this Supreme Court It observed on Wednesday that it has the power and jurisdiction to determine whether a certain practice within a religion is superstitious or not, rebutting the Centre’s contention that such matters do not fall within the ambit of judicial review.The remarks were made during the hearing of petitions regarding discrimination against women at places of worship, including the Sabarimala temple in Kerala, and the wider ambit of religious freedom under the Constitution.
A nine-judge Constitution bench, headed by Chief Justice of India Surya Kant, is examining the scope of interfaith religious practices and the extent to which courts can intervene.Initially, Solicitor General Tushar Mehta, appearing for the Centre, questioned how the court assesses whether a practice is superstitious.“Even assuming the existence of superstitious behavior,” he said, “the court cannot hold that it is superstitious. Under Article 25(2)(b) of the Constitution, the legislature should step in and enact a reform law.”“The legislature can say that a particular practice is superstitious and needs reform. There are several such statutes and laws to prevent black magic and other such practices,” Mehta told the bench, which also included Justices BV Nagarathna, MM Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi.Justice Asanuddin Amanullah responded by calling the argument too simplistic and asserting that courts have the power to examine whether a practice is superstitious.“What happens next will be dealt with by the Legislature. But, in court, you can’t say that the Legislature’s decision is the final word. That’s not possible,” he said.Mehta argued that secular courts lack the expertise to evaluate religious teachings.“Your Excellencies are experts in the legal field, not in the religious field,” he said.The Solicitor General further argued that religious diversity complicates such decisions.“Religious belief in Nagaland may be a superstition to me. We live in a highly pluralistic society. Maharashtra has the Black Act. They may say it is a prevailing practice in our region and that is why we protect it under Article 25(2)(b),” Mehta said.Justice Joymalya Bagchi posed a hypothesis asking whether activities such as witchcraft could be considered religious.“Your argument is that the Legislature should entertain and prohibit any practice that promotes witchcraft. Suppose a request is made to the court under Article 32 of the Constitution alleging the existence of a religious practice of witchcraft and the Legislature remains silent. Can the court issue directions prohibiting such practice without using the doctrine of unoccupied territory, keeping in mind… Health, morals and public order? “Judge Budge asked Mehta.The Solicitor General responded that judicial review was justified on the basis of “health, morals and public order” and not on labeling a practice as superstitious.Justice BV Nagarathna, meanwhile, stressed that courts must evaluate fundamental religious practices within the framework of the religion’s own philosophy.“You can’t apply (the perspective of) other religions and say this is not a necessary religious practice. The court’s approach is to apply the philosophy of the religion and comply with health, morals and public order,” she said.The hearing is ongoing.The matter dates back to the Supreme Court’s September 2018 ruling, in which a five-judge Constitution bench, by a 4:1 majority, overturned the ban on women aged 10 to 50 from entering the Sabarimala Ayyappa temple, declaring the practice unconstitutional.Subsequently, on November 14, 2019, a five-judge bench headed by then Chief Justice Ranjan Gogoi in a 3:2 majority referred the issue related to women’s entry into religious places to a larger bench, thereby framing wider issues regarding interfaith religious freedom.
