"A creature of the Constitution cannot enlarge its own power over the Constitution, while purporting to act under it" Logic of Late eminent Jurist Nani Palkhivala which was accepted by SC in famous Keshavananda Bharathi case protecting core fundamental rights from Legislature
SC Nine Judge bench Sabarimala reference is an interesting case where question whether SC as a creature of constitution can enlarge its own power over Constitution, while purporting to act under it to restrict religious freedom guaranteed under Art 25 & 26 needs an answer from SC
While in Keshavananda Bharati case SC restricted amending power of Constitution u Art 368 it would be interesting to see if it drops/restricts new tool "Constitutional Morality" developed in 28th Sept Sabarimala judgement as tool to enlarge its power to restrict Art 25&26 rights
Constitution can be amended by Parliament using powers u Art 368 (restricted by Kesavananda Bharati) & it can also be effectively amended using interpretation power by SC and the effect would be dilution of fundamental rights u Art 25 & 26 at the altar of Constitutional Morality
Beyond Keshavananda Bharati the question before SC nine judge bench is whether SC a creature of Constitution can enlarge its powers not only over Constitution but also over Hindu Deities whose times immemorial fundamental rights Art 26 recognizes & protect
Hindu Deity Sampradaya is that the purpose of human life is moksha which can be granted only by a Hindu Deity based on devotion increasing of which is the pious purpose of Deity incarnation in a temple. Does Art 142 give power to SC to interfere with Hindu Deity's pious purpose ?
Can power of SC extend to inspecting the classification methodology based on scale of devotion and the methods which is devotee specific adopted by a Hindu Deity in His temple to increase devotion in a devotee as part of pious purpose of Deity incarnation?
26th amendment of Constitution was also challenged in Kesavananda Bharthi case & conjoint reading of ratio in Kesavananda Bharathi with Raghunath Rao where 26th amendment was held valid makes it clear that Art 26 fundamental right of Hindu Deity Ruler of Travancore is untouched.
Art 26 embodies integral feature of Travancore Constitution ruled by Hindu Deity
"Devaswoms.and matters connected therewith shall not in any respect be within the scope or purview of the council of ministers or the legislative assembly"
extending this right to all Hindu Deities
"Devaswoms.and matters connected therewith shall not in any respect be within the scope or purview of the council of ministers or the legislative assembly"
extending this right to all Hindu Deities
Having already held in Raghunath Rao that
"a moral obligation cannot be converted into a legal obligation. Courts are seldom concerned with the morality which is the concern of law makers."
The SC cannot now do opposite dilute Art 26 rights of a Hindu Deity by invoking Morality.
"a moral obligation cannot be converted into a legal obligation. Courts are seldom concerned with the morality which is the concern of law makers."
The SC cannot now do opposite dilute Art 26 rights of a Hindu Deity by invoking Morality.
"Constitutional morality is no less essential than Constitutional legality. Dharma (Righteousness; sense of public duty or virtue) lives in the hearts of public men; when it dies there, no Constitution, no law, no amendment, can save it " late Nani Palkhivala that should guide SC
"A creature of the Constitution cannot enlarge its own power over the Constitution, while purporting to act under it" that SC recognized to limit Parliament power to amend is the same limitation to its own power of interpretation. This Constitutional Morality or Dharma guides SC.
