Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench [Day 4]

Singhvi- it is assumed that fertile women of this age would be antithetical to very manifestation and existence of identity of deity. these women can certainly visit lord ayyappa in 999 other temple if they are so concerned in a PIL.

Singhvi: Lord Ayyappa I am told have about 1,000 temples in India. The only sole temple of lord ajjappa which has in one form as a naishtika brahmachari(eternal). the very foundation of the fame and powesss is in the form of naishtika brahmachari, the only reason why people revere him is because he eschewed all forms of grast ashram and has adopted penance of a very high order which include celebacy and self denial to an extreme form that is why when you go up, you have to do vratam (40 days). Now, if we relate it to 14, there is no exclusion. Females below 10 and above 50 are allowed. Its not gender per se. Within a band of 10 t0 50, this exclusion of supposely fertile female has a direct nexus with the object and identity and manifestation of the deity, it is a valid classification.

Singhvi: PIL should not become a vehicle for interpreting religious practice or its violation.

CJI: for maintainability of PIL, broadly principles have been laid down.

Singhvi: articles 25 and 26 has a much more higher threshold.

religion is a faith of millions, a third party is unable to find direct access to article 32 to change it

J Sundresh: can the court deciding without hearing millions of them

J Nagarathna: it should not be allowed because such a person who filed the PIL is not a believer

CJI: most difficult task is how to give a declaration that the belief of million people is wrong or erroneous

Singhvi-that is what happens in a PIL

arguments to continue.

Singhvi: on last issue- Whether a person not belonging to a religious denomination or religious group can question a practice of that denomination or group by filing PIL?

I have put 23 judgments in a chart all of them on articles 25 and 26 have come up through a ladder and initiated by an adherent of the religion who has challenges inroad through articles 25 and 26.

I am an individual and she is a religious denomination and and you have intruded by a religion or some form and I am the challenger. This must be clarified in this judgment, entire frame of the proceedings has been inverted and put upside down.

J Sundresh- this is what my sister has said

Singhvi: I am an individual who has articles 25 and 26 rights and she is a denomination who has article 26 right. either of our two rights respectively is intruded upon my learned friend's clients by legislation or delegated legislation, which I think is diluting my right, I go in a writ or suit. I am the challenger asserting my right and he is the defender showing I have rightly violated mr singhvi's right because I come under public order, health , morality, and mylords decide it. 23 cases in my chart and none like this. You don't have a challenger whose articles 25 and 26 right is affected, you don't have a legislation. you have a supposed PIL petitioner coming and saying that look I believe this religious practice is not good practice.

chap who has a right under articles 25 and 26 is not the challenger, the government is not the respondent. both of us, we and the government, are the respondents to the PIL's claim that accordingly to PIL collective conscience standard the religious practice is bad- this completely destroys the very concept

J Nagarathna- see, a believer will never question it. who is the petitioner

J Amanullah- why can't constitution morality be interpreted to mean differently in differently scenaria- we could definite parameters but why straightway that it doesn't apply

Singhvi: in the absence of legislation, your lordships can apply convention or spirit

J Amanullah- its a fluid concept

Singhvi- in four cases where it has been used as a major ground to dilute legislations then I would say its wrong. this use is misuse because it has no connection with dr ambedkar. if your lordship is not dealing with legislation and dilution and find that silence can be filled up, it depends on case to case basis

Singhvi: arguments on public order: It has been held by this Hon’ble Court in a number of cases that “public order” is different from “law and order” and every act that constitutes a threat to law and order would not be subject to regulation on grounds to “public order”

CJI- the danger of constitutional morality in this context will be unmanagable standards...complete subjective

Singhvi: its a horse, you can't ride

J Bagchi: the idea of applying constitutional morality to articles 25 and 26 is actually regulating non state actors. whether do we apply when we examine religious affairs and management of religious affairs

Singhvi- if we apply the subjective objective test which i said in the morning, any doctrine such as constitutional morality brings external standard whether by private or non private actors and becomes very dangerous

Singhvi- 3. constitutional morality was never dreamt of by anyone as additional ground of derogation.

J Nagarathna: legislature can't be struck down on grounds of constitutional morality, part III, legislative competence

Singhvi- 4. framers consciously used morality

Even at the time of drafting of Part III by the ‘Sub-Committee on Fundamental Rights,’ the apprehension was expressed by members of the Sub-Committee that the term morality was vague, incapable of precise definition and susceptible to misuse.

Mr. K.T. Shah, in his comments on Article 9 of the Draft Report on Fundamental Rights (equivalent to Article 19 of our Constitution), stated thus:- “Article 9, dealing with several of the primary freedoms or civil liberties, makes them subject to “public order and morality”. The last named is a very vague term. Its connotation changes substantially form time to time.

… In a land of many religions, with different conceptions of morality, different customs, usages, and ideals, it would be extremely difficult to get unanimity on what constitutes morality. …

If this is not to degenerate into a tyranny of the majority, it is necessary to define more clearly what is meant by the term “morality,” or to drop this exception altogether."

refers to KA Abbas and S. Rangarajan case

Indian Hotel & Restaurant v State of Maharashtra- on morality-“It needs to be borne in mind that there may be certain activities which the society perceives as immoral per se. It may include gambling (though that is also becoming a debatable issue now), prostitution, etc.) …

However, a practice which may not be immoral by societal standards cannot be thrusted (sic) upon the society as immoral by the State with its own notion of morality and thereby exercise “social control.” Furthermore, and in any case, any legislation of this nature has to pass the muster of constitutional provisions as well. We have examined the issues raised in the aforesaid context.”

Also reads Kesavananda Bharti and SP Gupta as well

J Nagarathna: SP Gupta, it was rightly applied to test the duties of constitutional authorities, we can't wholesale throw it away. It may be a very fluid test to strike down a legislation-it should not be applied

Singhvi- on issue 4-constitutional morality-1. constitutional morality is not used in the constitution anywhere

2. Dr Ambedkar used it to justify one allegation against him-it was asked why are you providing such a broad constitution-he said in a nascent republic like india where constitutional morality may be in a superfical topsoil but not embedded in the sub soil, it is necessary to provide details of administration which overtime will inculcate and create that morality