A secular court cannot determine whether a religious practice amounts to superstition, the Central government told the Supreme Court on Wednesday in the Sabarimala temple reference case.
The submission was made before a 9-judge Constitution Bench which is examining various legal questions concerning religious rights and freedoms in India.
The case arose from the 2018 verdict of the Supreme Court allowing women of all age groups to enter the Sabarimala temple in Kerala. Prior to that, menstruating women were barred from entering the temple.
Solicitor General Tushar Mehta, appearing for Union of India, said that if religion does not interfere with the State, the State must also not interfere with religion.
"Even assuming there is a superstitious practice, the answer is not for the Court to determine that this is superstition. Under Article 25(2)(b), 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, laws dealing with black magic, prevention of such practices, and others," Mehta told a nine-judge Constitution Bench.
Mehta further argued that secular courts cannot sit in appeal over validity, legality, propriety or rationality of attributes of deities.
"For example, in the case of Lord Ayyappa, the attribute is that of a Naishtika Brahmachari. Based on that, certain practices have evolved. It would neither be possible nor permissible to examine the attributes of the deity. Every deity, across religions, has particular attributes," he added.
On determination of essential religious practices, Mehta said religions other than Hinduism have one creator and one holy book, from which it can be examined what is essential to their followers.
"Hinduism, as I understand it, not only has plurality, it has internal plurality. There is no one originator, no one creator, no one God, no single religious scripture. At times, it becomes impossible to demonstrate what is “essential”. It creates an arbitrary situation," he said.
In context of Sabarimala verdict, Mehta said the right of entry into a temple must be tested against the rights of devotees who believe that a particular class of persons should not be permitted entry.
"It is said that one or a few individuals want to enter. But has the corresponding right under Article 25 of other devotees been examined? My right under Articles 25 and 26 is that if my religious tenets or beliefs prohibit something, then that will not be done. So even my right as a follower must be considered," he said.
A Bench of Chief Justice of India (CJI) Surya Kant along with Justice BV Nagarathna, Justice MM Sundresh, Justice Ahsanuddin Amanullah, Justice Aravind Kumar, Justice Augustine George Masih, Justice Prasanna B Varale, Justice R Mahadevan and Justice Joymalya Bagchi is hearing the matter.
During the hearing, Justice Amanullah remarked that Court has the right and jurisdiction in judicial review to hold whether a religious practice is superstition but what will follow is for the legislature to decide.
"But you cannot say whatever is the last word the legislature will decide," the judge said.
Mehta persisted with his submission, stating that a secular court cannot decide a religious practice as mere superstition.
"Your lordships don't have scholarly competence. You are scholars in field of law not in the field of religion," he said.
Mehta added that India is a pluralistic society with variety of beliefs across different regions.
"It would be hazardous for the court to say," he said.
However, Justice Bagchi asked whether it cannot even intervene in case of witchcraft.
"Let us say court is approached under Article 32 saying that there is a religious practice of witchcraft and legislature is silent, cannot the Court use the principle of unoccupied field to give directions for prohibiting such a practice keeping in mind not going into essential religious practice but on the beacons of prohibition like health, morality and public order," the judge said.
Justice Sundresh also questioned the argument.
"If we try to find the case of this, you can adopt a hands-off approach. But to say that it is to completely denude the Court of jurisdiction… the issue is of void and voidable action. If its so violative like Sati etc court can intervene.That is why the purpose of the legislature is there in Article 25. But that does not take away the jurisdiction of the Court in an appropriate case," the judge said.
CJI Kant remarked that the Court can always declare some practice as contrary to public order, morality or health.
"First, if something is there like witchcraft, cannibalism or human sacrifice, which shocks the conscience of the Court, then on the face of it, no further adjudicatory exercise may be required. We cannot replace ourselves with the expertise of subject experts. We are only examining how far such a matter can fall within judicial review. The moment there is such a kind of practice, the Court will simply say that it is contrary to public order, morality or health."
Justice Nagarathna observed that the Court's approach can be to determine an essential religious practice from the lens of the philosophy of that religion.
"You cannot apply some other religion and say it is not a ERP. Of course subject to public order, morality. This is about how court examine this and not whether it has jurisdiction or not," the judge said.
Background
The reference being heard by the Constitution Bench is connected to the top court's September 2018 verdict in which a 5-judge Constitution Bench, by a majority of 4:1, allowed women of all ages to enter the hilltop shrine in Kerala. That decision overturned the tradition that restricted the entry of women of menstruating age.
The ruling triggered widespread protests across Kerala and led to dozens of review petitions being filed by various individuals and organizations before the apex court.
In November 2019, the Supreme Court pronounced its judgment on the review petitions but did not decide the matter one way or the other.
It held that larger issues pertaining to the Essential Religious Practices Test, interplay between Articles 25 and 26 on one hand and Article 14 on the other and the conflict between the judgments in the Shirur Mutt case and Durgah Committee case will have to be decided by a larger Bench.
