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Browse Law School Education Constitutional Law Discussion on the Sabarimala Case

Charu Mathur: So in a way, probably the Supreme Court is right also that these are the laws relating to this. This is the law, we are reading down and you decide on the review.

Prashant Padmanabhan: Yes, but now it is now since preliminary objections are overruled by the Supreme Court and now the nine-judge Bench is going ahead with the hearing of the case. We have to follow what the nine-judge Bench is going to hold. And, as a matter of fact, the Central Government also has intervened. And yesterday, the Solicitor General Shri Tushar Mehta submitted his written submissions. He said it is preliminary, it may be further enhanced after hearing the arguments of counsel for petitioners like Parasaran, Fali Nariman, Kapil Sibal and all that.

Charu Mathur: Right.

Prashant Padmanabhan: And on this side, Miss Indra Jaising is there. For the State of Kerala, Jaideep Gupta is there. Their arguments will be heard. But what I understand from the written submissions of Shri Tushar Mehta is that the government is telling the judiciary basically to take your hands off religion. If it’s a religious matter, court should not interpret fundamental rights in such a manner that the right guaranteed under Article 25 will efface. And in the same tone, Central Government is also telling the court— but if it is a purely civil right issue or a matter concerning secular aspects, somebody’s rights as a human being is infringed or something is a crime, then the court should interfere and give preference to the other portions of Part III.

Charu Mathur: Like for your female genital mutilation, which in my opinion is a crime.

Prashant Padmanabhan: Yes. That, I don’t think anybody is seriously opposing that it is a criminal offence and when Miss Indra Jaising pointed out to the nine-judge Bench that something like female genital mutilation you can’t support by saying that it is is my belief. Then the Chief Justice said if something is a crime, we will not protect it.

Charu Mathur: We have to wait for the judgment.

Prashant Padmanabhan: Yes, We have to wait for the judgment. The Central Government is basically saying only in such circumstances where there is a direct infringement of any fundamental right, court should interfere. And for social or any secular activity connected to religious social reform, there is a provision under Article 25, you can have a legislation for that. And the Central Government’s affidavit, very specifically says it’s for the State, and State under Part III means the Parliament or the State legislature or the executive.

Charu Mathur: Right.

Prashant Padmanabhan: Not the judiciary.

Charu Mathur: Right.

Prashant Padmanabhan: And therefore the judiciary should not try to reform. That’s what the argument is.