No Need To Attack Judicial Review. J Sai Deepak argued in sabrimala refrence case

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[00:00:00]Rules of personal purity and conduct prescribed for admission to and worship in these religious places shall in no way discriminate against or impose any disability on any person on the ground that he belongs to impure or inferior caste or menial class.

[00:00:17]Which is Can I just elaborate on this?

[00:00:20]You can say that this is the acharam or the custom of this particular temple.

[00:00:26]But if you use birth-based restrictions to prevent access or entry then that will certainly be in the teeth of the law no matter what.

[00:00:37]And that is what translates to 25 to B.

[00:00:41]So, while I'm not arguing the merits of the Sabarimala case I'm just giving this by way of illustration that if the temple says because of the deity's naishthika brahmacharya character, there are certain proscriptions or prohibitions or restrictions on access to a particular class of people which has got nothing to do with jati or caste in any way whatsoever because that class is across castes as far as that restriction is concerned then it doesn't run a foul of this prohibition.

[00:01:12]Therefore I'll build this argument as I go along.

[00:01:16]Section and class are not to be treated as two different classes altogether.

[00:01:22]Class has been used consistently across the debate to refer to caste.

[00:01:28]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 then religious diversity and rights under 26 can be easily defeated.

[00:01:47]Because there are temples on both sides or even institutions on both sides across the board where prohibition applies to people across genders.

[00:01:55]So, for instance, there is this article of the Temple in Kerala where access to men is restricted for specific reasons.

[00:02:03]I had also given this example in 2018 in the first round. There is a temple in this district called Satabhaya in Odisha where the priestesses are all of them are Dalits and there's a reason for it.

[00:02:12]Apparently, the original Brahmin priest ended up seeing the the deity in its uncloaked form and therefore to atone for it, he decided to hand over the temple to four Dalit priestesses and till date for the last 400 years that practice continues.

[00:02:26]The only time the practice was violated or breached in the recent past perhaps around 2018-19 was because of rising sea levels, the Shivalingam had to be lifted heavily or rather it has to be complete bodily lifted and therefore men were allowed for the limited purpose.

[00:02:41]So, what I'm trying to say is that rights under 25 to be or the enabling power under 25 to be has to be applied in a narrow sense, otherwise the purpose of carving of 26 will be completely defeated.

[00:02:53]I'm not making a policy argument. I'm making only a statutory argument in terms of what is the history. I'd only request my lords to kindly come to para number 20 at page number 13 for a moment.

[00:03:04]Following with the revisions which were proposed as far as classes 16 and 17, kindly see in the in explanation two, please see that is the second intended paragraph, religious worship was substituted with religious practice.

[00:03:18]My lords, the honorable Chief Justice sees that.

[00:03:21]So, here kindly see this. It says all persons are equally entitled to freedom of conscience and right freely to so on and so forth and other provisions of this chapter.

[00:03:28]And in that explanation two, which is 25 two, for the words religious worship, practice shall be substituted.

[00:03:35]Therefore, financial, economic, political, any other secular activity previously it was associated with religious worship, it becomes religious practice.

[00:03:43]Then my lords may come to para number 21 for a moment where I I summarize the net result of the discussion on clause 16. Can I request my lady to kindly take a look at para 21 at page number 14.

[00:03:56]>> Practice is broader than religious worship. Worship. I'm so grateful. That was the intent because otherwise it also limits rights under 25 (1).

[00:04:07]And therefore it was meant to widen up the entire conversation both on the 25 (1) and 25 (2).

[00:04:14]Sir, also it enables the state State, so grateful. That means the I'm so grateful. That means the power of the state is not limited only to aspects of worship. It also extends to practice.

[00:04:25]I'm with my lady. No, no, it doesn't extend to worship. It extends to practice.

[00:04:29]>> Practice. Fair enough. It is broad enough, but at the same time it does not extend to worship should be the I stand corrected. Grateful.

[00:04:38]I'm grateful for the nuance. I didn't think of it that way. I'm grateful for it. Kindly take a look at para 21 and I request my lady to kindly see Romans 1, 2, 3, and 4 for a moment at page number 14.

