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

J Nagarathna: are you propounding this essential religious practice? Either it is a secular activity associated with practice or it is a religious practice. Once its a religious practice, there is no question of essential or non-essential.

Giri: that is correct

Giri: In Dargah Committee, this hon'ble Court proceeded to strine a note of caution and observed that even practice of non-religious may have sprung from merely superstitious beliefs and in this sense maybe extraenous and unessential accretion to the religion itself.

the court therefore held that the protection must be confined to such religious practice that are integral part of it and no other and was pleased to further find that the protection under article 26 may have to be carefully scrutinised.

Giri: In Dargah Committee, this hon'ble Court proceeded to strine a note of caution and observed that even practice of non-religious may have sprung from merely superstitious beliefs and in this sense maybe extraenous and unessential accretion to the religion itself.

the court therefore held that the protection must be confined to such religious practice that are integral part of it and no other and was pleased to further find that the protection under article 26 may have to be carefully scrutinised.

Giri: It is submitted in the present scenario that the community, particularly in Kerala, has accepted the custom as an integral part of the religion and practice. It is further submitted that women folk in Kerala realise the significance and have been cooperating with the system wholeheartedly. The women in their homes utilise the spirit for spirtual discipline. The occasion becomes a period of harmonious cooperation between men and women.

Giri: what constitutes a religious practice has to be determined with reference to the doctrine, practices, tenets, historical background. This court in shirur mutt-"If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or ablations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious. practices and should be regarded as matters of religion within the meaning of article 26(b). What article 25(2)(a)."

Giri: there is a total lack of material on the part of the writ petitioners to show that the concept of naistik bramacharya pleaded by the petitioner are either ill founded, misconceived, or doesn't form the essential form of the religion.

Giri: It has been held in Shrir Mutt and other judgments of the supreme court iself that what constitutes an essential part of the religion is primarily to be ascertained with reference to the doctrine of that religion itself. therefore, the content of the right claim would have to be ascertained with reference to the tenets of the religion itself. This would include the concept claiming to the consecration of the iold,, and the individual characterstics of the deity.

Giri: the characteristic of the deity in sofar as Sabarimala is concerned contemplates that the deity is a permanent celibate.

J Sundresh summarises Giri's arguments

J Nagarathna: in other words,a believer will not question the rationality and its no business for a non-believer to question it because he is a non-believer anyway

Giri: why should your lordship protect my right under Article 25(1) to go and question the belief which is inherent in another place of worship. It is not captured by article 25(1)

Giri: my right under article 25(1) in so far it encapsulates the right to enter the place of worship will have to be sync with the practices that are carried out by the temples as such and the characteristic of the deity is considered as one of the integral parts because of idol worship.

Giri: my right under article 25(1) in so far it encapsulates the right to enter the place of worship will have to be sync with the practices that are carried out by the temples as such and the characteristic of the deity is considered as one of the integral parts because of idol worship.