The Union government on Wednesday said that a secular court cannot determine whether a religious practice amounts to superstition, Bar and Bench reported.
Solicitor General Tushar Mehta, representing the Union government, made the contention before a nine-judge bench hearing a case involving constitutional questions related to the entry of women into Kerala’s Sabarimala temple and discrimination at other religious places.
In September 2018, a five-judge Constitution bench had, by a 4:1 majority, lifted a ban on women of menstruating age from entering the Ayyappa temple at Sabarimala.
However, in November 2019, another five-judge bench, in response to review petitions against the verdict, referred a set of broader legal questions about the freedom of religion to a nine-judge bench.
The bench comprises Chief Justice Surya Kant, along with Justices BV Nagarathna, MM Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi.
The court began hearing the matter on Tuesday.
On Wednesday, Mehta told the bench that if religion does not interfere with the state, then the state must also not interfere with religion.
He added that it would not be within the domain of the courts to decide what constitutes “superstition”, and that this power lay with the legislature under Article 25(2)(b) of the Constitution, Live Law reported.
Article 25(2)(b) empowers the state to regulate, restrict or reform secular activities associated with religious practices, specifically allowing laws that provide for social welfare and reform.
“The legislature can say that a particular practice is superstition and requires reform,” Bar and Bench quoted the solicitor general as saying. “There are several such statutes, laws dealing with black magic, prevention of such practices and others.”
Amanullah, in response, said that a court has the jurisdiction in judicial review to determine whether a religious practice is superstition, but what follows would be for the legislature to decide.
“…to the court you cannot say that whatever is the last word, the legislature decides,” Live Law quoted the judge as saying.
Mehta also said that 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,” Bar and Bench quoted him as saying. “But has the corresponding right under Article 25 [which guarantees the right to freedom of religion] of other devotees been examined?”
Noting that a secular court cannot decide a religious practice as mere superstition, Mehta added: “Your lordships don’t have scholarly competence. You are scholars in field of law not in the field of religion.”
The chief justice, however, observed that the court can declare a practice as contrary to public order, morality or health, Bar and Bench reported.
The nine-judge bench has been asked to examine the interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions, especially Article 14, which guarantees equality before the law and equal protection of the laws.
The bench has also been asked to determine whether the rights of a denomination to manage its religious affairs under Article 26 are subject to other provisions of Part III of the Constitution apart from public order, morality and health. Part III deals with fundamental rights.
On Tuesday, Mehta questioned whether courts are the appropriate forum to decide what constitutes an essential religious practice.
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