Now after this, the other landmark judgment were, there were certain very far reaching observations made, was in the Sabarimala case. Indian young lawyers association and others Vs the state of Kerala and other. Now the Indian young lawyers association, that’s a very interesting case, I will tell you the geneses of the cases itself. There was as major controversy that there was.., I will give you a little of back ground. Sabarimala there is a practice of a Devaprasnam. There all matters, I mean, whether you have to build a roof here, or whether you should build a stair in this way, everything is decided by consulting the deity and the deity is consulted by means of a Devaprasnam. Devaprasnam, where there is a process and the answer, the deity gives you an answer. So during a Devaprasnam, there was a controversy, which erupted saying that, the deity had, there was the deity’s Brahmacarya or his Brahmacarya state was being disturbed due to women, the presence of woman or something that, or because the Tantri, the presiding Tantri or the chief priest was came under fire.
There were wide allegation of corruption on the part of the Tantri and so on and at that time a Kannada Actress came up and made a statement and saying that, it could be because of me, and the reason she give was, she was there in the temple, she was there, had gone for darsan and there was crowd, and she was pushed and she went and fell on the idol. So I have been to Sabarimala, it seems very far fits to me, because there is distance, about at least 5-6 meters and it’s on a rise platform with four steps, 3-4 steps and then there is the idol, beyond 4-5 meter, there rise platform. However much, there is a crowd, if you fall, you will fall on the stairs, you never get inside, you never be thrown inside and actually go and touch the deity.
But anyway, after this there was a kind Sudhikaranam or something like that done, because a women had visited. This appeared in NDTV, I believe, as a news item. And the people in the young lawyers association, they saw this and was a infringement of a fundamental right of a women. These are people who are nothing to do in the temple, who are even if it is thrown open to everybody in the world, they are not going to visit temple because they are not interest to temple and these people filed suit. So it was taken up.
Then there was another lady, who asked to be included, primary respondent was the Indian young lawyers association, who eventually withdraw. But the secondary impleaded which was.., the person was the leader of the Indian young lawyers association. But the secondary, the person impleaded, who was the college student from Panjab university. Second year college student, BA student from Panjab university, who impleaded herself. Nobody knows what she looks like, whether she really exist. This is between the year 2006 to 2018.
When this all happen and the Panjab university student was… sometime in 2012 or 2013, the person is Nikitha; name is not sure, whether it is Nikitha Anand. In some places it appears Nikitha Anand and in some places it appears like Nikitha Azad. I am not sure who’s this person is, I don’t know what she look like and she ran campaign, I believe called “Happy to Bleed” or something like that, and supreme court lawyer represented her. She impleaded herself in the case, and eventually the case, towards the end of the trail, the Indian young lawyers association actually withdrew from the case. The case is run on behalf of this person who are impleaded, who we don’t know whether she was really exist or not. But any way, the court did take it up. And the critical things the part of the judgment, there were certain observation that the bench made. The court should uphold a differential attitudes with such cases touching on religious matters, and redeem the matters practices under the scanner as essential. But never there was in investigate whether such customs, believes or usages violates the fundamental rights of the individual. It is a very interesting observation.
They say that, they may not have a complete and stood determine, whether the practices essential to the religion or not. We do not have, we may not have a that competence, we should adopt a differential attitude to whatever the respective experts are saying. But we always have a freedom to examine whether it violates fundamental rights of the individual and each case this, they held that, this violates fundamental rights of the dignity of the individual and the morality as defined, because they bound the morality, subjected to morality. The morality is constitutional morality not public morality, constitutional morality. And this morality of constitution is not what is determined by society and by public and that pointing in time. It is something held to be pristineand inviolate the constitution and this must adapt and overcome challenges thrown to it by society. This is outside judgment. It’s the observation made outside judgment.
So which means that, it must adapted to overcome the challenges even if you don’t like it, what’s there in the constitution, which will hold, even if every single Indian is not happy about it, the citizen is not happy about it. What is constitution, what is morality as defined in the constitution and as interpreted by the bench will hold. It’s not a matter of public opinion and it should adopt a transform challenges. It is a transformative document, whole point, it says it is a transformative document, the document is not for reflecting what the pause point of a society is, it is for transforming the society in to a certain vision or to a certain mold, which the constitution holds. The basic question is whether the recognition of right in hearing the religious denomination can impact upon the fundamental values of dignity, Liberty and equality which animate the sole of the constitution.
The right of the denomination must be balanced to the individual rights of each of its members. It would be impossible to conceive of a preservation of liberal constitutional values, while at the same time allowing the group rights define those values, they practicing exclusions and through customs which are derogatory to dignity. So, it says, the individual rights as held in the constitution holds. Groups rights are subservient to the individual rights. Essential practice is not sufficient to determined that you have a freedom to practice it. It’s not necessary, it doesn’t even have to be essential. Even if it is essential practices, if it violate a certain structure of the basic structure, basic feature of the constitution, we can strike it down and we can intervene.
Essential practice… now it brings out the essential practice of doctrine. We now go into the second doctrine, which we want to examine which is the Basic Structure Doctrine. So for this we need to go back to the 1973, to the Kesavananda Bharati case, 1973. The properties of the Edneer Mutt were taken over by the government of Kerala, one of the Devasom board, government of kerala, towards one of land redistribution problem, and the Mathadhipati of the Edneer Mutt at that time was the Sankaracharya, the Kesavananda Bharati swamigal, and filed suit saying that his rights, as a head of the institution and the rights of the denomination were being infringed upon because the denomination had the right to acquire properties and administer the properties freely, and in this case, on the landmark judgment, there is certain, rise certain very fundamental questions and the landmark it was, probably the biggest bench of the supreme court which ever was convened was the Kesavananda Bharati case, in which there were eleven judges.
The bench composed of eleven judges and eventually they held that there are certain parts in the constitution that is essential and the fundamental nature of the constitution, which they are called the Basic Structure of the constitution. The government, even though there is Article 368 gives the government of the day, the right to modify or to alter the constitution amend, alter and amend the constitution, the fundamental character cannot be changed. So that is the basic structure doctrine.
So if you, judged up both of this, what eventually come up with, is that the essential practice doctrine from being, any practice which is essentially religious in nature, which is wide ranging freedom from that, it has been vital down to essential practice in the Ajmer sharif case and then in the Sabarimala case, it has been thrown out of the window. We don’t even care whether they are denomination, or we are, what your duties are and what it says, if we find that it is in conflict with constitutional morality, we reserve the right to throw it out, we reserve the right to judges, or the bench the supreme court reserves the right to intervene. And even if the government, of the day, legislate to protect these freedoms, this legislation can be thrown out, because if this legislation is found to violate the basic structure of the constitution. So this is the back ground.