Can Courts Decide What’s Essential in Religion? Rajeev Dhavan’s Big Argument| Sabrimala Temple Case

Added: 2026-05-23

[00:00:00]There had been a lot of litigation in regard to this mutt in the district court and in the high court. Most of the properties of the mutt have vanished because of either mortgages or sales or long leases and the like.

[00:00:17]Another instance of this kind is the Tarkeshwar mutt.

[00:00:21]Court schemes were prepared and as a result of certain complaints regarding the working of these institutions within a few months thereafter litigation con- commenced.

[00:00:34]Third line from the bottom. Most of the mutts in the north as well as the south were maintaining pathshalas, tools attached to them for the propagation of Sanskrit studies. They were running religious charities like goshalas, dispensaries. Most of the path- pathshalas are now closed down for want of students and are not maintained properly.

[00:00:59]To some extent this reality may be due to the change of ideas from generation to generation, but it is also due to the fact that there is a tendency amongst many mutt authorities to Sorry.

[00:01:14]Great. Mutt authority. Anyway, to treat the institutions as their private property and utilize most of the resources for themselves.

[00:01:23]Then comes three lines later. Many are not even versed in the first principles of the Hindu religion.

[00:01:33]Not to speak of the fact that they really make little attempt to propagate or promote the religious religion knowledge. The need for remedying this state of affairs is a matter of urgency and the steps that we considered read that.

[00:01:50]Next paragraph. All mutts serve the purpose according to Hinduism. And then the third line.

[00:01:57]but much managed to secure large powers of property at their disposal in the British system.

[00:02:05]Then my lord, about eight lines from the bottom, one view is that custom had been given powerful religious functionaries vast wealth, properties, powers, status, and they should that they should retain their customary powers and privileges.

[00:02:21]The other was that they should be denuded of all the appropriate shares consistent in the limited needs.

[00:02:28]The report noted the extravagant claims by the functionaries of the Dakshina Temple near Calcutta, the Nathdwara Temple in Rajasthan.

[00:02:38]Put on a comparative scale, they were not the worst of them.

[00:02:42]And then my lord, they gave further examples.

[00:02:45]Then my lord, kindly come to the page 35, second para. Many big temples and mutts were richness personified. For example, the Badrinath Temple had ownership in palatial buildings in Dehradun, Lucknow, Calcutta, Bombay, and perhaps other places. Kedarnath in the previous year had income of so-and-so with surpluses. Nathdwara had jewelry and surpluses.

[00:03:14]Jain trusts also then I think ultimate conclusion is at page 40, Mr. Dhawan.

[00:03:20]Yes, my lord. I'm just saying in page 36, you'll find the surpluses. That's correct. That's my >> No, that is my conclusion, and I don't want to read it in my notes.

[00:03:29]Because I have actually summed up this in my own words.

[00:03:32]>> That's it.

[00:03:33]I may have got things wrong, my lord. I write my own submissions and first by hand, so there may be a little few problems here and there, my lord.

[00:03:43]Then my lord, when we go and uh I just want to read one more, page 37 and your lordship have got the picture.

[00:03:55]That is on page 37 second para. Chief Minister B.C. Roy complained to the commission that private temples were collecting huge public donations. The Kalighat Temple had huge areas by the Nawabs of Bengal which the Shebaits sold and the Shri Krishna Mahaprabhu Temple at Nabadwip was grossly mismanaged and the 100 Shebaits attached to it. The old Calcutta Kali Temple belonged to the Tagore family and the descendants not only claimed it to be private but took advantage of the concessions from taxes as a as a private temple in Assam.

[00:04:33]Baduri temples and elected Delois made most of the money.

[00:04:39]So my lord, it's not as if they didn't know because of one campaign.

[00:04:44]It is a major part of the reform. Sometimes my lord, we think of reform, let's have a uniform code because we can get Muslims into it.

[00:04:56]We overlook the fact that the origins of articles 20 25 two social reform has a very wide implication and anybody who has been anywhere in India will recognize the importance and probably the autonomy of 25 two and B.

[00:05:21]So I stop on this as my lord the Chief Justice puts it, there is more to read.

