The Supreme Court has the right to review religious practices for elements of superstition and won't tolerate being told the legislature has the "last word" in such matters, a Chief Justice Surya Kant-led bench said in the Sabarimala case.
The reminder came amid arguments over a constitutional challenge - on the balance between women's rights and religious freedom - to the temple's ban on girls and women aged 10-50.
"The court has the jurisdiction to hold whether it (any practice) is superstitious. What will follow is for the legislature… how to deal with it. But in court you cannot say 'whatever is the last word is what the legislature decides'. That cannot be…" it said and cited examples of other superstitious practices - witchcraft, cannibalism, and sati - to make its point.
The snapback came after Solicitor-General Tushar Mehta argued: "A secular court cannot decide if something is superstition… they don't have scholarly knowledge of the religion."
"Your Lordships are experts in the field of law… not in the field of religion."
Mehta pointed to India's religious and cultural diversity and argued: "Something religious in Nagaland might be a superstition for me". He also pointed to Maharashtra's Black Magic Act.
To this Justice Ahsanuddin Amanullah said: "Mr Mehta, you made it too simplistic…"
"If witchcraft is considered part of religious practice, would you or would you not consider it superstition?" Justice Joymalya Bagchi asked, to which the Solicitor-General said, "I will."
"But then let us say the court is approached under Article 32," the judge continued, "… saying 'there is religious practice of witchcraft and legislature is silent', can't the court use principle of 'unoccupied field' to direct prohibition of such practices on grounds of public order, morality?"
"The court can," Mehta said, "on grounds of public order, morality, and health, but not because it is superstition", arguing the court would not normally, when examining a jurisprudential doctrine, take and test 'extreme examples'. "That is part of jurisprudential theory," he said.
"But that is what we do… we stretch it (any principle) to absurd limits and test it (i.e., to assess the logical import of any argument made)," Justice Bagchi responded.
Justice MM Sundresh then weighed in and said the federal goverment could not argue a complete embargo on the court's jurisdiction. "… to say it is to completely denude the court of jurisdiction… the issue is of void and voidable action and, if it is violative like sati, the court can intervene."
"I never argue that… because that argument always fails against the jurisdiction of the court," Mehta answered, "The court is always zealous to protect its jurisdiction… and rightly so."
Justice BV Nagarathna, also part of the bench, pointed out the court's approach must also be to determine 'essential' religious practices - which is what Sabarimala's ban on women aged 10-50 has been proclaimed - from the lens of the philosophy of that religion.
"You cannot apply some other religion and say it is not 'essential' practice… but, of course subject to public order and morality. This is about how the court examines this and not whether it has jurisdiction or not," she reasoned.
The Chief Justice acknowledged "we (i.e., the court) cannot replace ourselves with subject experts" but said, "If something like witchcraft, cannibalism, or human sacrifice is there, which shocks the conscience of the court, then, on the face of it, no further adjudicatory exercise may be required. We are only examining how far such a matter can fall within judicial review."
On Tuesday the government argued India has historically placed women on a "higher pedestal".
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The government has argued the Sabarimala restrictions are not necessarily rooted in gender discrimination but arise from specific religious beliefs and the nature of the deity.
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In written submissions, it said the restrictions are linked to the nature of Lord Ayyappa as an 'eternal celibate' and not on notions of impurity or inferiority. The government also argued that all religious practices could not be seen solely through the lens of individual dignity or bodily autonomy. "Every religious denomination's practices have to be respected," Mehta said.
