Kamal Ghorui
The Supreme Court on Wednesday observed that it has the authority and jurisdiction to determine whether a practice within a religion is superstitious, pushing back against the Centre’s contention that such questions fall outside judicial scrutiny.The remarks came during the hearing of petitions linked to discrimination against women at places of worship, including the Sabarimala temple in Kerala, and the broader scope of religious freedom under the Constitution.
A nine-judge Constitution bench headed by Chief Justice of India Surya Kant is examining the ambit of religious practices across faiths and the extent to which courts can intervene.At the outset, Solicitor General Tushar Mehta, appearing for the Centre, questioned how courts could assess whether a practice is superstitious.“Even assuming that there is a superstitious practice,” he said, “It is not for the court to determine that it is superstition. Under Article 25(2)(b) of the Constitution, it is for the legislature to step in and enact a reform law.”“The legislature can say that a particular practice is superstition and requires reform. There are several such statutes and laws, for the prevention of black magic and other such practices,” Mehta told the bench, which also comprised Justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi.Responding, Justice Ahsanuddin Amanullah said the argument was overly simplistic, asserting that courts are empowered to examine whether a practice is superstitious.“What will follow is for the legislature to deal with. But, in court, you cannot say that whatever the legislature decides is the last word. That cannot be,” he said.Mehta maintained that a secular court lacks the expertise to evaluate religious doctrines.“Your Lordships are experts in the field of law, not religion,” he said.The solicitor general further argued that religious diversity complicates such determinations.“Something religious for Nagaland may be a superstition for me. We are in a greatly diverse society. Maharashtra has Black Act. They may say this is the practice prevalent in our area and that’s why we protect it under Article 25(2)(b),” Mehta said.Justice Joymalya Bagchi raised a hypothetical, asking whether practices like witchcraft could be shielded as religious.“Your argument is that it is for the legislature to take up and prohibit any practice that promotes it (witchcraft). Let us say the court is approached under Article 32 of the Constitution, saying that a religious practice of witchcraft exists, and the legislature is silent. Can the court not use the ‘doctrine of unoccupied field’ to give directions to prohibit such a practice, keeping in mind … health, morality and public order?” Justice Bagchi asked Mehta.The solicitor general responded that judicial review would be justified on grounds of “health, morality and public order”, not on the basis of labelling a practice as superstition.Justice B V Nagarathna, meanwhile, emphasised that courts must assess essential religious practices within the framework of that religion’s own philosophy.“You cannot apply (the views of) some other religion and say this is not essential religious practice. The approach of the court is to apply the philosophy of that religion, subject to health, morality and public order,” she said.The hearing is ongoing.The matter traces back to the Supreme Court’s September 2018 verdict, in which a five-judge Constitution bench, by a 4:1 majority, struck down the ban on entry of women aged 10 to 50 into the Sabarimala Ayyappa temple, declaring the practice unconstitutional.Subsequently, on November 14, 2019, a five-judge bench led by then Chief Justice Ranjan Gogoi, by a 3:2 majority, referred questions relating to women’s entry into religious places to a larger bench, framing broader issues on religious freedom across faiths.