[00:05:26]But let me come back my lord to my main argument.

[00:05:31]My main argument is my summary of the argument on the other side.

[00:05:36]Surely this was important my lord for us to remember that this is one of the unsolved areas in the fundamental rights chapter.

[00:05:46]>> [clears throat] >> Constitution benches have taken care of other parts, but this is the unsolved area.

[00:05:53]Now, my lord, kindly come to page two.

[00:05:57]I'll need it because it's easier to explain my view of why their basic argument is wrong.

[00:06:05]1.1 The basic right to freedom of religion, 25 to 28, rests in the individual freedom of conscience and the right to freely profess, practice, and propagate religion in 225.1. This is not my argument. This is my paraphrase of their argument that [clears throat] the nodal right is in fact 25.1.

[00:06:32]That's where your heading should be because of the respondents appear to That's right. That's what they've argued, my lord, and I believe that this is the basis of the argument that they have raised.

[00:06:42]And it attends everything else that has been argued.

[00:06:46]Argue and though it is these individuals who form a community as a denomination or section.

[00:06:53]We have to make a difference between a collectivity of persons and a community.

[00:07:00]25 is about a community. It is not about a collectivity of people who are simply gathered there and suddenly elected a leader.

[00:07:10]It has some purpose to it and has to be, as my learned friend Mr. Subramanian said, defined widely.

[00:07:18]The next.

[00:07:19]Therefore, the restrictions on 25, according to their argument, especially the restriction in other provisions of this part, also governs 26, which is argued cannot exist on its own and depends on its existence to article 25.

[00:07:37]Therefore, their argument is 26 cannot exist on in own.

[00:07:41]In fact, Mr. Shrivastava took it even further and took it all the way to 28 as well.

[00:07:48]Now, my Lord, it is argued, and this is where the origins come.

[00:07:52]That the bank nationalization case, Maneka Gandhi, took an assimilative view of constitutional interpretation, supports the view that each right is not a silo.

[00:08:04]Now, my Lord, sometimes we use very emotive words.

[00:08:08]Silo is a very emotive word. As if you were to say to me, "Rajiv, you are a silo." I would actually be very offended. C. L. Stevenson in a famous article in 1939 said, "This is called persuasive definition."

[00:08:24]So, as soon as you utter the silo, suddenly you say, "What's happened? Can articles be silo?" No, they're not.

[00:08:30]They're independent and autonomous.

[00:08:33]Therefore, it is argued, constitutional morality has to be read into 26, not just as interpretive values to be considered, but as a limitation on the institutional rights bestowed in 26.

[00:08:47]This is a further consequence of this assimilative approach.

[00:08:52]The doctrine of essential practices is useful so that the on- only the core of religious rituals and practices are protected, and specially useful to decide interfaith and intersect disputes among believers.

[00:09:08]That was Mr. Jayant to pass argument. I will show to your Lordships that all the cases that he cited do not support us.

[00:09:16]Why would you separate that only separately that we use essential practices only for private disputes?

[00:09:25]Balancing is an intricate judicial task to weigh It's a w a y, it should be weigh. Various factors and values to come to a decision on law and determine outcomes. I think this is what uh Justice Bakshi had in mind.

[00:09:44]That this process is to determine outcomes. It is not the methodology through which we reach the decision.

[00:09:52]It entails considering the rights against the restrictions, using various juristic techniques such as reasonableness, proportionality, double proportionality, due process, and the concept of a just law.

[00:10:06]I'm Although uh Indira Jaising didn't specifically advance this, I accept what was implied in what she said, that when we talk of law now, we talk of a just law.

[00:10:21]And this should be, other things remaining the same, using a ceteris paribus clause, this is how we perceive law after Maneka Gandhi, Cooper, and others.

[00:10:35]So, my lord, this is the argument, and these are the implications, and like an octopus, it spreads everywhere, every part of the of the interpretation.

[00:10:49]The basic argument is privacy, individual conscience, individual freedom to pursue the faith, and it is individuals who make communities, create rights, even though religious groups and institutions predate individual existence, and most are born into the faith with the right to differ, reform, or renounce it as they please.

[00:11:11]I'm a pre-independence child, my lord.

