The Centre argued that secular courts lack expertise to label religious practices as superstition, sparking a sharp debate in the Sabarimala case. The Bench questioned this stance, highlighting tensions between judicial review, faith, and constitutional rights.
The Supreme Court of India heard the Sabarimala reference through a 9-judge Constitution Bench, a case that could redefine how courts deal with religious practices, superstition, and constitutional rights. The matter arises from the dispute over the entry of women into the Sabarimala Temple and broader questions around the Essential Religious Practices (ERP) test, and the balance between Articles 25, 26, and 14.
During the hearing, sharp exchanges took place between the Bench and lawyers, especially on whether courts can decide what is “superstition” and how far judicial review can go in religious matters.
Senior Advocate Rajeev Dhavan strongly criticised reliance on written submissions, stating,
“It is singularly impossible for us to be accommodated till tomorrow. You say you will read our written submissions. You won’t. You are the most overworked judges in the world. We write written submissions to support our oral arguments, not the other way around. I have a great reservation about what SG argued. “
The Chief Justice responded,
” Let SG complete and thereafter we will follow the order of seniority and hear you all. ”
Dhavan further added,
” Review petition is not being decided here. Then who is here for review petitions is irrelevant. “
Solicitor General Tushar Mehta pointed out,
” Mr Dhavan’s submissions contradict our submissions the most. I perhaps will have to give a rejoinder to Mr Dhavan. Others are arguing other nuances on the same line. “
The Bench also raised concerns about courtroom conduct, with the Chief Justice remarking,
” There are a lot of lawyers who just want to replicate stuff just because live streaming is there and want to be on camera. “
A key controversy emerged on whether courts can classify religious practices as superstition. The Solicitor General argued,
” The question I pose to myself is this: how would the Court decide what is a superstitious practice? That is one aspect, within judicial review. But there is a more fundamental issue. Even assuming there is a superstitious practice, the answer 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. The legislature can say that a particular practice is superstition and requires reform. There are several such statutes, laws dealing with black magic, prevention of such practices, and others. So, it would not fall within judicial review for the Court to classify something as superstition or religion, and then go further to examine whether it is an essential part of religion. That, in my respectful submission, is the position. “
Justice Ahsanuddin Amanullah disagreed, saying,
” Mr Mehta, you made it too simplistic. The Court has the right and the jurisdiction to hold whether it is superstitious. What will follow is for the legislature to decide how to deal with it. But then, in Court, you cannot say that whatever the last word is what the legislature decides. That cannot be… “
The Solicitor General responded,
” I have a slightly separate view. A secular court cannot decide a religious practice as mere superstition, because Your Lordships do not possess that kind of scholarly competence. Your Lordships are experts in the field of law, not in the field of religion. “
Justice Amanullah continued,
” Then we have to classify those things which have that colour. When you come to court..we have to.. “
Justice Joymalya Bagchi pushed the argument further, asking,
” Witchcraft is considered to be part of religious practice. Would you or would you not have it as superstition? Your argument from there is that it is the legislature to take it up and prohibit any practice which promotes it. Let us say the court is approached under Article 32 saying that there is a religious practice of witchcraft and the legislature is silent. Cannot the court use the principle of unoccupied field to give directions for prohibiting such a practice, keeping in mind not going into essential religious practice, but on the beacons of prohibition like health , morality , and public order. “
The Solicitor General replied,
” it will fall under public order, morality, not because it is superstition. When Your Lordships are examining a jurisprudential doctrine, Your Lordships would normally not take extreme examples and test it. That is part of jurisprudential theory. “
Justice Bagchi responded,
” But that is what we do ..we stretch it to absurdium and test it. “
Justice MM Sundresh made it clear that courts cannot completely step back, stating,
