Day 5 Sabarimala Reference Updates: ‘Denominational practices can be subject matter of judicial scrutiny’, says Supreme Court

Justice Amanullah: They don't say that I will enter but they do in their own way and i will do it in my own way. It is a common set principle everybody has to adhere

Giri: Yes

Giri: For every religion there is a manifestation. Manifestation in the Hindu religion is idol worship, considered as an integral and inalienable part. I don't go to the temple questioning whether the temple has the element of divinity.

Justice Amanullah: Building a temple is itself a manifestation.

Giri: But I don't go to the temple by questioning whether the temple has the right element of divinity. I don't go for that. I go for worship

Justice Nagarathna: In Sabarimala what happened the majority said that non permission between 10 to 50 that is not essential religious practice. Therefore, we are asking you what is your nuance on that. Court thinks that particular practice is not essential religious practice

Giri: They can't get into that question. It is not possible for the court to get into whether it is a essential religious practice...This is faith. There is no question of looking at the logic in faith and trying to import article 14 into it....When i exercise my right to worship I believe in that place, I believe in the temple.

Justice Nagaresh: We understand your argument. According to you its not the practice as such its more of a belief. Belief is attached to the deity, place. If you have a belief you do, if you don't have belief you can't go there to question.

Giri: I don't go the place as a museum, I go there as a place of worship and if i have to go there as a place of worship, it is my belief, i have to believe in that place, I have to believe in the deity. If i believe in that deity, deity has certain characteristics.

Justice Nagarathna: Those who are believers women who are between the age of 10 to 50 have to restrain themselves from going to the temple so that is questioned by the persons who are an associations.

Giri: They have no business. I am dealing with a very sacred right of mine under 25 1. I don't want somebody else to come and question, on my behalf? No....If i want to assert my fundamental right under 25 1, I do it.

Giri: All persons are entitled to visit temple and worship in the temple that is what is provided in 25 2 b but this is part of the right under 25

Giri: Each religion has its own sets of rules, beliefs and practices as well.

Giri: The right under 25 1 could be treated as an individual right, it is a fundamental right

V Giri is reading the submissions

Justice Nagarathna: this where you have said that a non-member of a faith in a form of individual or a group represent the cause of member

Dhavan: This is the derivative PIL. I have represented in so many cases. I am a Hindu and I represented Muslims in Babri Masjid. Of course, I started getting excreta parcels at home and I was attacked in court and your lordships asked if I need security and I said, i don't. Thank you. Now the question is I represent them that is derivative.

Justice Nagarathna: We are not on learned counsels representing but on parties coming to the court knocking the doors of the court.

Senior advocate Rajeev Dhavan concludes submissions

Dhavan: Is there a cause of action, constitutional or statutory duty?

Dhavan: I don't exclude the locus of women they are partly derivative and i don't exclude them they had locus

Dhavan: There is a need for a threshold test so that not everyone can approach the court with spurious or not an existent faith

Dhavan: The courts did not invent it (essential practices). They were made to respond to it. They responded with many examples, but effectively rejected essential practices because they said it is very difficult to define and must be determined according to the tenets of the faith. And the Court is not going into the tenets of the faith.

Bench: Are you a supportive of essential religious practice test.

Dhavan: No, I am dead against it.

Dhavan: Sabarimala judgment said there are so many ayyappa temples why are you distinct or why this place is distinct...added fifth test that you must show that you are exclusively distinctive..that was the mistake. Sabarimala must be overruled in this aspect.

Nine-judge bench assembles, hearing resumes

Dhavan: The mistake possibly in Sabarimala which will be decided by your lordships they gave no denominational status to the Ayyappa temple

Justice Nagarathna: We want to know is there any religion which can exist without having a denominational colour

Dhavan: If you take a wide view of denomination and all religious institution demands that then they will get the protection...if you take it away then they will get no 26 rights

Justice Nagarathna: That means, for example, let us take example of Hinduism like Shaivism, Vaishnavism whatever isms are there in Hinduism, everything is a denomination then they get protection. Are you trying to say that?

Dhavan: What I am trying to say is that denomination there is a misnomer that we have taken unfortunately. We have to protect the institution, the religious institution.