[00:04:49]My lord justice Kumar has it. Please.

[00:04:51]The term religious worship was replaced with religious practice in explanation two. This explains the use of religious practice in 25 (2) A. Social reforms were made permissible with the consent of kindly underscore the words legislature.

[00:05:03]Which means this addresses one fundamental question across the board.

[00:05:07]Subject to class under 25 (1).

[00:05:10]Enabling power under 25 (2).

[00:05:13]Subject to class under 26. Are powers to be exercised only by the legislature.

[00:05:19]Is the humble submission that all of that, which is why I think Mr. Gopal Sankaranarayanan said it is vertical in that sense, that the restrictions on those rights can be applied only by the state.

[00:05:32]And the state my lady is aware under article 12 and 13.

[00:05:36]State does not include the judiciary in its judicial capacity. Maraj Karan several judgments have held to that effect.

[00:05:42]Therefore, for the purposes of this chapter of this part, the reference to state is to the executive and the legislature and in my humble submission it does not include the judiciary.

[00:05:51]Therefore, the question of entertaining any writ petitions challenging those practices on the ground that it violates any of those subject to provisions does not even arise simply because those powers are limited to the state.

[00:06:07]And this perhaps could answer the question differently.

[00:06:10]I'm so sorry, my lady has something to say. No, if the state it enables the state to make laws Yes. to bring in social reforms Correct. such as for example entry Correct.

[00:06:21]Now, the the question here is not the controversy is not that the state has banned entry as such. I understand. State has made the law rule act and the rule for entry. I'm so grateful. Under that, because of the custom, there is a prohibition. So, can I in the Kerala act and rule. My lady is correct. So, here's what I've done.

[00:06:43]There are no banning entry. Please. It has made a law promoting entry. I'm so grateful. But under the custom, there is under the 3B rule Yes. there it is an exception. So, may I just respond to this? There are two specific portions of my written submission, both the old and the new, where I've specifically addressed this.

[00:07:01]And can I volunteer to respond to this before I continue with this because a question has arisen from the bench.

[00:07:06]Codification of a pre-existing religious practice by the state does not make that practice amenable to judicial review because it is not exercise of rights under 25(1) or 25(2) where limitations are imposed.

[00:07:25]The submission is if judiciary cannot or the courts cannot preside over constitutional challenges to practices themselves per se merely because the state rolls that practice by way of a legislation that doesn't make it amenable to review is my humble submission because at the core of it, my lady would still be getting into the question of 25 1 and 25 2 in that sense.

[00:07:46]>> The words whether the rationality of that custom can be questioned in a court of law. I am so grateful. That's the question. And if I may make this humble submission, I'm therefore applying the simple principle that what cannot be done directly can also not be done indirectly. So, if you cannot get into the rationality of a religious practice ipso facto, merely my apologies. Right.

[00:08:06]Hit the basic structure.

[00:08:08]>> [laughter] >> May I answer the question? Yes. I'm so grateful.

[00:08:12]Uh and there was You can say the role of the court is very restricted. I'm grateful. I'm grateful. Make a better argument. I'm with my lords on the point, which is in the process of entertaining those writ petitions to the challenge, again ERP test cannot be applied. Whichever way that that route is, which is the rewriting of the rules of religion would be beyond the scope of judicial review under Article 32 and 226 is my humble submission. Since the question of rationality was raised, I think this is slightly different. The moment you explain the wing of the state or the executive, Please, my lord. the power of judicial review automatically comes. I'm so grateful. The state state in the name of social welfare Right. suppose prohibits a religious practice. Right. Who will examine?

[00:08:54]I'm so grateful. Can I answer the question?

[00:08:57]When the state I'll just show one thing.

[00:08:58]Can I request my lords to kindly come to that portion of my written submission where I've answered this question straight off. Can I finish this and come to that minutes? Just so that the flow is not broken. The power of judicial review, there is no need to attack on that power so much. Fair enough. That is We understand that limitations are there. Please, my lords. But to say that there is no power at all it may also be very difficult for you. No, my lords. I I agree with my the situation. I completely It will again depend upon Please. the situation. And Can I perhaps request my lords