” If we try to find the case of this, you can adopt a hands-off approach. But to say that it is to completely denude the Court of jurisdiction… the issue is of void and voidable action. If its so violative like Sati etc..court can intervene.. ” and further added, ” That is why the purpose of the legislature is there in Article 25. But that does not take away the Court’s jurisdiction in an appropriate case. “
The Chief Justice observed,
” First, if something is there like witchcraft, cannibalism or human sacrifice, which shocks the conscience of the Court, then on the face of it, no further adjudicatory exercise may be required. We cannot replace ourselves with the expertise of subject experts. We are only examining how far such a matter can fall within judicial review. The moment there is such a kind of practice, the Court will simply say that it is contrary to public order, morality or health. “
Adding to the debate on State interference, Solicitor General Tushar Mehta argued,
” It cannot be done under a statute or by the State. By this very logic, tomorrow, a Shankaracharya can be removed by the State, or an Archbishop can be removed by the State. These matters must emanate from within the religion, from the society, from the denomination itself. They cannot be State-controlled. That, in my respectful submission, is true secularism. If religion does not interfere with the State, the State must also not interfere with religion. Otherwise, this is the danger. ”
He further added,
” Your Lordships are a nine-Judge Bench, and the question is whether Articles 25 and 26 will be read in the manner they have been interpreted in Seshammal judgment. “
Another major debate arose around whether certain philosophies can qualify as a religious denomination. Justice BV Nagarathna observed,
” Please keep the illustration separate. Let us see Aurobindo. Is that philosophy a religious denomination? It can be a denomination but not religious. “
The Solicitor General countered,
” It is religion. This may be your ladyship’s honest and informed view but what is relevant is my view as a follower. Whether I believe that to be religion. “
The Chief Justice summed up the argument, stating,
” we get your argument. It is because Aurobindo’s followers believe that the view they follow is a religious view, it carries all the ingredients of a religion; therefore, they themselves carve out to be an exception or denomination, therefore others cannot impose on them that no, no, you are not a religion. If someone says I follow Aurobindo right from morning since I get up till I sleep. I follow his idea, his philosophy, his guidance and treat him as my supreme being then who are you to tell me that it’s not religion. This is your submission. “
Justice Nagarathna, however, clarified,
” It can be freedom of conscience . But cannot come under religious denomination.. “
The Solicitor General insisted,
” it would be a religious denomination… Else under 26(b) state can say for these followers something is not allowed. “
Justice Nagarathna reiterated,
” but it’s not a religious denomination “
Justice Bagchi added an important clarification on how courts apply the test, stating,
” You are applying the test in the wrong place. What is the test being applied to? Is it to the people visiting the institution or to the Mutt? I understood the ratio to be that the test is applied to the organisation of the group of persons who are managing the temple or the Mutt. Whether they have a common faith, whether they have a common organisation, whether they are chosen by the followers of the Mutt, and that they themselves are followers and bound by that faith. That is the viewpoint. “
Justice Ahsanuddin Amanullah referred to the Ajmer Sharif Dargah, observing,
” Mr. Mehta, you were just referring to Ajmer Sharif Dargah…. it is a denomination. … it is a part or a section of a religion. Because, basically, Islam has Sufi thought, and that practice comes out of it, and then it gets protection. I am sorry, but merely because anyone can go there does not mean it falls outside the purview of a broader denomination of that religion. Why are we trying to interpret Articles 25 and 26 where the language is very clear, unless a particular factual situation arises as to whether that fact would be covered by Articles 25 and 26? The question is: what is the level of protection, to what extent, and in respect of what nature of activity? Unless we keep that in focus, I think there is no dispute. Otherwise, anybody may decide it in that way. “
Adding further to the intense constitutional debate, Justice Joymalya Bagchi raised a crucial question on the clash between constitutional morality and societal or religious morality, observing,
