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Browse Law School Education Constitutional Law Discussion on the Sabarimala Case

Charu Mathur: Moving on to the next question. When this matter came up before the Supreme Court, right, so Articles 25 and 26, were they at loggerheads with each other; how did they play?

Prashant Padmanabhan: No that is all came up… this loggerhead argument and all that came much later. There was no such argument; it was like from our side we are like every person is having a right to freely profess, propagate and practice religion; so that free practice means I should have entry to a place when it is a public place of worship and the Constitution is very clear that every section of Hindus should be allowed in all the public temples. If you don’t allow me to enter the temple, then where is my right? How can I exercise my right to profess or practice my religion. Belief can be without going there. You can have a belief. You need not go to a temple to have belief. Belief, faith and worship is little different from practice.

Charu Mathur: Right.

Prashant Padmanabhan: Somebody can have a belief that Lord Ayyappa is in the form of Naishtik Brahmachari; therefore, he is avoiding the presence of women; that is a belief. But if you practice it, then that practice should not infringe another person’s fundamental right to religion. That was the argument and Article 26 does not come into play because Article 26 is regarding religious denominations or sects to manage their property or their affairs. In my opinion, it’s like managing the affairs. It is not exercising that fundamental right to religion because fundamental right is exercisable only by persons or citizens. There is a judgment,State Trading Corporation,in which it was held by a nine-judge Bench of the Supreme Court that the corporation cannot be counted as a citizen.

Charu Mathur: Right.

Prashant Padmanabhan: Like that if you are a person and if you want to exercise the right to religion, then you should be an individual. It’s like not the entity which is managing the affairs cannot exercise their right to religion. So Article 26 is somewhat different. The interplay argument came into being because there was one argument that now on since we are following the essential religious practice test.

Charu Mathur: That I was about to come to: Essential religious practice.

Prashant Padmanabhan: Essential religious practice... So till now the Supreme Court is looking at if a person is going to court, I am saying that my right to religion under Article 25 is infringed, then the court will look first whether that person what he is claiming or she is claiming, he is an essential part of religion or what the restrictions upon that right is an essential part of religion.