'Can adjudicate if practice is superstitious': Supreme Court on Sabarimala review case

New Delhi: The Supreme Court on Wednesday said that it has the right and jurisdiction to hold what is a superstitious practice in a religion. It, however, questioned how people who are not devotees of Lord Ayyappa could challenge the temple custom invoking the PIL jurisdiction of the court.

A nine-judge bench led by Chief Justice of India Surya Kant was hearing arguments on petitions related to discrimination against women at religious places, including Kerala's Sabarimala temple, and on the ambit and scope of religious freedom practised by multiple faiths.

In his arguments, Solicitor General Tushar Mehta for the Centre contended that a secular court cannot decide the issue as judges are experts in the field of law, not religion.

"Even assuming that there is a superstitious practice, 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," he said.

"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," he added.

The bench, however, said the statement is too simplistic, as the court has the right and the jurisdiction to hold whether something 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," the court said.

Mehta, for his part, said judicial review can be done if a particular practice affects 'health, morality and public order and not because it is superstition.

He asserted that a secular court cannot decide that a religious practice is mere superstition, because the court may not possess such scholarly competence. The judges are experts in the field of law, not religion, he said.

Justice B V Nagarathna said that in determining what an essential religious practice is, the court should view it through the lens of the philosophy of that particular religion.

"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 bench, which also comprised Justices Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi, also wondered how persons who are not devotees of Lord Ayyappa could challenge the temple custom.

Having noted petitioners were are not devotees, Justice Nagarathna asked," Let us be clear, can any devotees of Lord Ayyappa file a writ petition challenging it? A non-devotee, a person who is not concerned with the temple, challenges it. Can this court entertain the writ petition?"

On this, Mehta said that this was exactly one of the questions referred to the nine-judge bench whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL. He also asked if he can file a writ petition demanding entry of Muslim women in mosques.

"This question must be decided first. No devotee has challenged it, it is the person who has no concern," Justice Nagarathna said. The 2018 Sabarimala judgment came on a PIL filed by Indian Young Lawyers Association.

Senior advocate Indira Jaising for the petitioner contended if the court feels there is no need to address on merits, kindly discharge the reference. Senior advocate Rajeev Dhavan submitted the petition was filed on behalf of Hindu women, who may have been reluctant to approach the court.

Mehta said if someone has no means, they can approach the District Legal Services Authority stating that his or her fundamental rights are violated, and can urge to file a petition on his or her behalf before the Supreme Court or the High Court.

"We know that many PILs today are motivated PILs. Somebody else is behind them," he claimed.

During the hearing, Mehta also submitted concepts of transformative constitutionalism and constitutional morality as standards cannot be used to adjudicate claims under Article 25 of the Constitution.

He said the word 'morality' under Article 25 cannot be understood as 'constitutional morality'.

He also said what constituted constitutional morality may vary from one judge to another, making it an uncertain standard for constitutional adjudication.

He contended the 2018 judgment allowing entry all age women to the Sabarimala temple was wrong in adopting the yardstick of 'constitutional morality'.

On this, Justice Nagarathna also said the constitutional interpretation must recognise the dynamic nature of morality in society. She also agreed the concept of constitutional morality can be inherently subjective.

Mehta further submitted that the constitutional morality was a "vague" term which cannot be used to substitute social morality. It was envisaged by the Constitution framers as governing the conduct of ministers and public functionaries, which was never meant to be applied as a standard to adjudicate religious claims.