Dhavan: There is a huge confusion about applying the concept of denomination

Justice Nagarathna: Management of institution is different from managing its own affairs in matter of religion

Dhavan: I will now deal with the question of denomination. to some extent i have already dealt with. Denomination and sect has to be given Indian meaning

Dhavan: You go to temple not just enter the precincts. You go there to pray therefore the distinction is not ...one. Your right is there to pray and that has to be adjusted not just entry

Dhavan: There is no collision course between secular practices in the universal sense and religion

Dhavan: Morality means, it has two components, the first is normative it means something that can't be violated, the other meaning is pragmatically

Dhavan: Harmonisation is a technique that is used when there are two provisions of co-equal authority. You cant use the word Harmonisation as just an ...technique

Dhavan: The word 'subject to' is a very difficult phrase

Dhavan: Proselytising is there in a a large number of faith. I gave you example of Nazarene Jesus. you create muts they are part of the institution...Proselytising doesn't affect Christianity and Islam. That's all I say and move on

Justice Amanullah: There is a difference between Proselytising and propagating

Dhavan: The word practices has to be interpreted...The practices are not just practices in temples, mosques, churches but also social practices

Dhavan: The American constitution has anti-establishment clause. the state cannot enter into religious questions. The latest case suggest that if you are an employee in church, employment law will not apply to you

Dhavan: 25 2 is a very important social reform secular...it is important and virtually unlimited right in that sense

Dhavan: If you don't give autonomy to manage religious institutions all these institutions will fail

Dhavan: Would there have been a Christianity without the church. Wouldn't have happened. It is the church as institution is responsible for the continuance of Christianity..This is true for Hinduism

Dhavan: Institutional rights are the core of article 26. Without this right no religion will survive beyond 6 months

Dhavan: Social reform has a secular meaning, institutional meaning

Dhavan: 'Nothing in this article' means- Your individual rights cannot stand in the way of social reform. You cant come and say article 25 1 i have this right and this reform is not acceptable to me

Dhavan: Take the article of untouchability. This stands on a separate footing. In other words no court no religion can ever flout the diktat of article 17...Somebody who manages affairs of religion that diktat has to be observed. 23 and 24 are universal diktats they stand on a different footing

Dhavan: When we say freedom of conscience we are raising a very big issue. I have the freedom of conscience to challenge anything. I can challenge the state....Freedom of conscience is a very expansive right. It is a right given to all of us to question anything but respectfully

Dhavan: An example was given of a woman becoming the Archbishop of Canterbury. I debated against Archbishop... head of the church asked him why there are no woman priests. His reply was i have to carry my flock with me..That is an important aspect of leadership.

Dhavan now points to the extent of religious faiths in India

Dhavan: Let me start on this note. Your lordship is not just protecting Hindu practices. Your lordship concern is to lay down the law for everybody

Senior advocate Rajeev Dhavan to begin arguments now

Venkatesh: In south India women when they undergo biological process, voluntarily they don't enter temples. This is non-written rule that even in the house they don't enter puja room...When science ends, belief begins and belief ends when science begins

Venkatesh: On one hand we say 25 2 a contemplates a secular law where religious practices or issues are peripheral. I will give a simple example. The words are political, economical, financial and other such laws. Electoral law, which is primarily political but we have turned the whole argument upside down we have started reading religious laws in association with secular practices

Venkatesh: My Lords, the first thing I would like to say is that the word religion in Article 25, religious practice in Article 25(2)(a), Hindu religious institutions under Article 25(2)(b), religious denomination under Article 26, and matters of religion under Article 26(2)(b), are all indeterminate and probably incapable of being defined.

If there is a definition for denomination temples and a certain class of temples falls in to denomination temple what happens to non-denomination temples. Do they have no rights. Do they have no protection under the Constitution. And how do we deal with non denominational temples. The way it has been interpreted by law, and I will demonstrate very shortly, the problem is that all this becomes a sort of public place

Nine-judge bench assembles, hearing begins

In the four days of hearing so far, the arguments have been concluded on behalf of Centre, temple devotee organisations and Travancore Devaswom Board