[00:11:14]I didn't choose my faith, my lord. I was born into it. So, this idea that suddenly you come to a community, and all of a sudden [clears throat] you choose it, and you choose dissent in it.

[00:11:25]My lord, this is a falsification.

[00:11:27]Dissent does exist. You have to protect conscience. As Mr. Subramaniam put it that conscience is something that you cannot go into.

[00:11:38]As soon as you go into the area of professing, practicing, and propagating, that is an area of judicial examination.

[00:11:51]Now, my lord, having said this to be the basic argument, if your lordship accepts that there is a centrality to it, then, my lord, there is something in what I say. If not, my lord, I give a walkover to them and [clears throat] take uh their position as Now, what did the Constitution make of My lord, you're you're giving the on the theory of constitutional interpretation. That's right. When it comes to these articles, because they were really not considered as such by a nine-judge bench. It was individual cases. That's right.

[00:12:26]>> There was no collective consideration earlier by this court. That's right. My lord, I I I have really no >> Therefore, the 14, 19, 21 triangle cannot be straight away applied is your argument.

[00:12:38]>> I I want to add to that because it's a point I'm going to make, but your lordship's question is a fundamentally important question.

[00:12:48]In all this assimilation, none of the rights assimilated lost their individual identity.

[00:12:57]If a article 14 question comes to you, you will still look at classification and arbitrariness.

[00:13:04]If a 19(1)(a) question comes, you will still look at 19(1)(a) and 19(2). Yes.

[00:13:11]Only thing that you will see is that the concept of reasonableness has been extracted by this assimilated process.

[00:13:20]So, when you look at 21 and the history of this court is interlinked with 21, you will look at 21, you will look at life, liberty, and law, and interpret them in the context of 21.

[00:13:33]So, the identity in this assimilated process is never lost.

[00:13:39]That's what I want to argue, my lord.

[00:13:41]And then, my lord, I ask myself, what did they have in mind?

[00:13:47]The first thing they had in mind, of course, was individual conscience.

[00:13:51]And religion.

[00:13:52]But, they were a little fearful of what the manifestation of religion can do. Not the conscience part, my lord. The manifestation.

[00:14:03]As Justice Owaisullah put it when superstitions beliefs were being discussed, it's not the beliefs, but how they are the off professing, practicing, regulating, you enter into a social area.

[00:14:27]Now, what did the constitution makers want there?

[00:14:30]The constitution makers said, we can't leave this as a right which does not have restrictions.

[00:14:40]We just can't.

[00:14:42]Because in its manifestations, it could give rise to the worst communalism in the world.

[00:14:51]But, they added one more.

[00:14:53]Other provisions of the constitution.

[00:14:56]Can you give me constitution?

[00:15:03]Other provision, just have a look at it.

[00:15:05]We just say it's it's a play on words.

[00:15:09]Like um Guru Swamy's play on words on uh >> [clears throat] >> what is manage, etc. It may be just a play on words, but I'm bringing it to your attention.

[00:15:21]It says and to the other provisions of this part. Yes.

[00:15:29]It doesn't apply to itself.

[00:15:31]If it doesn't apply to itself, how can it be transferred to 26?

[00:15:37]It says the other provisions. It was conscious that the libertarian provisions, the equality provisions, the reform provisions for women and children in 15 to untouchability, whatever it may be, all that will apply as a restriction.

[00:15:54]Because they were not sufficient with the police power.

[00:15:57]The police power being public order or morality or health.

[00:16:01]And that is the reason why this had to be controlled because we are a country with a huge amount of religious tension and group tension. And there is no point denying that we are not.

[00:16:16]Then, my lord, they faced another problem.

[00:16:19]They realized that group rights existed in India. India does not exist as individuals.

[00:16:27]It exists as groups and institutions.

[00:16:32]That led, my lord, to Article 26.

[00:16:36]And the only restriction that was placed was the police power.

[00:16:41]>> [clears throat] >> Then, my lord, they confronted another problem.

[00:16:50]This is a problem that goes to secularism and some conflicts between uh uh K. M. Munshi and Nehru on Somnath as well.