” Constitutional morality governs secular life. In the religious sphere, what governs is the understood morality of the society, as reflected in the religion followed by a particular denomination or sect. So, can the secular character of the citizen and the religious belief of the citizen be merged in a secular democracy, or tested only on one touchstone, that is, constitutional morality, if the practice is otherwise socially accepted and in consonance with the cultural ethos of the nation? Societal morality… “
Responding to this, Solicitor General Tushar Mehta took a strong stand against the concept, stating,
” Constitutional morality is not a ground for judicial review. Our former AG has said that it is an unfortunate concept and must die as soon as possible. “
Further continuing the debate on the meaning of “morality” under the Constitution, Solicitor General Tushar Mehta argued,
” But the question is what “morality” means. Is it constitutional morality, or public morality, or societal morality? There is intrinsic guidance in the Constituent Assembly Debates as to how the framers understood this clause. ”
He added,
” I am on the point that “morality” here means societal morality. I am not on whether the State can impose a particular view… not every law, whether on morality or otherwise, will have to pass constitutional muster. You do not need a judgment for that proposition. “
Justice B.V. Nagarathna highlighted how societal standards have changed over time, observing,
” Please, with the passage of time in Indian society, what was once considered immoral or obscene is no longer regarded as immoral or obscene. That is the problem now in India. The problem in India is this. The standards that existed in the 1950s are not the standards today. You said that the standards of the 1950s are narrow-minded. It is not. What is happening today is being portrayed as open-mindedness, but that does not necessarily mean it is. Because now everything earlier is labelled as narrow-minded, myopic, and old-fashioned. This is the problem of Indian society today. “
The Chief Justice briefly remarked on the broader context, stating,
” struggle of evolving society “
The Solicitor General responded,
” Tranformative constitutionalism. I have been hearing this. But never understood quite “
Justice Nagarathna clarified her stance, saying,
” not about transformative constitutonalism. That is a good thing. “
Adding further to the debate on constitutional morality and judicial review, Solicitor General Tushar Mehta argued,
” Constitutional morality is a sentiment. It is not a doctrine upon which a legislation can be tested. ”
He further stated,
” In a country governed by democratic principles, it is always the majoritarian view which prevails, particularly when it comes to testing a law, because it is the majority which enacts the law. How then do you define morality on that basis? Thereafter, subsequently, there may be an evolution or change in understanding… “
Justice Ahsanuddin Amanullah pushed back, observing,
” No no… Just because a law is passed by majority does not make it majoritarian. ”
The Solicitor General responded briefly,
” I will not go much into it. “
Continuing his submissions, Mehta said,
” I would request Your Lordships to allow me to read this fully, for two reasons. One of the questions which Your Lordships have framed is: What is the extent and scope of judicial review? And the second is: What is “morality”? Whether it is societal morality or constitutional morality. In that context, there is a judgment in Joseph Shine v. Union of India. “
Chief Justice Surya Kant questioned the reliance on foreign academic opinions cited in the Joseph Shine v. Union of India judgment, remarking,
” Who is this Segal? He has almost been referred here as if he is second Ambedkar? ”
He further added,
” These are viewpoints… subjective viewpoints of some professors, some writers, some authors, whosoever it may be. We do not know. We have no clear idea about the eminence of the author whose view has been followed. But ultimately, the judgment as such is not under question… “
Justice Nagarathna clarified the scope of constitutional morality, stating,
” Constitutional morality is in the realm of constitutional governance. It may not be palatable to you but that is not the scope here. “
Justice Bagchi added,
” That was just the view point of one of the judges. But the ratio was on gender discrimination. “
The Solicitor General continued,
” I am referring to paragraph 195 of the Joseph Shine judgment, where a JNU professor, Professor Nivedita Menon, is quoted. I do not wish to trouble the learned professor. She is known for certain views, including that the Indian State is illegally occupying certain States, etc., etc. I am not going into that. But now, that view finds place in a Supreme Court judgment. It has the status of being part of the record. “
The Chief Justice responded,
