Sabarimala Reference | Judicial Review Over Superstitious Practices Not Barred, Says Supreme Court In Hearing

While hearing the Sabarimala Reference, the Supreme Court today verbally expressed that Courts cannot be barred from striking down practises or 'superstition' if they violate public order, morality or health, even if the legislature has powers to make laws for reform of religion under Article 25(2)(b) of the Constitution. The Court also remarked that any 'Essential Religious Practice' (ERP) has to be seen from the philosophical lens of the particular religion in question alone. The 9-judge Constitution bench led by CJI Surya Kant, and comprising 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 is hearing the reference.During the hearing, Solicitor General Tushar Mehta, appearing for the Union, submitted that it would not be in the domain of the Courts to decide what constitutes a 'superstition' and that the power lay squarely in the domain of the legislature by way of Article 25(2)(b). He made this submission in the context of criticising Chief Justice Gajendragadkar's opinion in the Ajmer Dargah Committee case that superstitious beliefs cannot claim protection under Article 25. He questioned whether the Courts can decide what is superstition and what is belief.Mehta referred to the Prevention and Eradication of Inhuman Evil Practices and Black Magic Act (notably in Maharashtra, 2013, and Karnataka, 2017) as an example of a law passed by the legislation to curb superstition. "Suppose there is a supertitious practice, the answer is not for the Court to decide. It is under Article 25(2)(b) for the Legislature to say, no we will reform it ....it is not within the judicial review for the Court to say this is superstition."However, seemingly in disagreement, Justice Amanullah opined that the Court's power of judicial review cannot be taken away in deciding what would amount to superstition. If the court decides under judicial review, it is then left for the legislation to bring in any law. "You made it too simplistic... the court has the right and jurisdiction in judicial review to hold what is superstition, and what will follow is for the legislature how to deal with it. But then to the Court you cannot say that whatever is the last word, the legislature decides." The SG replied that Courts and judges, especially in a secular society, cannot decide what constitutes a religious practice, considering that judges were experts in law and not the religion in question. He said : "A secular court can't decide a religious practice as mere superstition because you don't have scholarly competence. My lords are scholars in the field of law, not in the field of religion....."He further added that India has a diverse and pluralistic society, with complex belief systems. So what may be considered as superstition in one state or community could be viewed as religious in another. In such a scenario, it may not be ideal for the courts to interfere. "Something which may be religious for Nagaland may be completely superstitious for me. We are a very pluralistic society with a variety of people, religions, and belief systems, and it would be very hazardous for the court to say." Would Courts Be Barred From Exercising Jurisdiction Under Articles 32, 226, When Law is Silent On A Discriminatory Practice? Justice Bagchi weighed in to inquire, "If witchcraft is considered as a part of religious practice, would you or would you not describe it as superstitious?" SG agreed that he would. Justice Bagchi then explained that the Union's stand can be that it is up to the legislature to prohibit witchcraft and regulate any practice which promotes witchcraft. However, Justice Bagchi highlighted that in instances where a particular practise is challenged under Article 32 or 226, and there is no legislation categorically prohibiting it, the Court would still have the power to strike it down if it is contrary to public health, morality and order. "Since there is a religious practice of witchcraft and the legislature is silent, can't the court use the principles of an unoccupied field to give directions for prohibiting such practices? Keeping in mind and not going into the Essential Religious Practise, or otherwise, but the beacons of prohibition like health, morality, and public order." Justice Sundresh also remarked that judicial self-restraint in matters of religious practise cannot be confused with a complete exclusion of the Court's power to adjudicate in instances like the above. "We (courts) can adopt a hands-off approach, but to say that there should be a complete embargo?" Justice Bagchi explained that while the legislature may have the power to make adequate reformatory laws, that alone cannot bar the courts from exercising their powers under judicial review. "We understand the purpose of the legislature under article 25(2)(b), but that doesn't take away the residual jurisdiction of...

Sabarimala Reference | Judicial Review Over Superstitious Practices Not Barred, Says Supreme Court In Hearing

Anmol Kaur Bawa

The Court said that it can interfere with practices which violate public order, morality or health.

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