[00:17:02]Uh Munshi wanted Somnath constructed.

[00:17:05]And Nehru's view was, you can't do it with public money.

[00:17:09]So, if you want to decode, of course, the controversy came later, but it is there in the debates.

[00:17:16]And so they said that look, there will be no taxation for a particular month.

[00:17:23]We are We are a secular state and therefore I call this in a lot in my writing celebratory neutrality.

[00:17:30]Uh Rajiv Bhargav says principled distance.

[00:17:34]These are a lot important concepts from political theory that have come.

[00:17:39]That led to 27.

[00:17:41]28 was the biggest problem of all.

[00:17:45]Catholic schools.

[00:17:49]My lord, the domination of India [clears throat] for the last 75 years of people educated from convent schools.

[00:17:57]They've done very well. The others are coming up.

[00:18:00]And they were very concerned.

[00:18:03]First principle was secularism.

[00:18:06]The state you will not 28 one, the state will not impart religious instruction.

[00:18:16]This came to your lordships, my lord, in Aruna Roy's case.

[00:18:20]She said it was religion, your lordship said it was culture.

[00:18:25]It had to be interpreted.

[00:18:28]But the more difficult one was if you are getting not getting aid, then fine, you can do what you like. But if you get state aid, what should you do with students?

[00:18:41]Will you give them religious instruction?

[00:18:44]I went to a boarding school.

[00:18:46]Principal wrote to my father and he said, "Would you like your son to attend chapel and religious instruction?" My father said, "Oh, certainly." And so I spent 5 years in the choir, which I had absolutely didn't want to go, but I learned a lot about Christianity.

[00:19:04]At any rate, that was the purpose.

[00:19:07]And in TMA Pai, uh uh Justice Chief Justice takes the view no school can survive without aid.

[00:19:18]All of them are aided.

[00:19:20]St. Stephen's couldn't survive without aid.

[00:19:22]Convent schools can't.

[00:19:24]And therefore this was a very important issue. We are giving aid to all these people and it was a point raised by Govind Ballabh Pant. We are giving aid to them, no compulsory religious instruction.

[00:19:37]So that completes Now what do you do with the other variety of India?

[00:19:42]29, it is in general terms.

[00:19:45]I won't read it out but all of your Lordships have read it over and over again.

[00:19:50]30 is in general terms.

[00:19:54]Now here 30 poses a problem.

[00:19:57]The problem was that Justice J.C. Shah in 1963 said that because there are no limits here, that means it is absolute.

[00:20:11]When the matter came before the 11 judge bench T.M.A. Pai, they said this is not correct.

[00:20:17]No right can be absolute.

[00:20:19]If they have property, property regulation will apply. If they discriminate, of course India doesn't have a social anti-discrimination law.

[00:20:29]If they have bank accounts, all that regulation will come into this particular process.

[00:20:35]Then they had to regulate students. How many?

[00:20:40]St. Stephen's said 50%.

[00:20:44]And uh uh Now of course we have all that problem and that you must show the words establish and maintain are there. One controversy still remains in AMU.

[00:20:57]Was it established and maintained by the religion?

[00:21:03]But these controversies were [clears throat] all solved.

[00:21:07]So what was in the mind when faced with this diversity, faced with the pressure, faced with all the requirement of reform, what did they want to do with these articles?

[00:21:21]The one thing that was almost clear is they did not think of them as silos.

[00:21:30]So, I complete that point. I don't want to labor it anymore.

[00:21:34]I go my my lords into the next question.

[00:21:41]On page four onwards, I'm not going to read it.

[00:21:47]You have you have explained well already this part. Yep. I'm just supporting that argument, my lord, that these are the group rights that have been recognized in our constitution with national commissions to support them all the way. And the most interesting one is Nagaland. No act of Parliament in respect of religious and social practices, Naga customary law, administration of criminal justice, ownership and transfer of lands can be done by the central government without So, here is a huge range of protection.

[00:22:22]Can we put it in a silo?

[00:22:24]We can't, my lord.

[00:22:26]Next what I come to, my lord, I Mr. Subramaniam has already argued uh that there are no hierarchy.

[00:22:36]So, I put a page on it. I'm not going to, my lord, take your lordships' time in it.

