Sabarimala Case Highlights: India always treated women equally, only country which worships them, Centre tells SC

Justice Nagarathna: In Devaruand, there can be a possibility of 26b prevailing over 25.

SG Mehta: Yes, your ladyship is right

Justice Nagarathna: You didn't say

SG Mehta reads judgment

Justice BV Nagarathna: Clause 2 of Article 25 is in two parts. The first part is to preserve what exists. The second part is enabling the state to make a law for social reform

SG Mehta: They (the bench) have rejected the argument of a private temple, it is a public religious institution

SG Mehta: I am not touching the Sabarimala part right now I will deal with it in a different manner though it is my case that it is wrongly decided

SG Mehta refers to another (third) judgment of a five judge bench (Venkataramana Devaruand case)

SG Mehta refers to another judgment of five judge bench

SG Mehta: There can be a law for social reforms even if it interfere with religious beliefs.

SG Mehta refers to attorney general's contention in Shirur Mutt

SG Mehta: Section 26 b is a standalone provision as per Shirur Mutt, cannot be interfered with by operation of law

SG Mehta is reading the judgment

SG Mehta: Please see the composition of the bench

Hearing resumes after break

Court assembles after break

Bench: Article 26 is not related to conscience. It is only a freedom to manage religious affairs

SG Mehta: There are 20-30 pages written on article 17. I will come to that

SG Mehta: No one should be arguing for succeeding or losing. We are assisting your lordships to answer questions and those answers which have large scale ramifications for decades to come

SG Mehta: 26 B is not a standalone island. It will have to be read with 25

Justice B V Nagarathna: In other words, if there is a social ill, which is being branded as a religious practice, the court can certainly distinguish between the two — a social ill or an evil, and an essential practice of religion.

SG Mehta: Essential practice is a separate issue but if it is a social evil, the answer can be yes.

Nagarathna: Because social evils are given a religious colour, but the court can always distinguish it.

SG Mehta: Certainly. But the real answer in law, the constitutional answer would be the remedy, even in case of an evil would be, (Article) 25(2)(b), which says social welfare and reform, the legislature can legislate and there are legislations which are passing such laws.

Nagarathna: Article 25 is a balance between what was existing and what has to be done in future. What has to be done in the future has been left with the legislature, but the Constitution also tries to preserve what is already existing in Article 25.

Bench: Whether such a faith existed amongst the members of a particular denomination or part of denomination can be a issue framed in a suit

Bench: There is a provision in laws which permit to use objective parameters to come at a correct subjective decisions in the facts of the case

SG Mehta: Superstition can never be a test for deciding whether its a religious practice

SG Mehta: Sabarimala reads equally entitled includes gender equality but my submission would be gender equality is taken care of in Articles 14 and 15

SG Mehta: India has always treated ladies equally, they have always been treated at higher pedestal. We are the only Indian society who worship ladies

SG Mehta: How do you decide (essential religious practices) It is a matter of belief whether this is essential or this is not essential

SG Mehta: Your lordships will have to decide several things and the question is would the court have necessary expertise to go into those questions

SG Mehta: Suppose Shirdi. Hindus go, Muslims go all denominations go it is not confined to one particular denomination

SG Mehta: I can be a non-believer non-idol worshiper and i believe in Charvaka theory but i can still be a Hindu

Bench inquires Jains and Buddhists believe in re-incarnation. There are Tirthankars.

SG Mehta: In Buddhism they believe in salvation they don't believe in idol worship

SG Mehta: As we call Sanatana we have four vedas. It prescribes several things we have four upvedas. Then we have six Vedangas

SG Mehta: Hinduism is divided into denominations and sub-denominations. Islam also has one holy book and the Prophet Mohammed. But there is internal plurality.

In Islam there are several denominations and your lordships will have to examine and answer what is denomination

SG Mehta: Centre is not taking extreme view. We are assisting what could be way of answering questions

SG Mehta: Let's see what's the scope

Sr Adv Abhishek Manu Singhvi: Your lordships on each of the 9 questions, hear them.. I had the privilege of opening before Justice Gogoi. But let the Centre open first.

Dhawan: Denomination is narrowly defined… lordships will have to take this intro consideration

SG Tushar Mehta: Your lordships have been very clear in the reference… will be examining the questions of law referred.

SG Tushar Mehta: What mylords are deciding will govern the functioning of nation for at least 30-40 years.

CJI: Para 2 we reproduced questions of law

Nine-judge bench assembles

The submissions by Solicitor General Tushar Mehta stated that “in the Sabarimala judgment” the majority “opinions not only wrongly declared Ayyapan devotees not to fall within the definition of ‘denomination’ but failed to even deal with the expression “or a section thereof”.

On September 28, 2018, a five-judge bench of the Supreme Court, by a 4:1 majority, lifted the age restriction on women visitors and struck down as unconstitutional Rule 3(b) of the Kerala Hindu Places of Public Worship Rules, 1965, which allowed the exclusion of women on the grounds of custom.