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

Deepak: I am conceding to two things- state intervention is possible, and I am also saying that the State intervention is amenable to judicial review.

J Nagarathna: there is no taking over under the state Act, it becomes a notified temple. Once its a notified temple, the act will apply

Deepak: in the tamil nadu legislation, specific provisions exists for the constitution of the trust for temples without ever giving effect to the process of election for trusts. The State directly applies and appoints executive officers, even when there are no instances of maladministration. This hon'ble SC has said that you can takeover provided there is something that smells fishy and that reason has to be recorded in writing before the state can enter into the picture.

CJI: if the State, in the name of social welfare, prohibits a religious practice, who will examine? The power of judicial review, there is no need to attack on that power so much. We understand that limitations are there but to say that there is no power at all, it may also be a very difficult proposition.

J Nagarathna:in other words, whether the rationality of the custom can be questioned in a court of law

Deepak: when can't be done directly can't be done indirectly-so if you can't get into the rationality of a religous practice...

J Sundresh:if its hit the basic structure

Deepak: in the process of entertaining those writ petitions, again the erp test can't be applied. whichever way that route is, which is the rewriting of the rules of religon, would be beyond the scope of judicial review under articles 32 and 226.

Deepak: the submission is, if judiciary can't or the court can't preside constitutional challenges to practice themselves per se merely because the state rolls the practice by way of a legislation doens't make it amenable to review is my huble submission. because at the core of it, my lady would still be getting into the questions of articles 25(1)&(2)

Deepak: subject to clause under article 25(1), enabling power under article 25(2) or subject to clause under article 26 are powers to be exercised only by the legislature-the restriction on those rights can be applied only by the state and the state doesn't include judiciary in its judicial capacity and therefore for the purpose of this chapter or this part, the reference to State is to the executive and the legislature.

In my humble submission, it does not include the judiciary. thereofe, the question of entertaining any writ petitions or challenging those practices on the ground of it violating any of those subject o the provisions doesn't arise simply because those powers are limited to the State.

J Nagarathna: it enables the state to make laws to bring social reforms, such as, for example entry. The controvery here is not that the State has banned entry, the state has made the law, rule under the Act for entry and because of the custom, there is a prohibition. In the Kerala Act and Rule. The State has not made a law banning entry, it has made a law promoting entry but there is a custom 3(b) where there is a prohibition

Deepak: codification of a preexisting religious practice by the state doesn't make the practice amenable to judicial review because it is not exercise of article under articles 25(1) or (2) where limitations are imposed.

Deepak: the rights under article 25(2)(b) or the enabling power in article 25(2)(b) has to be applied in a narrow sense, otherwise the purpose of carrying out article 26 wil be completely defeated.

Deepak: the only time that practise was violated or breached in the recent past was perhaps in 2018-2019 where, because of the rising sea levels, the shivalinga had to be lifted, and for that limited purpose, men were allowed.

Deepak: because there are temples on both sides, or even institutions on both sides across the board where prohibition applies to people across gender. for instance, the bhagwati temple in kerala where access to men is restricted for specific reasons. I gave an example of the Sathapadi temple in Odisha, where the priests are all Dalit. And there is a reason for it, apparently the original Brahim priest ended up seeking the deity in its unclothed form and therefore, to atone for it, he decided to handover the temple to four Dalit priests and till date, for the last 400 years, that practice continues.

Deepak: while I am not arguing on the merits of the sabarimala case, I am just giving this by way of an illustration-that if the temple because fo the deity's character naistik bramachari, there are certain prosciption or prohibition on restriction on certain class of people, which have nothing to do with jati(caste) in any manner whatsoever, because that class is across caste as far as restriction is concerned, then it doesn't run a foul of this prohibition. Therefore, I will build on this argument that section and class are not to be treated as two different classes altogether-class has been used consistently across the debates to refer to caste.

section has been used as a cross section within that particular class, or it can go beyond it but it was always meant to have a caste-based connotation, not gender-based connotation. because if that happens, religious diversity and rights under article 26 can be easily defeated.

Deepak: rules of personal purity and conduct prescribed for admission to and worship in these religious practice shall in no way discriminate against or impose any disability on grounds that he belongs to impure or inferior caste, or menail class, which if I elaborate, you can say that this acharam or the custom of the particular temple but if you used birth based restriction to prevent access or entry, then that will certainlty be in the teeth of the law, no matter what