[00:22:42]I also take the view which was expressed by Mr. Vaidyanathan to me, and I think this had a little ring in what Mr. the Solicitor General said, why are there so many restrictions? But I'm going to leave all that.

[00:22:58]So, kindly come to page eight.

[00:23:03]Here is where I give my response to the assimilative argument.

[00:23:08]Since I've already argued it, my lord, I am not going to go there. Yes, good.

[00:23:14]There is no point uh going there.

[00:23:19]The important thing, my lord, that emerges is actually at the bottom of page seven.

[00:23:28]While you are looking at these rights, what are the techniques that you use?

[00:23:33]The first and foremost technique was given to us by the constitution makers.

[00:23:38]Restrictive. Is it restrictive? Is it not?

[00:23:42]And they use many phrases, subject to, notwithstanding, phrases like that. So, the list of restrictions in the text and limit in the rights in question was what the first juristic technique was.

[00:23:59]Restrictions was to specific articles and crafted to them not susceptible to be transplanted.

[00:24:09]Where two rights or provisions were of equal status, the interpretation would be to give full effect to them by harmonization.

[00:24:19]And [clears throat] I think a number of us have stressed what harmonization means. If they are of equal quality, then you will try to give effect from both.

[00:24:28]Whether Devaru did this or not is another matter.

[00:24:32]Because Devaru in fact said that 26B will be subject to 25 to 2B. But, that is for your lordships to decide how your lordship does it.

[00:24:45]Then, my lord, in using religion comes with what I call balancing.

[00:24:52]Balancing is a judicial task. We can only assist it.

[00:24:57]It's the most difficult task that your lordship has. Your lordship goes through it every day.

[00:25:03]Reasonableness goes hand in hand with proportionality.

[00:25:10]And then they've been given the last one which I borrowed from the other side that law must mean just law.

[00:25:18]So, even if there is a law, say of temple, it must be a just law.

[00:25:23]If procedures are required, then the procedures should be followed. How your lordship will modulate it below is up to up to your lordships. Then my lord, what I do is on page eight, I give the Cooper argument.

[00:25:36]And on page nine, the integrity.

[00:25:41]And then my lord, why I argued the argument is reductionist. That's page 10.

[00:25:51]In the present reference, the propositions of the respondents are plainly reductionist in the following way.

[00:25:57]The individual right to conscience and freedom of religion is given total primacy. That's a reductionism.

[00:26:05]In a fairy tale way, it assumes individuals by some imagined social contract create a denomination whose rights are no more than the rights of individuals. This is reductionism.

[00:26:18]There is a failure to recognize that denominations often are not always consciously created but emerge over time and predate individuals born to them.

[00:26:29]There is a qualitative difference between a collection of individuals and a denomination and section of a religion which establishes and maintains institutions, possesses rights of management over I would say all religious affairs, own property, and administer property according to law.

[00:26:50]This is the qualitative difference between a collection of people and a collectivity called a denomination.

[00:26:58]The institutional rights are derived from 26.

[00:27:02]When I began my lord in my first address to your lordships, I said 26 is the most important right.

[00:27:12]Without property, without organization, no religion will survive beyond a few months.

[00:27:22]Because they survive on institutions.

[00:27:25]They survive on the pope. They survive on the marks. They survive on the temples. Take them away and interfere with 26, the very longevity and the future of a religion would completely disappear.

[00:27:39]But then But the denomination or the organization it holds the people together to a particular philosophy or religion. Quite right.

[00:27:48]>> Therefore, it is required. Whatever it may be.

[00:27:51]>> situation of religion in this country.

[00:27:53]That's right. Because if you want a religion to proceed, somebody has to do it in an organized way with property rights, with autonomy, managing all its affairs.

[00:28:06]Now, this Guruswamy then said management is different from control. This is just a lexical argument my lord. I don't even want to reply to it.

[00:28:14]>> Control is part of management. Sorry my lord. Control is one of the part of the management.

[00:28:18]>> Of course my lord, we can't It's it's a it it is linguistic quibbling my lord. Page 13 you have explained all these things.

