Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench [Day 6]

Deepak-[reads the draft article 25] article 25(2) was inserted an explanation to article 25(1). I am reiterating the point over and over that it never servers the umbical cord that connects article 25(1) and (2) through his entire history. it becomes an explanation, then it comes a proviso and then it comes article 25(2)-that is the only difference.

Deepak: denomination was preceded by a religious association, which is why, in the debates, mylords would not find a specific discussion on what amounts to a denomination because the denomination is always meant to be understood as a collective expression on individual rights. therefore, every body of people, which comes together under common belief to establish an institution will be entitled to rights under article 26.

if article 26 would not have been there, what would have happened? it would have still been part of article 25(1), except that they decided to pull it out of article 25(1) and give it a separate chracter for one good reason but Part III can apply to article 25 but it can't apply to article 26. it is conspicuous in the absence of the language itself

therefore to ensure that collective rights or denominational rights are unfettered by the limitation of article 25(1), the bundle of rights under article 25(1) was plugged out and carved out as article 26.

Deepak: what I am trying to show is that we need not go into the path of interpretation and get caught in the question of what is a denomination when those questions have already been answered by the history of the provision. I have gone through all the written submissions, in my humble view, this portion in history was not there.

Deepak: therefore, denomination was never used in the context of giving it a separate character altogether and this will emanate from the clauses proposed by Dr Ambedkar on March 24, 1947

Deepak: [refers to written submissions]-courts have been grapping since 1954 on the question of how do we interpret denomination and shirur mutt has given the impression that denomination is something exalted, which is distinct and unique- Dr Ambedkar and Munshi was not of this view because article 26 was meant to be a specific application of article 19(1)(c) in a religious context-which is freedom of association is provided in article 19(1)(c) and the limitations on freedom of association are provided in article 19(4). Article 26 was meant to be freedom to religiously associate and in that sense, article 26 is a specific manifestation of 19(1)(c) in a religious context.

Deepak: the better part of these provisions and their amendment came from Munshi who can rightly take credit for crafting the language the way it is. see the proviso, in the second line of the proviso, it says religious worship, it subsequently becomes religious practice because they decided that worship is too narrow and they should cover practices as well.

Deepak: after the adoption of the objective resolution, five sub-committees are appointed, which deals with fundamental rights. I would request mylords to kindly read para 5 [of submissions] which will show that article 25(2), as it exists, was always meant to be a proviso to article 25(1). That is, it was never intended to affect article 26 whatsoever is an argument that has been made through interpretational grounds, but I am showing historically this was a case. I am only saying history of these provisions show article 25(2) was meant as a limitation only on article 25(1) it speaks of "nothing in this article" and there is reason for it.

Deepak: question 1, what is the meaning of a denominational institution? and is the religious denomination different from a religious institution, what is the distinction? prior to the adoption of the objective resolution on 22nd January 1947, there were two preliminary notes on fundamental rights which shed light on the predecessors to articles 25 and 26- one is BN Rao's note, who was the constitutional advisor, who broadly enumerated the kind of fundamental rights.

Kindly see the first prototype of article 25 under Mr KD Shah's note. SO the draft clause presented by KD Shah in his prelimiary note 23rd december, 1946:"every person living in the Union of India and is hereby guaranteed the right to freedom of conscience, which includes freedom of belief, worship or profession of any religion, faith or doctrine as well as the negation of such belief, subject to public morality and order and subject to such laws to ensure the maintenance of public peace, transquility and good relations amongst the various sects and communities in the country'

Deepak: mylady had asked if article 26 is about denomination, under which provision the non-denominational institution trace their rights? all this turn on to the history of articles 25 and 26. What I have done for mylordships consumption is there is a spiral folder which contains the history of articles 25 and 26 in its entirety.

Sr Advocate Jai Sai Deepak(representing All India Organisation of Ajjappa temples, Shirur Mutt, Thanthri of Padmanabhaswamy Temple, Chilkur Balaji temple: I will focus on the relationship between articles 25 and 26. It is humbly submitted that in order to address the above questions, which is questions framed for reference and additional questions, a holistic understanding of Part III is called for of which articles 25 and 26 form part.

Since part III of the Constitution deals with fundamental rights, the following foundamental rights must be asked.

-who do these rights inherent?

-who are they available against or in relation to

-what is the nature of the rights

-what ate their limits and who enforces these rights