Sabarimala reference: Live updates from Supreme Court

SG: But here, in the Sardar Syedna Taher Saifuddin Saheb v. State of Bombay case, the Court struck down the law, holding that Article 26(b) gives exclusive rights to the denomination, including the power to excommunicate.

Justice B.V. Nagarathna: But here, in the Sayedna case, they struck down the law, saying that Article 26(b) gives exclusive jurisdiction to a denomination to excommunicate anyone.

SG Tushar Mehta: My Lords, that was also rejected… but kindly see now… excommunication…

Justice Nagarathna ' Article 25(2)(b) and Article 26(b)… ultimately, the Court said that Article 26(b) will prevail…

SG: it will not…

Justice Nagarathna: They struck down that…

SG: yes but they upheld the practice…

Justice Nagarathna: Under Article 25(2)(b)… with the result… it was struck down… excommunication… it was struck down.

Justice Nagarathna: The approach of the court in such a matter must also be to determine essential religious practice through the lens of the philosophy of that religion. You cannot apply some other religion and say it is not an ERP. Ofcourse subject to public order, morality. This is about how the court examines this, not whether it has jurisdiction.

CJI: First, if something is there like witchcraft, cannibalism or human sacrifice, which shocks the conscience of the Court, then on the face of it, no further adjudicatory exercise may be required. We cannot replace ourselves with the expertise of subject experts. We are only examining how far such a matter can fall within judicial review. The moment there is such a kind of practice, the Court will simply say that it is contrary to public order, morality or health.

Justice Sundresh: If we try to find the case of this, you can adopt a hands-off approach. But to say that it is to completely denude the Court of jurisdiction… the issue is of void and voidable action. If its so violative like Sati etc..court can intervene..

Justice Sundresh : That is why the purpose of the legislature is there in Article 25. But that does not take away the Court's jurisdiction in an appropriate case.

SG Tushar Mehta: I never argue that, because that argument always fails against the jurisdiction of the Court. The Court is always zealous to protect its jurisdiction, and rightly so.

Justice Joymalya Bagchi: Witchcraft is considered to be part of religious practice. Would you or would you not have it as superstition? Your argument from there is that it is the legislature to take it up and prohibit any practice which promotes it. Let us say the court is approached under Article 32 saying that there is a religious practice of witchcraft and the legislature is silent. Cannot the court use the principle of unoccupied field to give directions for prohibiting such a practice, keeping in mind not going into essential religious practice, but on the beacons of prohibition like health , morality , and public order.

SG: it will fall under public order, morality, not because it is superstition. When Your Lordships are examining a jurisprudential doctrine, Your Lordships would normally not take extreme examples and test it. That is part of jurisprudential theory.

Justice Bagchi: But that is what we do ..we stretch it to absurdium and test it.

Justice Ahsanuddin Amanullah: Mr Mehta, you made it too simplistic. The Court has the right and the jurisdiction to hold whether it is superstitious. What will follow is for the legislature to decide how to deal with it. But then, in Court, you cannot say that whatever the last word is what the legislature decides. That cannot be…

SG Tushar Mehta: I have a slightly separate view. A secular court cannot decide a religious practice as mere superstition, because Your Lordships do not possess that kind of scholarly competence. Your Lordships are experts in the field of law, not in the field of religion.

Justice Amanullah: Then we have to classify those things which have that colour. When you come to court..we have to..

SG: Something religious for Nagaland may be a superstition for me. We are in a greatly diverse society. Maharashtra has black magic act..they may say that this is the practice prevalent in our area and that's why protect it under Article 25(2)(b).

SG Tushar Mehta: The question I pose to myself is this: how would the Court decide what is a superstitious practice? That is one aspect, within judicial review. But there is a more fundamental issue. Even assuming there is a superstitious practice, the answer is not for the Court to determine that this is superstition. Under Article 25(2)(b), it is for the legislature to step in and enact a reform law. The legislature can say that a particular practice is superstition and requires reform. There are several such statutes, laws dealing with black magic, prevention of such practices, and others. So, it would not fall within judicial review for the Court to classify something as superstition or religion, and then go further to examine whether it is an essential part of religion. That, in my respectful submission, is the position.

Justice MM Sundresh: The tendency, with respect, is to secularise in two different ways. One cannot say that religious practice is different from religious belief and then treat them as entirely disconnected. There has to be some connection. It cannot be a loose or remote connection. What is happening is that belief is being replaced, and only the practice is being tested, without reference to the underlying belief.

Senior Advocate Indira Jaising: I am in complete disagreement with the SG. I am the senior-most on my side. I will argue an hour.

CJI: There are a lot of lawyers who just want to replicate stuff just because live streaming is there and want to be on camera.

SG: Mr Dhavan's submissions contradict our submissions the most. I perhaps will have to give a rejoinder to Mr Dhavan. Others are arguing other nuances on the same line.

CJI: That will create complications for us also. Let Mr Dhavan wrap up what he has to say. We understand because of overburdening of this court we will not read written submissions.. but we wanted to utilise the summer vacations for it.

Senior Advocate Rajeev Dhavan: It is singularly impossible for us to be accommodated till tomorrow. You say you will read our written submissions. You won't. You are the most overworked judges in the world. We write written submissions to support our oral arguments, not the other way around. I have a great reservation about what SG argued.

CJI: Let SG complete and thereafter we will follow the order of seniority and hear you all.

Dhavan: Review petition is not being decided here. Then who is here for review petitions is irrelevant.