” If so many foreign authors cited why not some Indian professor? ” and also remarked, ” How can it be an offence for the woman but not a man. On that ground alone… “
Concluding this segment, the Solicitor General linked the issue back to the Sabarimala dispute, stating,
” But here dignity of women has been brought into Sabarimala. “
Adding a lighter yet significant moment during the hearing, Chief Justice Surya Kant remarked on the diverse composition of the Bench, stating,
” Atleast we will not be said that representation was not there (concerning members of different faith and gender on the bench). Of course outcome can be wrong etc. “
Justice B.V. Nagarathna acknowledged this, saying,
” Thanks to the honorable Chief Justice. Hinting about composition of the bench. You can’t say no representation etc. “
Solicitor General Tushar Mehta responded with a pointed remark,
” It is representative. None of you all are from Harvard, and Yale. This reflects those who have risen from the ranks and played on the streets. So we know what social morality is… ” and added, ” Dissent is a call to the brooding generations of the future. “
Justice Joymalya Bagchi noted the reference to foreign jurisprudence, observing,
” You are quoting American judge Huges now. We should look for the best from everywhere and not be a slave to any. “
The Solicitor General replied,
” My Lords, we should expect light from every quarter of the world, provided we are in darkness. But let us not reverentially follow something coming from the West and selectively introduce it into our jurisprudence. “
Justice Nagarathna responded sharply,
” Now you are citing Chief Justice Roberts to us… “
Solicitor General Tushar Mehta argued,
” Article 26(b) is not an island. But between the two, being a denominational right, it may have precedence, provided that where there is a law requiring it to be curtailed, regulated or restricted, that would be under Article 25(2). “
He further cautioned,
” My concern, which I have already shared, is this: if we say Article 26(b) is completely unhindered, then even persons from Scheduled Castes, leaving aside Article 17, could be excluded. “
Highlighting broader implications, he added,
” The worry is larger. If Article 26(b) is interpreted as a standalone provision, without any balancing, one denomination within Hindus or Muslims may exclude another denomination of the same religion. “
He warned of the consequences, stating,
” That would create internal disharmony within religions. We may not create a situation where denominations begin to exclude each other. “
Concluding this line of argument, the Solicitor General submitted,
” Therefore, it may be in rare circumstances that Article 26(b) is read subject to Article 25(2)(b), but it can never be treated as an isolated island provision. “
, Solicitor General Tushar Mehta argued,
” There are difficulties. Take religions like Hinduism. We have Hinduism, Islam, Christianity. The other religions have one creator, one originator, one holy book, from which you can demonstrate what is stated and therefore what is essential. “
He continued,
” Hinduism, as I understand it, not only has plurality, it has internal plurality. There is no one originator, no one creator, no one God, no single religious scripture. “
Highlighting the challenge, he stated,
” At times, it becomes impossible to demonstrate what is “essential”. It creates an arbitrary situation. “
Concluding this argument, the Solicitor General submitted,
” Therefore, in my respectful submission, the essential religious practices doctrine, which has been introduced, is wrongly inserted. It is contrary to . Textually also, it does not emerge from Articles 25 or 26. “
Adding to his concluding submissions, Solicitor General Tushar Mehta emphasized the limits of judicial scrutiny in matters of faith, stating,
” My respectful submission is that the right to practise religion should be sufficient. In every religion, there are certain attributes attributable to the deity, and one must proceed on the basis of those attributes. “
He argued,
” Secular courts are not expected to sit in appeal over the validity, legality, propriety or rationality of those attributes. “
Citing the example of Lord Ayyappa, he said,
” 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 the attributes of the deity. Every deity, across religions, has particular attributes. “
On the issue of competing fundamental rights, he added,
” Third, comparative intra-fundamental rights conflict. This is my last submission. “
Explaining further, he stated,
” Whenever we speak of one fundamental right, it affects more than one individual. For instance, my right to free speech affects my learned friend’s right not to be offended. I cannot say something defamatory. “
He extended this to the Sabarimala issue, saying,
