SC to Centre: Can non-devotees of Lord Ayyappa challenge Sabarimala temple customs?

The Supreme Court on Wednesday (April 8) asked the Centre how persons who are not devotees of Lord Ayyappa could challenge the customs of the Sabarimala temple in Kerala.

The court also observed that it has the right and jurisdiction to hold what is a superstitious practice in a religion on the second day of the hearing into the Sabarimala case. The hearing will continue tomorrow.

This came in response to the Centre's submission that a secular court cannot decide the issue as judges are experts in the field of law, not religion.

A nine-judge Bench headed by Chief Justice of India (CJI) Surya Kant is hearing on petitions related to discrimination against women at religious places in various religions and the proceedings assumed significance as they started ahead of crucial Assembly polls in Kerala, where the Sabarimala temple is located.

Also read: Sabarimala hearing: Untouchability comparison sparks sharpest debate

The Bench also comprises Justices BV Nagarathna, MM Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi.

Seven questions

The top court has framed seven questions on the scope of religious freedom. One of the questions was whether a person not belonging to a religious denomination or religious group can question a practice of that "religious denomination or religious group" by filing a public interest litigation (PIL).

As the Bench was about to rise for the day, Justice Nagarathna sought to know from Solicitor General Tushar Mehta, appearing for the Centre, as to who the petitioners were in the Sabarimala case.

"What follows from what you have just submitted is that the original petitioners are not devotees. No devotee has approached this court challenging this. Then, who are the writ petitioners who are assailing this?" she asked.

Mehta replied that the original petitioner is a lawyers' body called Indian Young Lawyers Association.

Also read: Thomas Isaac interview: Why CPI(M) changed Sabarimala stance amid BJP blitzkrieg

Justice Nagarathna said, "They are not devotees. But let us be clear. Can any devotee of Lord Ayyappa file a writ petition challenging this? If a non-devotee, a person who is not concerned with that temple, challenges it, can this court entertain such a writ petition? 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) of the Code of Civil Procedure. No cause of action, no causal connection, the plaint would be rejected."

The CJI said he has often used the term invisible victims of the judicial system for such petitioners.

What CJI said

Mehta termed it a fight between the silent majority and the vocal minority.

"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. By e-filing, even a letter can reach the court.

"Now, nobody needs representation through another for an unrepresented class. 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," Mehta said.

Also read: Take a stand on Sabarimala women entry issue, Congress dares Pinarayi Vijayan

The CJI said courts themselves have been 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 CJI said.

What Centre said

Earlier, Mehta asked how the court decides what a superstitious practice is.

"Even assuming that there is a superstitious practice," he said, "It is not for the court to determine that it is superstition. Under Article 25(2)(b) of the Constitution, 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 and laws, for the prevention of black magic and other such practices," Mehta told the Bench.

Responding to Mehta's submission, Justice Amanullah said the statement is too simplistic, as the court has the right and the jurisdiction to hold whether something is superstitious.

"What will follow is for the legislature to deal with. But, in court, you cannot say that whatever the legislature decides is the last word. That cannot be," he said.

Mehta said a secular court cannot decide that a religious practice is mere superstition, because the court may not possess such scholarly competence.

"Your Lordships are experts in the field of law, not religion," he said.

Judicial review

The solicitor general argued, "Something religious for Nagaland may be a superstition for me. We are in a greatly diverse society. Maharashtra has Black Act. They may say this is the practice prevalent in our area and that's why we protect it under Article 25(2)(b)," Mehta said.

Justice Bagchi asked if witchcraft was part of religious practice, would it not be considered superstition? "Your argument is that it is for the legislature to take up and prohibit any practice that promotes it (witchcraft). Let us say the court is approached under Article 32 of the Constitution, saying that a religious practice of witchcraft exists, and the legislature is silent. Can the court not use the 'doctrine of unoccupied field' to give directions to prohibit such a practice, keeping in mind ... health, morality and public order?" Justice Bagchi asked Mehta.

The solicitor general replied that judicial review can be done because it falls under 'health, morality and public order', and not because it is superstition.

Justice Nagarathna opined that in determining what an essential religious practice is, the court should view it through the lens of the philosophy of that particular religion.

"You cannot apply (the views of) some other religion and say this is not essential religious practice. The approach of the court is to apply the philosophy of that religion, subject to health, morality and public order," Justice Nagarathna said.

2018 verdict

On Tuesday, the Centre vehemently contended before the Supreme Court that the issue of restriction on the entry of women aged between 10 and 50 years at the Sabarimala temple falls within the domain of religious faith as well as denominational autonomy and is beyond the scope of judicial review.

In September 2018, a five-judge Constitution Bench, by a 4:1 majority verdict, had lifted the ban that prevented women between the ages of 10 and 50 from entering the Sabarimala Ayyappa temple and held that the centuries-old Hindu religious practice was illegal and unconstitutional.

On November 14, 2019, another five-judge bench headed by the then CJI Ranjan Gogoi, by a majority of 3:2, referred the issue of discrimination against women at various places of worship to a larger bench.

The Bench had then framed broad issues on freedom across religions, saying they cannot be decided without any facts of the particular case.

(With agency inputs)