Day 6 Sabarimala Reference Updates: Limitations exist, but no need to attack powers of judicial review, says Supreme Court

The Supreme Court will take up the matter tomorrow, where senior advocate Sankaranarayanan will continue his submission.

Sankaranarayanan: My lord, I take the position that Article 26 is necessarily subject to Article 25 (2) (a) and (b). My lord, that is the only way to read Articles 25 and 26. My lord, let us look at the very foundation.

CJI: Can you repeat your stand on Articles 26 and 25?

Sankaranarayanan: I am saying, my lord, Article 26 is not a standalone article, which can survive reference to Article 25 (2) (a) and (b).

Justice Nagarathna: There was one practising advocate. He wanted to take control of the Matha because the Matha Patti was a minor, and he was very young. The practising advocate, through his friend, got the power of attorney and all that and started misusing that power of attorney. There was a suit, and the power of attorney was terminated by the mattpati. And when the suit was there, all this happened and because the advocate there managed all that.

Sorry to say that...

And matter landed up here and now we are in seven judge..nine judge that is the genesis of the dispute there..

Deepak: Codification of a pre-existing religious practice by the state does not make the practice amenable to judicial review because it is not the exercise of the right under Article 25 (1) and (2), but limitations are imposed.

If the judiciary cannot or the courts cannot preside over constitutional challenges to practice themselves per se, merely because the state rolls that practice by way of legislation that does not make it amenable to review, is my humble submission.

Deepak: Public order, morality, and health, literally, are, in my humble submission, like akshayapatra. They are so broad, huge, and wide enough that any concern state may have with respect to social justice reform is capable of being accommodated within Article 26, without having to come through Article 25(2). And this is retaining the consistency of the argument, which is that 26 need not be affected by the 25 2…

Bench: Constitutional limitation under Article 25 (1), it limits your right to profess…subject to public order.

Deepak: I will come to this.

Bench: With an extent, you can say public order, morality, and health insofar as administer and manage the property…that actually will come.

Justice Nagarathna: The power of the state does not extend to worship. It extends to practise.

CJI: The state, in the name of social welfare, prohibits the religious practice, who will examine?

Senior advocate J Sai Deepak: I walk my lords to this history because this should answer more or less most of the questions that are put in relation to the following questions:

1. What is the relationship between Article 25 (2) and 26?

2. What is the meaning of a denominational institution?

3. Is the religious denomination different from a religious institution? What is this distinction?

Senior advocate Deepak: I represent the Pandam family, which is the foster family of the deity itself, which is why I have something to say on the issue. I am also representing the Chetana, which is a women’s organisation that stands in support of the temple tradition. I also represent the All-India organisation of Ayappa Temple. I am also representing the Shirurmath in this matter. I also represent the Tantri of the Padmanabh Swami temple, who has a direct say with respect to the practice of the Sabarimala temple.

Nine-judge bench assembles, hearing resumes

Senior adv Sankaranarayanan: If denomination a has a name or a particular type of faith or tradition, and it has an organisation, these are the three parameters of the test that it is a religious denomination. I would add the fourth. The fourth is that it can include syncritic or multi-belief systems. I Hindu, and my friends are a Muslim and a Christian, and we are going to form a new form of religion.

Senior advocate Sankaranarayanan: For the spiritual aspect of a believer, I would say that right would come from Article 25 (1), but that is the spiritual side of me. But if I want to express myself in different fashions, whether I want to express myself in public, or I want to be in debate, or I want to write in a newspaper, all of them will come from Article 19 (1) (a).

Senior advocate Sankaranarayanan: Actually, the atheist would be the strong opposer of it, but the agnost would say, look, it does not bother me in the least, but I am not singing on for it.

Justice Bagchi: The arguments advanced till now are that I can't because I am a believer. That may be good for a generic, moral, or emotional playing. But when you come to an assertion on a legal and constitutional right, will Article 25 get colour from Article 19 (1) a and thereby must be read harmoniously with Article 26 (b) and not subordinated.

Justice Nagarathna: Also, keep in mind that the expression “untouchability” is within inverted commas. The Constitution framers have remind in it of “untouchability” bearing in mind that the historical..social practice that is what they had in mind they made it. Therefore, there is not any kind of prevention of nay kind..you see..

Senior advocate Sankaranarayanan: The second is bearing in mind what the specifically religious practices and issues are that we constantly see.

Senior advocate Sankaranarayanan: I think when the lordships are looking into the perspective of the nine judges, we are transporting ourselves back to 1950 effectively. And all the judgments that come before would possibly give the guidance, would give some template of what we are actually grappling with

Senior advocate Gopal Sankarnaryanan starts the argument on behalf of one of the review petitioners.

Justice Amanullah:  Putting an extreme example. When we go so far down the road of faith and belief, (suppose) I go to a temple. My fundamental belief is that he's the Lord. He is my creator. He has created me, right? I go a hundred percent. I'm totally devoted, absolutely nothing, but pure in my heart. I go there. But there I'm told that because of your birth, of your lineage, a certain restriction, permanently you are not allowed to touch the deity. Now will the Constitution not come in the rescue?

Justice Nagarathna: In other words, a believer will not question the rationality of that practice. And it is no business for a non-believer to question it because he is a non-believer in any way.

Justice M M Sundresh: As you rightly said, these are linked with practice. Article 25 (2) (b), they have the right to take action. For a moment, we are not talking about the court’s role. We are talking about the enabling power being exercised

Senior advocate V Giri: Citation of Seshmaal is also given separately. I beg to read it, my lord, so that it puts my submission in perspective.

The temples with which we are concerned are public religious institutions established in olden times. Some of them are Shaivism temples, and some are Vaishnavic temples, which means these temples have Shiva and Vishnu in their several manifestations.

Senior advocate V Giri: The devotees surrender themselves to the deity and its divine concept in the temple.

Senior advocate V Giri: There should be no pollution or defilment of the image under any circumstances.

Senior advocate V Giri: Every Hindu deity has a characteristic of its own. The rituals and ceremonies followed in a temple would be either unique or at least peculiar to the temples, which come under the same category. The rituals are all said to be associated with the concept of the deity.

Senior advocate V Giri is referring to the practise of Hindu customs, the temple practises and the institution of the temple practises in ancient times.

Senior advocate V Giri, representing the Sabarimala Achara Samrakshna Samiti, continues the submission.

In the last hearing, Justice Nagarathna said that the management of an institution is different from managing its own affairs in matters of religion.

A nine-judge bench will shortly resume the Day 6 hearing of the Sabarimala reference