a manifest erroneous interpretation given by the court earlier, maybe not in ignorance of any procedure of law or the Constitution, or maybe not in some precedent and it is so imminent, may not be eminently necessary in public interest to prevent a mischief for the public injury. I'm not doubting my lords.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Another counsel adding points to Khambata's submission
Another counsel has started his submission adding points to Khambata's submisison.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Counsel on his party
Counsel: I am representing the intervenor.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Counsel on Article 25
Counsel: I would respectfully submit that please, ultimately, to achieve the balance as Mr Khambata has submitted before your lordships, the exercise of rights by the religious denomination under Article 26 ought not to trample upon the exercise of rights by the individual under Article 25, and that would really be the balance.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Counsel on Zoroastrian and Parsi
Counsel: Zoroastrian and Parsi are used interchangeably. Zoroastrianism is the religion of those who follow the religion professed by Prophet Zoroaster. We are all Zoroastrians once our Navjote ceremonies are performed, we are inducted into the faith. Though the words are used interchangeably in common parlance, effectively, that is the difference between the two words.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Counsel adding points to Khambata's submission
Counsel: Today, my lords, your race, your ethnicity is an accident of birth. How can that, with the greatest of respect to the Gujarat judgment, ever be taken away from you by your act of marriage? To hold that you cease to be a Parsi.. but to say that you cease to be a Parsi because of your marriage to a Hindu man, with the greatest of respect, a lot can never be.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Counsel adding points to Khambata's submission
Another counsel is submitting and adding few more points to the submission of Khambata.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Khambata concludes his submission
Khambata: Your lordships are called upon to interpret a constitution, not just a mere statute, and that interpretation will impact the lives of over a billion people because religion is so important in our country to everyone. Please keep in mind that constitutional silences are not the same as constitutional vacuums. So many matters, my lordships, without express language, have decided, starting with the collegium system on Article 124, right to health, right to privacy, right to decisional autonomy on Article 21, doctrine of arbitrandous and Article 14, there is no express language. Nevertheless, your actions have read that have given meaning to the silences and content of the silences. So both, Articles 25 (1) and 26 must continue to reflect what I started with our ancient civilisational values, of mutual respect, tolerance, peaceful coexistence and plurality of belief, practice and decisional autonomy.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Khambata on Articles
Khambata: So, in other words, does Article 26 (b).. is it given a hierarchy of higher status than either Articles 25 (1), 21, 15, 14?
CJI: We will be required to follow only when we agree with this perceived vertical conflict between Articles 25(1) and 26.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Khambata on injunction
Khamabata: But where I have been going and people similar to me have been going and suddenly I'm stopped and surely the burden is on that person to establish it in a civil court. That's my submission.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Bench on filing mandatory injunction
Khambata: Secondly, indisputably the same denomination, assuming it's a denomination. Different parts of the same denomination follow different practices. Also, it shows it's not a practice of the denomination. But my Lord is right.
Justice Nagarathna: If it's not a matter of religion with regard to this non-entry, then you can always seek a civil relief.
Khamabata: I can always seek enforcement of the trustee because it's not a matter of.. it can't be a matter of religion if some people are out, some people don't... within the same denomination or the alleged same denomination.
Justice Nagarathna: Then file a suit for mandatory injunction.
Khambata: I don't need to is the other way round. I was always entering. If the current administration stops me, they would have to establish the exclusionary practice in a civil court. That's what the high court also seems to.....
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Bench on denomination
Justice Mahadevan: Are you saying that the practice, which should be uninterrupted, being followed for a long period, is not subject to somebody who is managing the affairs of a denomination? And if there is a change in the practice or there is an interruption in practice, then such practice is not necessarily religious practice or essential religious practice being followed uninterrupted.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Khambata on elephant in the room
Khambata: As a matter of fact, that is a finding of the high court, and they said no material was put before us to show that even a non-Zoroastrian cannot enter. Now, I must say in fairness to the other side, before, my lords, they produced a whole lot of material, and we have counted that. I am going into the facts of the case, but my lords may take it that there’s nothing in the material they produced which at all shows that there is anything in the religion that somehow prohibits, ostracises or excommunicates only a Parsi lady for intervarian. They have relied on certain texts, which is also wrong.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Bench on religious denominations
Justice Sundresh: Now, you are asking us to get into the arena where…how to adjudicate upon the rights of A against B. It is dark…slightly rely upon the professor Prashan Kishor and say when…you define a non-state actor, it will be an unknown face. But what you are actually contending and expanding that to mean a member of a denomination, who is not in agreement with the religious practice, can actually question the religious denominations?
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Bench on lady marrying outside her religion
Justice Nagarathna: Secondly, whether this ban on the lady marrying outside her religion. Whether is it a matter of religion?
Khambata: No, I can quickly say it is not. And let me put it another way, the high court itself has found that even a Parsi lady marrying outside retains her religion. As a matter of fact, that's a finding of the High Court.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Khambata about cited cases
Khambata: There will be cases and cases and again not because I want to cite the facts of my case, but my case is a good example to give. In my case, no practice has been set up because in fact, we are produced letters and resolutions from various Parsis and humans all across India, saying we always allow women in general cases.
In a given case, a practice may not be set up. That's what I'm saying. I'm trying. I'm trying. Mine is only an example. There may be a start with, not a practice, then a court is not. Then a court has to look at the trustee and say, does the trustee permit you or not. That's all.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Khambata about cited cases
Justice Amanullah: Is your quote of Ratilal Panachand Gandhi correct?
Khambata: Yes
Justice Amanullah: Proved undoubtedly to the belief of the Zoroastrian community…a secular judge. Has a secular judge word used in the judgement?
Khambata: Yes, it has..
Khambata: Whether a practice of religion in a particular instance collides with a competing fundamental right under 14, 15, 21, 25, and if so, then how the doctrine of balancing or harmonious construction or double proportionality is to be applied to save the precise interests of the core of both competing fundamental rights? To that end, the precise interest of the core of the religion will necessarily have to be determined. I am coming straight to that.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Khambata put question before the bench
Khambata: Now, this is a judicial review only to ascertain factual genuineness. Is it genuinely a part of that religion? Once that takes place, then the courts, in my respectful submission, should step back and not get into a judgment on whether it's a valid practice or a rational practice or whatever.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Khambata reading his submission
Senior advocate Khambata is reading his submission and referring to previous landmark judgements to support his case.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Khambata on scope of judicial review
Khambata: Now comes to the question, my lords, proposing to me yesterday about the scope of judicial review, because I think I must clarify, very clearly, what my position is. It’s not exactly the same as the learned solicitor general, but it’s also not an extreme position. I am trying to read the middle path.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Khambata continues arguments
Senior advocate Khambata continues his submission.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Khambata continues his submission
Senior advocate Khambata continues his submission before the bench.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Hearing starts
The nine-judge bench has started the hearing of the day 12.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Hearing will start soon
A nine-judge bench will resume hearing soon.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Full court reference done
The Supreme Court will soon start the hearing at 11:45.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Hearing after full court reference
The Supreme Court will start hearing following the full court reference in the memory of four senior advocates.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Bench to resume hearing soon
Yesterday was day 11 of the hearing. The bench was hearing the submissions of counsels Gupta and Khambata.
Supreme Court Hearing on Sabarimala Women Entry Live Updates: Bench to resume hearing soon
A nine-judge bench will resume hearing the Sabarimala case soon.
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