Sabarimala case: Secular courts can’t decide on religious practices, Centre tells SC

The Supreme Court on Wednesday asserted its right and jurisdiction to hold what’s a superstitious practice in a religion even as the Centre contended that a secular court cannot decide such an issue as judges weren’t experts on religion.

On the second day of hearing on issues arising out petitions seeking review of the Supreme Court’s 2018 verdict that set aside the age-old restriction on entry of women aged between 10–50 years into the famous Lord Ayyappa Temple at Sabarimala hilltop in Kerala, Solicitor General Tushar Mehta attacked the doctrine of constitutional morality that has often been used by constitutional courts to test validity of laws.

He also raised questions over the Supreme Court’s landmark verdicts on decriminalising adultery and same-sex consensual relationships, saying they were based on the subjective application of "constitutional morality".

“Even assuming that there is a superstitious practice, it’s not for the court to determine that it’s a superstition. Under Article 25(2)(b) of the Constitution, it’s 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 laws… for prevention of black magic and other such practices,” Mehta submitted.

However, the Bench – which also included 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 – sought to test his argument on this point.

Describing Mehta’s arguments as “too simplistic”, Justice Amanullah said the court had the authority to decide if something was superstitious. “What will follow is for the Legislature to deal with. But, in the court, you cannot say that whatever the Legislature decides is the last word. That cannot be,” Justice Amanullah said.

“Your Lordships are experts in the field of law, not religion,” the Solicitor General said, adding a secular court cannot decide that a religious practice is mere superstition, because the court may not possess such scholarly competence to deal with it.

“Something religious for Nagaland may be a superstition for me. We are in a greatly diverse society. Maharashtra has Black Magic Act. They may say this is the practice prevalent in our area and that's why we protect it under Article 25(2)(b),” Mehta said.

Justice Bagchi wondered if the court can’t step in if approached under Article 32 of the Constitution against a religious practice of witchcraft where the Legislature was silent. “Can’t the court use the 'doctrine of unoccupied field' to give directions to prohibit such a practice, keeping in mind health, morality and public order?” he asked.

Justice Nagarathna said in determining essential religious practices, the court should view it through the lens of the philosophy of that particular religion, subject to health, morality and public order as mentioned under Article 25.

As she wondered how non-devotees of Lord Ayyappa could challenge the temple custom, the Solicitor General said the petitioner Indian Young Lawyers’ Association was not an organization of devotees. He said this was exactly one of the questions referred to the nine-judge Constitution Bench.

CJI Kant if the locus was an issue, then the writ petition should have been dismissed in 2006 itself, when it was filed. Only persons who are personally aggrieved can agitate issues relating to Articles 25 and 26 of the Constitution, the CJI noted.

Questioning the use of concepts of transformative constitutionalism and constitutional morality as yardsticks to adjudicate claims under Article 25 of the Constitution, Mehta said these concepts can’t be grounds for judicial review.

The concept of 'constitutional morality' was envisaged by the Constitution framers as (something) governing the conduct of ministers and public functionaries. This was never meant to be applied as a standard to adjudicate religious claims, he said.

"Sabarimala (2018 judgment) proceeds on the ground that morality means constitutional morality and social morality is only mob (morality), and therefore what is necessary is constitutional morality… I am saying that as understood by constitution framers, it is societal morality… Now social morality goes and it’s replaced by the vague term ‘constitutional morality’ which never had a meaning that the courts have started giving (to it)," Mehta submitted.

The arguments would resume on Thursday.