Kamal Ghorui
NEW DELHI: A nine-judge SC bench led by CJI Surya Kant on Tuesday cautioned constitutional courts against effecting changes in religious practices and customs and said only the people’s will, reflected through their representatives in Parliament and assemblies, could bring reforms.The bench, which has been hearing the sensitive faith vs fundamental rights debate, said, “Constitutional courts should be extremely reluctant to give its views on religious matters.”During the 14th day of the debate on Tuesday, the CJI said, “If the people of the country, through their elected representatives, seek social reform to change certain religious practices, and Parliament or an assembly enacts a law to that effect, the constitutional courts will accept it.“If such a law is enacted and people petition constitutional courts alleging that the govt is interfering in religion in the guise of bringing social reforms or regulating or restricting any economic, financial, political or other secular activities associated with religious practices, then courts would examine the validity of such legislation.”
CJI: Impossible to test all religious practices
These observations came from the bench of CJI Kant and Justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, A G Masih, P B Varale, R Mahadevan and Joymalya Bagchi, when senior advocate Jaideep Gupta was presenting the stand of Kerala govt, which had done a flip flop on the sanctity of the religious custom of Sabarimala Ayyappa temple which restricts entry of women in the 10-50-year age group.CJI Kant said it was impossible for constitutional courts to test the validity of a maze of religious practices in thousands of temples and shrines of other faiths, which follow peculiar customs and rituals relating to men and women.Gupta said if the validity of a religious practice was challenged before SC or HC, then it became imperative for the court concerned to determine whether the practice was an essential religious practice. “In determining the essentiality of a practice to a religion, the court must test it on the touchstone of tenets of the religion concerned and not against judicial or constitutional standards,” he said.When Gupta said quashing the practice of hereditary appointment of ‘archakas’ was a required social reform, Justices Nagarathna and Kumar said the process of appointment of ‘archakas’ may be a secular activity connected to a religious institution but the qualifications of ‘archakas’ were purely religious. The arguments are likely to conclude on Wednesday.