[00:28:26]And then my lord, 20 how 26 is limited, I don't uh uh do anything. Only thing is that sub Romans uh seven, most important, such a change in 26 will totally denude it of its purpose and restructure both the right and limitation. I have already emphasized that.

[00:28:48]Now, my lord, I come to over the page if your lordships will come.

[00:28:52]I'll ignore all this, my lord, if your lordship has time. I doubt.

[00:28:56]I come to page 11, bottom of the page.

[00:29:00]I've changed my view on horizontal rights, my lord.

[00:29:04]I don't think they can be attached to any other right.

[00:29:08]They are self-standing.

[00:29:10]They are universal values.

[00:29:13]Each of the restrictions are there.

[00:29:16]Horizontal values can enter into a decision, but they certainly are not a limitation on the rights that exist.

[00:29:26]We have to make a very important distinction between a value which enters your your lordship's judicial in imagination and where, like a threshold practice, it becomes a limitation.

[00:29:41]And the difference between evaluating something and making it a restriction or a limitation, my lord, is fundamental to our understanding of part three. I'll come over the page, my lord. I will not go into all this uh for the next two pages.

[00:30:02]One 26 also you have Well, 26, my lord, I have actually dealt with. Yes. Your lordship is moving faster than me.

[00:30:14]Sometimes we call it a sign of impatience. I hope it isn't that.

[00:30:18]Because your note is very crispy.

[00:30:20]>> [laughter] >> That's very kind, my lord. That's very kind. That's what Mr. Subramanian tells me, but I don't believe it.

[00:30:30]Finally, my lord, I come to essentiality and integrality.

[00:30:39]>> [clears throat] >> My lord, there is a difference between a threshold interpretation of essentiality and integrality.

[00:31:00]Now, what happened in Sabarimala? I'm not enlarging.

[00:31:04]They said this is not essentiality of faith.

[00:31:08]What was the result?

[00:31:10]It was a limitation and they had no Article 25 rights.

[00:31:15]The 25 rights, if you treat it as a limitation, 25 rights will completely disappear.

[00:31:23]Likewise, in Sabarimala, if you did not give them denominational rights, 26 disappeared.

[00:31:32]And this is the importance of the concepts of essentiality and integrality on the one hand, my lord, and, my lord, denomination on the other.

[00:31:42]If they are threshold requirements, the effect will be 25 rights and 26 rights will be invalidated and they can never have the rights.

[00:31:56]Beyond that, my lord, essentiality serves no purpose.

[00:32:00]It can only be devices.

[00:32:03]One of your lordships may say, "Look, this is essential." Another may say, "This is unessential." Not in the same case.

[00:32:10]And it has happened.

[00:32:12]And therefore, my lord, your lordships are not the high pope or the high priests to wander into this particular area.

[00:32:21]And essentiality and integrality will take your lordships straight into it.

[00:32:27]The other argument as to how it was evolved, I've already done, my lord. I just want to add two things.

[00:32:34]My lord, kindly come to page 15, sub three.

[00:32:38]This is my interpretation of Durga Committee and Tilkayat.

[00:32:43]They are arbiter.

[00:32:46]And the reason why I say that is because the actual decision that was made in Tilkayat was Nathdwara Temple that he had no rights.

[00:33:00]He had no anterior rights, therefore they decided against him.

[00:33:04]Now, that is the ratio of the decision.

[00:33:06]The rest is all a carryover.

[00:33:09]Justice Gajendra-Gadkar, I don't mind saying so, was a reformist, and he saw this opportunity for reformism.

[00:33:17]Similarly, my lord, as far as the Durga Committee was concerned, the Khadims raised the raised the question, and once again, Justice Gajendra-Gadkar took a huge exploration into history and said, "By the way, you'd never had these rights."

[00:33:33]So, really, these are actually limited decisions if taken to the ratio decidendi.

[00:33:40]Now, my lord, I am not going to core beliefs are done.

[00:33:46]Uh page 16, my lord, I'm not going to read them because >> [clears throat] >> Mr. Jayagupta and Mr. Guruswamy gave certain examples. All those examples are in my respectful submission wrong.

[00:34:02]For example, Mr. Guruswamy said this the quarrel was who would appoint priests.