” Similarly, 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. “
Highlighting a gap in earlier analysis, he pointed out,
” That aspect has never been examined. “
He continued,
” It is said that one or a few individuals want to enter. But has the corresponding right under Article 25 of other devotees been examined? “
Stressing the rights of believers, he argued,
” My right under Articles 25 and 26 is that if my religious tenets or beliefs prohibit something, then that will not be done. So even my right as a follower must be considered. “
Concluding on constitutional balancing, he added,
” And proportionality… that has not been considered. “
Adding to the proceedings, Justice Ahsanuddin Amanullah questioned,
” Will you also be addressing us on the characteristics of Lord Ayappa? “
Solicitor General Tushar Mehta responded,
” Let me say this, the Sabarimala judgment is, in my respectful submission, incorrect, which I will demonstrate, irrespective of the view Your Lordships may ultimately take on Articles 25 and 26, whether they are read together or separately. I am in favour of the review. I am saying it is a wrong judgment. But the reference before this nine-Judge Bench, as I understand it, is to decide the larger judicial policy, how to deal with questions of religious freedom. Therefore, as all of us have understood, the merits of the Sabarimala judgment, and its correctness or otherwise, are not to be gone into here. “
Justice B.V. Nagarathna then raised a key issue regarding locus standi, asking,
” What follows from what you have just submitted is this, the original writ petitioners, if we have understood correctly, are not devotees. No devotee has approached this Court challenging this. Then who are the writ petitioners who are assailing this? ”
She further asked,
” Who is the original petitioner? “
The Solicitor General clarified,
” The original petitioner is the Indian Young Lawyers Association. “
Justice Nagarathna continued,
” They are not devotees. But… let us be clear. Can any devotee of Lord Ayyappa file a writ petition challenging this? It is not…If a non-devotee, a person who is not concerned with that temple, challenges it, can this Court entertain such a writ petition? “
Adding further to the discussion on locus standi and PIL jurisdiction, Justice B.V. Nagarathna observed,
” So, Mr Solicitor, we have all been trained… we have all practised in trial courts. If a suit is filed by an association, the first question would be under Order VII Rule 11 a… no cause of action, no causal connection… the plaint would be rejected. “
Chief Justice Surya Kant remarked,
” I have often used the term invisible victims of the judicial system. “
Responding, Solicitor General Tushar Mehta stated,
” I call it a fight between silent majority vs vocal minority. “
On Public Interest Litigation (PIL), he argued,
” On PIL jurisdiction, my Lords… Your Lordships rarely sit in a Bench of nine. PIL jurisdiction was initiated in Bandhua Mukti Morcha v. Union of India, at a time when people had no means to approach the Court. I have pointed out in my written submissions that today the judicial system has become far more transparent and accessible. By e-filing, even a letter can reach the Court. Now, no one really needs representation through another for an unrepresented class. National Legal Services Authority is there. District Legal Services Authorities are there. “
He further added,
” If someone has no means, they can approach the District Legal Services Authority and say, my fundamental rights are violated, advise me, or file a petition on my behalf before the Supreme Court or the High Court. Then why, my Lords, should such PILs be entertained? And we know that many PILs today are motivated PILs. Somebody else is behind them. “
The Chief Justice responded by highlighting the Court’s evolving approach, stating,
” The answer is very simple. Nowadays… and “nowadays” does not mean only the last few years… These Courts themselves have been very, very careful in entertaining PILs. We have laid down parameters to test them. Every day, we examine the real cause. There are several factors we now apply while testing a PIL. If you sit in Court No. 1, you would have seen how many PILs we actually entertain. Notices are issued only when there is substance. Perhaps from 2006 to now, 2026… over these two decades, the situation has evolved, and the Court has become more cautious. The point is this, on a general principle of PIL, we may not even need to hear you. We agree with you that the Court has to be very cautious in entertaining PILs today, particularly when people come with different kinds of agendas.”
The Supreme Court of India will continue hearing the Sabarimala reference before the 9-judge Constitution Bench tomorrow.
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