Supreme Court pushes back against Centre's 'faith' argument: ‘Can’t be completely denuded'

The Centre had earlier argued that the domain of religious faith and denominational autonomy and lies beyond the scope of judicial review.

The Supreme Court on Wednesday pushed back against the Union government’s argument that courts cannot sit in judgment over religious practices by branding them as superstitious or irrational, reminding the Centre that even religious freedoms under the Constitution are subject to public order, morality, health and other fundamental rights.

CJI Surya Kant observed that if something shocks the conscience of the court…on the face of it, no further adjudicatory exercise may be required. (ANI)

On the second day of the hearing of the Sabarimala reference, a nine-judge bench led by CJI Surya Kant emphasised that while courts may exercise restraint in matters of faith, they cannot be “completely denuded” of jurisdiction where a practice is found to be egregiously violative of constitutional guarantees.

“If something shocks the conscience of the court…on the face of it, no further adjudicatory exercise may be required. The court will simply say it is contrary to public order, morality or health,” observed the CJI, responding to submissions by solicitor general Tushar Mehta. The bench also includes justices BV Nagarathna, MM Sundresh, Ahsanuddin Amanullah, Aravind Kumar, AG Masih, R Mahadevan, Prasanna B Varale and Joymalya Bagchi.

The exchange marked a continuation of the court’s probing scrutiny of the Centre’s central argument that secular courts lack the institutional competence to determine whether a religious practice is superstition and that such reform must be left to the legislature. Mehta argued that judges, as experts in law and not religion, should refrain from classifying practices as irrational or non-essential, warning that such an exercise would amount to judicial overreach into matters of faith.

The bench, however, was unconvinced by the sweeping nature of this submission.

Justice Amanullah termed the argument “too simplistic”, asserting that courts retain the authority to examine whether a practice bears the colour of superstition, even if the manner of reform may ultimately lie with the legislature.

Justice Sundresh added that adopting a “hands-off approach” in all such cases would effectively strip courts of their constitutional role, particularly where a practice is so manifestly violative, drawing a parallel with practices like sati, he said. On his part, justice Bagchi tested the limits of the Centre’s argument through hypotheticals, asking whether courts would remain powerless if practices such as witchcraft were claimed as part of religion in the absence of legislative intervention.

While Mehta maintained that such cases could be addressed under the grounds of public order and morality, rather than by labelling them as superstition, the bench repeatedly indicated that judicial review cannot be so narrowly confined.

Justice Nagarathna, meanwhile, emphasised that courts, while examining essential religious practices, must do so from within the philosophical framework of the religion itself, but always subject to constitutional limitations. “That does not take away the jurisdiction of the court in an appropriate case,” she noted, underscoring the balance between deference to faith and constitutional scrutiny.

The hearing also saw a broader debate on the meaning of “morality” under Articles 25 and 26, with the Centre arguing that it should be understood as “societal morality” rather than “constitutional morality”-- a concept it described as vague and indeterminate.

The bench appeared divided on this, with justice Bagchi observing that constitutional morality governs secular life, while religious practices may be informed by the internal morality of a denomination, raising the question of how the two can be reconciled in a constitutional democracy.

In an aside, the CJI also questioned the reliance on academic writings in constitutional adjudication, particularly in the 2018 Joseph Shine judgment that struck down the offence of adultery, remarking that such viewpoints are ultimately “subjective”.

At the same time, the bench clarified that the validity of Joseph Shine itself is not directly under challenge in the present proceedings, even as the Centre has urged the court to declare its reasoning as not good law.

The bench, which will continue hearing the case on Thursday, is tasked with answering questions arising from the 2019 reference, including scope of judicial review over religious practices, the contours of the essential religious practices doctrine, and meaning of constitutional morality.