Heavy Clash Between Tushar Mehta & Rajeev Dhavan on Sabarimala Case Last Day | #supremecourtofindia

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[00:00:00]Lord I I have a serious objection to this comment only object to this kind of lord an objection raised against an amicus lord mikas is appointed by a lordship and he is not supposed to satisfy we do not lose our civility by pointing out that Mr. Dhan is a party in person in this matter but let it be that way but I would request Mr. Lord Singh Mr. Shivam Singh not to be cow down by this lord he is a young man you should not have been wearing your gown Mr. You should have removed your crown and argued.

[00:00:32]>> You are partying in person.

[00:00:34]>> Spirit of cricket which is relevant to understand. You can be declared out in the recognized forms of dismissal. You cannot be declared out because you are violating sportsman spirit of judges in different ways and that may not necessarily align with the aspect on how a legislation should be should be struck down. I would also like to place my appreciation for my entire team who has been assisting in this matter. The worship has anus who has given a lecture which has nothing to do with what we argue by what they are. Now are we to treat him as the inner chamber of judgments which will then advise your warships >> because what he has argued has got nothing to do with what we argue or what they argue and this creates is a very serious one. It might >> this is an unfair comment my lord >> multip it might multiply our burden but you are relaxed >> lord I have a serious objection to this comment >> completely unoff it is totally not inconsistent with the adversary system we follow when we have been a mic we take a position one way or the other now this the difference is that this is a reference case Now what they were supposed to do if we understood it is given our arguments responded to them given their arguments responded to them in a way that would be understood by your subjects and ourselves on my part lord I find no relevance whatsoever as part I'm sorry allow me to say something on this please allow me to say something I don't share that I don't share that perspective. If you have anything to say, we can put in a note. I don't allow me to say something.

[00:02:30]>> The point is that he has given his own perspective about 25 and 26.

[00:02:35]>> I don't >> and read with other parts of the constitution.

[00:02:38]>> I you have a right to disagree. I think the amicus is all support I >> all of you have a right to agree or disagree or partially agree partially disagree with the amicus that's why we are granting exact two weeks time by 29th May all of you are entitled to submit your revised comprehensive consult may I say something may I say something I'm going to sit down may I say something >> thank you may I say something lord.

[00:03:12]>> Yes.

[00:03:13]>> Lord kindly allow me to say lord I strongly object to this kind of lord an objection raised against an amicus lord mikas is appointed by your lordships and he is not supposed to satisfy either Mr. Dhan or other side he has given his own we do not lose our civility we do not lose our civility by pointing out that Mr. Dhan is a party in person in this matter but let it be that way but I would request Mr. Singh Mr. Shivam Singh not to be cowed down by this he is a young man >> you should not have been wearing your gown Mr. You should have removed your crown and argued. You are partying in person. No council is objecting to this.

[00:04:04]>> My boss to which we cannot >> sorry.

[00:04:10]Yes, Mr. Singh. 2 minutes.

[00:04:11]>> I would request Mr. Singh.

[00:04:14]>> I'm only a minute. Mr. Singh, I would request Mr. Singh. He's a young council, a brilliant council. He need not get cowed down by such observations. But all of us on both sides are standing by. or anything. These are all opinions alternate. Let's move on.

[00:04:31]>> No, it was really unfortunate. You cannot bully your younger colleagues.

[00:04:35]>> I'll take about five seven minutes. I won't take more than >> five minutes because we are also active.

[00:04:39]I thought I'd take 10 but anyway your lordship I'll just I'll just address the point in question sir I'll just give it to you >> sir what what we have done for everybody's benefit is that all the submissions that have been formulated these the seven questions which are in which have been raised by this honorable court we've prepared a tabulated grid saying that who has addressed which question in what manner your lordships will find that is first done for the review petitioners then there are their detailed submissions after that we have done that >> in a way compilation of both sides that what has been >> absolutely a lot absolutely a lordship >> of submission >> yes a lordship so in that regard it is this index which is available it is a gridlike summary then there is a detailed summary of all the arguments repeated for the petitioners your lordships after that there's just one issue which I wanted to address that of constitutional morality your lordships day before itself indicated that your lordships have heard this in extenso so I would not urge your lordships to consider every point of it. All the case law your lordship's attention has already been invited to it. There are just two or three paragraphs from my written submissions that I wanted to specifically invite your attention to your lordships and those paragraphs which are available your lordships I would just urge and your lordships may mark it these are par 63 and par 70 to 72 lordships I'll just summarize these in a couple of lines and lordships on the aspect of constitutional morality the strongest criticism which has come about is to say that this is a relativistic doctrine it is a valuebased doctrine and it is without any textual foundation. Whereas the strongest defense which has come for this constitutional morality doctrine is that is it is an essential check against majoritarianism and even basic structure is a judicial innovation. So if 13 of your lordships could consider basic structure to be part of the constitutional setup then there is no reason so as to discard constitutional morality in that framework. [music] your lordships the on most issues which your lordships have been addressed on probably the strongest position on those aspects has been taken by Mr. Vyanatan on all those arguments and a contrary perspective has been on the other side has been taken by Mrs. Inraj Singh on this aspect of constitutional morality the strongest criticism which has been leveled has been that of the learned SG and the strongest defense which has come about in this regard has been through Mr. Shadan farasad where he's talked about the basic structure equivalence of lordships in my respectful submission the idea or the conception which your lordships may deem it to be the appropriate one would lie somewhere in the middle in terms of what has been placed by Mr. Raju Ramachandran Mr. Ravindra Shivasav and Mr. Gopal san that there is some value or there is some element of of usefulness which is associated with retaining it as a doctrine and at the same time not using it as a overarching basis to invalidate legislations and to make good this argument your lordships I'll just par 70 71 and 72 of my written submissions are a complete answer to that I won't go beyond that you're lord >> par 70 and 71 >> 70 71 and 72 you're not 142 and 141 to 143 your lordships and just to contextualize it and make it in the simplest possible form I've used an analogy of sports particularly cricket so as to ensure that your lordships are able to grasp it in the correct form your lordships when it comes to legislation and invalidation of legislations there are only three remedies or three areas on which it can be invalidated the first being part three violation the second being seven schedule or legislative competence violation and the third being any other constitutional provision most more often than not that is sometimes traced to article 265. Now your lordship my submission is that please employ constitutional morality to understand the depth of the violation of a right and do not use it as a standalone or a supplementary ground to strike down the law. Please employ constitutional morality as a doctrine to reflect on why a law has violated a constitutional provision. And let me just anales analogize this to cricket your lordship.