Hence, the matter was referred to a 9-judge bench.
The Court began hearing the case on Tuesday. Its verdict will have a major impact on various individual cases including whether women can be allowed to enter the Sabarimala temple in Kerala.
On the first day, Central government advocated for greater freedom in religious practices and asked whether courts are the appropriate forum to determine what constitutes an essential religious practice.
The 9-judge Bench is examining the following larger legal questions:
Ambit and scope of religious freedom;
Interplay between rights of people under Article 25 and the rights of religious denominations under Article 26 of the Constitution of India;
Whether rights of religious denomination are subject to other provisions of Part III of the Constitution;
Scope and extent of morality under Articles 25 and 26 and whether it includes Constitutional morality;
Whether religious denominations enjoy fundamental rights;
Meaning of expression "section of Hindus" under Article 25(2)(b);
Whether a person not belonging to a religious group can question practice of that religious group by filing a PIL.
Arguments Today
Continuing with his submissions, Mehta argued that temple priests cannot be appointed by a State. He said Archakas are chosen on the basis of hereditary through a mode of succession.
"In a public temple, the appointment of a pujari, who requires specific expertise, qualifications, and knowledge of the Agamas, can never be left to the government. A government of non-believers or even of believers cannot substitute this. This tradition is rooted in faith and belief. It is how the religion has evolved. And the denomination would trust only a person with particular qualifications and expertise to perform rituals and to touch the deity," he said.
Mehta added that if religion does not interfere with the State, the State must also not interfere with religion.
"These matters must emanate from within the religion, from the society, from the denomination itself. They cannot be State-controlled. That, in my respectful submission, is true secularism," he said.
The Court today also witnessed a discussion about denominations and whether all of them can be considered to be of religious nature.
"Let us see Aurobindo. Is that philosophy a religious denomination? It can be a denomination but not religious," Justice Nagarathna said.
However, Mehta said,
"This may be your ladyship's honest and informed view but what is relevant is my view as a follower. Whether I believe that to be religion."
CJI Kant attempted to explain Mehta's submission.
"We get your argument. It is that because Aurobindo's followers believe that the view that they follow is a religious view, it carries all ingredients of a religion therefore they themselves carve out to be an exception or denomination therefore others cannot impose on them that no no you are not a religion. If someone says, I follow Aurobindo right from morning since I get up till I sleep, I follow his idea, his philosophy, his guidance and treat him as my supreme being, then who are you to tell me that it's not religion. This is your submission," Justice Kant said.
Justice Nagarathna said that it can be freedom of conscience but cannot come under religious denomination. Similarly, Justice Bagchi questioned an expansive definition of a denomination.
"You are applying the test on the wrong place. What is the test being applied to? Is it to the people visiting the institution or to the Mutt? I understood the ratio to be that the test is applied to the organisation of the group of persons who are managing the temple or the Mutt. Whether they have a common faith, whether they have a common organisation, whether they are chosen by the followers of the Mutt, and that they themselves are followers and bound by that faith. That is the viewpoint," the judge told Mehta.
Justice Amanullah remarked that a denomination cannot be considered to be outside a religion only because people from other religions visit its place.
"Mr. Mehta, you were just referring to Ajmer Sharif Dargah. It is a denomination. It is a part or a section of a religion. Because, basically, Islam has Sufi thought, and that practice comes out of it, and then it gets protection. I am sorry, but merely because anybody can go there does not mean that it goes outside the purview of a broader denomination of that religion. Why are we trying to interpret Articles 25 and 26 where the language is very clear, unless a particular factual situation arises as to whether that fact would be covered by Articles 25 and 26? The question is - what is the level of protection, to what extent, and in respect of what nature of activity? Unless we keep that in focus, I think there is no dispute. Otherwise, anybody may decide it in that way."
In context of public morality and constitutional morality, Mehta said,
"Constitutional morality is not a ground for judicial review. Our former AG has said that it is an unfortunate concept and must die as soon as possible. But the question is what “morality” means. Is it constitutional morality, or public morality, or societal morality? There is intrinsic guidance in the Constituent Assembly Debates as to how the framers understood this clause."
Justice Nagarathna commented that what was once considered to be immoral or obscene in India is no longer regarded as same.
"That is the problem now in India. The problem in India is the standards which existed in the 1950s are not the standards today. You said that the standards of the 1950s are narrow-mindedness. It is not. The criticism now is that it is narrow-mindedness, myopic, old-fashioned. This is the problem of Indian society today," the judge said.
CJI said described it is the struggle of an evolving society.
Later in the hearing, Mehta said that in a country governed by democratic principles, it will always be the majoritarian view that will prevail.
"When it is question of testing the law, it is always the majority which passes the law. How can you define morality based on this," he said.
Justice Amanullah remarked that passing of a law by a majority does not mean it is a majoritarian view.
"There is a distinction," the judge said.
Mehta said:
"I bow down... I will not go much into it because that is not the question."
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