[00:34:08]Nothing, there was a power struggle taking place. That's what it was, no essentiality was involved. Hanif Hanif Muhammad Hanif is decided on the basis of animal husbandry. Small part is essential practices. So, all those examples, my lord, I'm not going to take your lordships through it, my lord.

[00:34:27]That's the end of it, but I will take you to one question on page 18 and one table and then I'm done.

[00:34:42]Manoj >> [clears throat] >> I place this before your Lordships and so I'm going to place it again. But I'm not going to while constitutional morality is certainly the creation of Chief Justices Mishra and Chandrachud and others.

[00:35:04]Chief Justice Chandrachud also gave a decision in the Madrasa case.

[00:35:09]And the question was whether basic structure could invalidate a statute.

[00:35:17]>> [clears throat] >> And this is what he says.

[00:35:21]It can be concluded that a statute can be struck down only for the violation of part two or any other provision of the Constitution or for being without legislative competence. The constitutional validity of a statute cannot be challenged for the violation of the basic structure. Here is his reason. The reason is that concepts such as democracy, federalism, secularism are undefined concepts allowing the courts to strike down legislation for violation of such concepts will introduce an element of uncertainty in constitutional adjudication. Recently this court has accepted that the challenge to the constituent validity of a validity in violation of a basic structure is a technical aspect because the infraction has to be traced to the express provisions of the Constitution.

[00:36:16]Now, if there is relativism in basic structure, it applies to constitutional reality. Morality.

[00:36:22]>> Morality. But this approach was not applied earlier.

[00:36:27]Sorry, my If Justice Chandrachud did not apply this approach in Sabarimala Exactly.

[00:36:35]That's the point I'm making.

[00:36:36]>> is 2035 The entire generation that has created I told your Lordships that in in Narula's case which was argued by Mr. Dwivedi he kept saying "Corrupt judges should not be part of a cabinet."

[00:36:51]And Justice Dipak Misra said Ministers, Ministers, please Should not MPs should not be part of the cabinet.

[00:37:00]And and what and what was said by Ministers And and and what was said was this "Actually, we repose a constitutional trust in the Prime Minister."

[00:37:12]So, morality became a constitutional trust in the Prime Minister. All those have been placed before you and it was placed very well by the solicitor because he made our task much easier because he read everything.

[00:37:27]And the one good thing that he read while everybody was was quoting passages from the Constituent Assembly debate, when he quoted a passage, he said "This was not agreed to by the Constituent Assembly. The decision is as important as what they said." And that made it our task easier. Now, I come to the last one, Lord.

[00:37:50]The extent of judicial review.

[00:37:55]What I've done here, my Lord is I have put down the article, the prescribed limitation.

[00:38:06]My Lord, Justice Bakshi has it.

[00:38:12]So, Article 25 (1) I've given what it is, what the prescribed limitation is.

[00:38:18]>> [clears throat] >> I'll just take two examples and it'll help. What must the court Judicial review in each case will be different.

[00:38:26]Not case by case, but class by class it will be different.

[00:38:31]The court must examine A, whether the claims are based on a bonafide belief.

[00:38:36]If not, the case goes out.

[00:38:38]Next step, interpret the extent of the freedoms guaranteed.

[00:38:42]Interpret the prescribed limitations.

[00:38:45]Apply proportionality and show that the law is fair fair and just. Give due respect to directive principles where applicable and as reflecting the the values underlying the constitution.

[00:38:59]Now, what I've done is for each one of these, I have in fact indicated how your lordship can proceed if your lordships are so advised and my lord it is not a question of how high or high how low the judicial review is. The question is, what is the judicial review in this case?

[00:39:23]My lord, I've taken a lot of your lordships' time. I'm extremely grateful.

[00:39:27]Thank you, Mr. Thank you.

[00:39:35]Who yesterday did not turn up very difficult for me. Can't accommodate now everyone. Yes, Mr. Dude.

[00:39:40]I have a very short note. So, I don't take much time. Let's In some ways, Lord, I'm responsible for this constitutional morality.

[00:40:04]I wanted the corrupt member of parliaments not being made minister.