[00:08:58]Now in cricket what we see is that and the idea being the spirit of cricket or generally sportsman spirit your lordship there are recognized modes of dismissal as per the laws of cricket you can be declared out for lbw bold caught behind etc. You cannot be declared out in sports law.

[00:09:17]>> I know. I've written the force.

[00:09:21]>> He's an expert on sports. I've written the forward for his chip of the old block. He reminded me exactly of his grandfather Mr. DP Singh. I had the great privilege of knowing him.

[00:09:33]>> Grateful. Grateful. Now lordships on this aspect wherein the the spirit of cricket which is relevant to understand you can be declared out in the recognized forms of dismissal. You cannot be declared out because you are violating sportsman spirit. You can use spirit of cricket to understand that what is say stumping or what is say run out some person is deriving advantage and the fielding team is alert and therefore they're able to run this person out. So please use spirit of cricket or constitutional morality to reflect on what is the reason behind such a provision being there but do not use it as a standalone basis so as to invalidate a legislation because then that creates a problem and this your lordships in fact in this regard this was an argument in fact raised by Dr. Dhan in the morning in this context that when we are seeing as to what is constitutional morality we've traveled a long line of legis long line of decisions we have we've dealt with all those cases whether it's the Narula case GNCT Delhi etc. So on all these aspects what is relevant is that please do not have a freestanding power available so as to analy legislation because number one a presumption of constitutionality will always attach with a constitutional piece of legislation. That's number one.

[00:10:58]Number two, your lordships is that constitutional morality is extremely abstract in its forms because it is nebulous and it can be varied from person to person and just as I offered in my analogy prior that the spirit of cricket can be understood by different umpires in different ways. your lordships constitutional morality can be understood by the most learned of judges in different ways and that may not necessarily align with the aspect on how a legislation should be struck down or invalidated your lordships and having said that your lordships and since I'm the last person to address your lordships please accept my deep sense of gratitude for all of your lordships who have heard this matter across so many days your lordships I would also like to place my appreciation for my entire team who has been assisting in this matter, especially my clark lordships who has done a lot of the heavy lifting in terms of the preparation and for the guidance and support of all the senior members of the bar as well as the younger members of the bar and the nodal councils who have probably worked tirelessly and who have taken the lead in ensuring that your lordships received the best possible assistance. I leave it to the senior members of the bar to address it.

[00:12:13]>> Lord, we join we join the learner the mus for the extraordinary hearing privilege and a pleasure >> and a learning experience to address this. The same thing is for us also none of us follow any dissatisfaction. I have attempted to say that perhaps milot's our reading of our constitution must be more indigenous in the sense that I have attempted to suggest milot that swaraj how the term swaraj was employed by Mahatma Gandhi by orindo is perhaps something that is nearer to our practices to understand how we read 21 256 extra I made that attempt at page 200 >> you said make it indization don't go for oxford >> you know not just that because swaraj Lords according to me my lords and there's a conception of justice mandas karamchan Gandhi as well as shriabindu is not just external it has an internal element it has spiritual freedom it has dignity it has selfrespect you know none of the judgments of this court on dignity self-respect have we ever relied on Indian doctor >> first person to use that concept was tilak was just prior to tilak millet it was sheindo's brother who started writing about the concept in his letters or abindu milots bindra I bindra go milots I think millet even on dignity self-respect millet this quote could have used suya mararad etc which has Indian roots millet but we have always used elements from abroad millets so that is what I've attempted to say in that last portion on swaraj mil I'm grateful for the time for the grateful millets