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NEW DELHI: A nine-judge Supreme Court bench led by CJI Surya Kant on Wednesday said that it would be difficult for the judiciary to bring in social reforms, and added that governments were better equipped to enact laws in response to genuine demands from people.

This remark came when senior advocate Gopal Subramanium told the bench of the CJI, Justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, A G Masih, P B Varale, R Mahadevan, and J Bagchi that a devotee’s personal faith and belief were non-justiciable and that even the government, in the name of social reform, could not impinge on the religious rights of a denomination or community.

“Social reforms and religious reforms come with people’s will and desire, to which the government responds (by bringing legislation). But it is very difficult for the court to act on such issues (social or religious reforms). Courts can adjudicate the validity of a social reform legislation by testing whether it intrudes into the faith or religious beliefs of devotees.”

The significant observation acknowledging the court’s limitations in playing social reformer came on the seventh day of the hearing on the fundamental rights versus faith issue.

The bench continued to express its reservations and doubts over the judicial oversight of religious issues. Justice Kumar asked, “Can the courts adjudicate a dispute over a religious practice between two groups within the same denomination or a temple? What could be the juridical basis for a constitutional court while entertaining a writ petition or a PIL to decide whether one type of religious practice is more desirable?” Justice Sundresh said it appeared that apart from three constitutionally specified grounds — public order, morality and health — there was no other ground, even the violation of fundamental rights, to restrict a person’s right to freedom of conscience and the right freely to profess, practise and propagate a religion.

Appearing for the general secretary of Sabarimala Karma Samiti, senior advocate C A Sundaram said the constitutional or legal views of the court were immaterial to the devotees’ conscientiously and genuinely held religious beliefs and practices to worship God, which is protected as a fundamental right under Article 25.

Faulting the 2018 judgment for wrongly applying the equality and non-discrimination test to the religious custom at Sabarimala Ayyappa temple, Sundaram said that the right to equality applied to government employment and could not be a tool to strike down a long-standing religious custom intrinsically connected to people’s belief and faith about the attributes of the deity.

Senior advocate Rakesh Dwivedi said the judiciary should adopt a hands-off approach towards religious matters.
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