'Religious faith beyond judicial review': Centre backs restriction on women's Sabarimala entry in SC

New Delhi: Backing the restriction on the entry of women of menstruating age into Kerala's Sabarimala temple, the Centre on Tuesday told the Supreme Court that the issue falls squarely within the domain of religious faith and denominational autonomy, and lies beyond the scope of judicial review.

Solicitor General Tushar Mehta, appearing for the Centre, told a nine-judge Constitution bench headed by Chief Justice Surya Kant that if there is something unscientific, the remedy is with the legislature.

"We have to respect every denomination's practice; not everything is related to dignity or bodily freedom. If I go to a mazar or a gurudwara and if I have to cover my head, I can't say my dignity, right or choice is taken away," Mehta told the bench, also comprising Justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi.

Mehta said if someone claims that human sacrifice is an essential religious practice and approaches the court under Article 32 of the Constitution, then the court need not examine whether it is religious or essential, and reject it on the ground that it directly violates public order, morality or health.

"It is submitted that the court should expressly decline a model of review that asks whether a practice is 'rational', 'modern', 'scientifically defensible', 'acceptable to judicial sensibilities', 'unpopular views' or based upon broad and subjective 'doctrines' of 'transformative constitutionalism' or 'constitutional morality'. Such an inquiry is not constitutional review; rather, it would be a substitution of judicial philosophy for religious self-understanding, depending upon the subjective view of the bench, which is not trained in interpreting religious texts ...

"The Constitution protects religious freedom precisely because the protected field contains convictions, rituals, disciplines, and forms of worship that may not satisfy secular standards of reason, utility or majoritarian taste," Mehta said.

The solicitor general submitted that the doctrine of "constitutional morality" is not precisely defined in the Constitution.

"It is pertinent to note that 'constitutional morality' is not textually present in the Constitution. Rather, it is a judicially evolved, vague and indeterminate concept. Hence, the expansion of the term 'morality' -- which is explicitly referred to in the Constitution to mean and include 'constitutional morality' -- amounts to not only judicial overreach but an amendment of the Constitution," the Centre said.

The Centre submitted that there is an inherent risk in the court exercising its jurisdiction to interpret any religion.

"Apart from the fact that the court would not possess either expertise or scholarship on religious issues, holy books, scriptures, texts, et cetera, further in the context of India, which does not follow only one particular theistic religion but has a pluralistic society including Hindus, Muslims, Christians and other religions ... each religion has its different sections or denominations, and each denomination and section has their own faith, belief and expression for worship. The founding fathers were fully conscious of this pluralism of the country and the internal pluralism amongst each religion," the Centre said.

At the outset, the top court asked counsels for the parties to adhere to the timeline, and said it will not grant more time as other urgent matters are pending.

The hearing is underway.

In September 2018, a five-judge Constitution bench, by a 4:1 majority verdict, had lifted the ban that prevented women between the ages of 10 and 50 from entering the Sabarimala Ayyappa temple and held that the centuries-old Hindu religious practice was illegal and unconstitutional.

On November 14, 2019, another five-judge bench headed by the then CJI Ranjan Gogoi, by a majority of 3:2, referred the issue of discrimination against women at various places of worship to a larger bench.

The bench had then framed broad issues on freedom across religions, saying they cannot be decided without any facts of the particular case.

Besides the Sabarimala case, the verdict also referred to the larger bench the issues of Muslim women's entry into mosques and dargahs, and the entry of Parsi women, married to non-Parsi men, to the holy fire place of an Agiary.

On February 16, the top court had said it would commence the final hearing in the matter on April 7, which was expected to conclude on April 22.

Earlier, the top court read out seven questions it had framed on the scope of religious freedom.