Sabarimala women entry: Courts cannot decide if religious practices are superstition, Centre tells SC

A secular court cannot determine whether a religious practice amounts to superstition, the Centre told the Supreme Court on Wednesday during hearings concerning the entry of menstruating women into the Sabarimala temple. The submission was made before a nine-judge Constitution Bench, which started examining key questions on religious rights and freedoms on Tuesday.

Appearing for the Union government, Solicitor General Tushar Mehta argued that if religion does not interfere with the state, the state must not interfere with religion. “Even assuming there is a superstitious practice, it 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,” Mehta said, adding that several laws already address practices such as black magic.

He further submitted that secular courts cannot sit in appeal over the “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 these attributes,” he said.

On essential religious practices, Mehta argued that while other religions may have a single creator or holy book, Hinduism has “internal plurality”. “There is no one originator, no one creator, no single scripture. At times, it becomes impossible to demonstrate what is ‘essential’. It creates an arbitrary situation,” he said.

Referring to Sabarimala, Mehta said the right of entry must be balanced against the rights of devotees. “It is said that a few individuals want to enter. But has the corresponding right of other devotees under Articles 25 and 26 been examined?” he asked.

The Bench, led by Chief Justice of India Surya Kant and comprising Justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi, questioned the Centre’s stand.

Justice Amanullah observed that courts do have jurisdiction under judicial review to examine whether a practice amounts to superstition, though the consequences may be left to the legislature.

“You cannot say whatever is the last word, the legislature will decide,” he remarked. Mehta, however, maintained that courts lack the competence to adjudicate religious questions.

Justice Bagchi raised the question of judicial intervention in cases such as witchcraft. “If the legislature is silent, cannot the court intervene under Article 32 to prohibit such practices on grounds of public order, morality and health?” he asked.

Justice Sundresh also disagreed with a blanket exclusion of judicial review. “To say that is to completely denude the court of jurisdiction… If a practice is so violative, like Sati, the court can intervene,” he said.

CJI Kant noted that courts can declare practices contrary to public order, morality or health. “If something like witchcraft, cannibalism or human sacrifice shocks the conscience of the court, no further adjudication may be required,” he said.

Justice Nagarathna added that courts may assess essential religious practices from within the philosophy of that religion. “You cannot apply another religion’s standards… This is about how the Court examines the issue, not whether it has jurisdiction,” she said.
(With inputs from Bar and Bench)