SC: Courts must be cautious in review of rituals

NEW DELHI: A nine-judge Supreme Court bench on Wednesday appeared to be on the same page with the govt on the narrow ambit of judicial review of religious practices and said constitutional courts should be extremely cautious in questioning a denomination’s collective religious beliefs.

This remark came from a bench of CJI Surya Kant and Justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, A G Masih, P B Varale, R Mahadevan and J Bagchi when solicitor general Tushar Mehta said there was a plurality of sects and sub-sects, with distinct religious practices and rituals, even though they were part of a denomination.

Every denomination, sect and sub-sect was entitled to practice its peculiar rituals and even if certain secular activities were intermingled with these religious practices, then in testing the validity of a law restricting the secular part of that religious activity, courts should lean towards protecting religious practices to maintain the identity of the denomination, sect or sub-sect, Mehta said.

Giving an illustration for his argument, the SG said, “The right to light a ‘diya’ undoubtedly is a matter of religion. However, if in a particular denomination, it is mandatory to light 100 diyas every day, the question would be whether there can be a restriction by the state limiting the quantity of ghee to be purchased per day. Though the purchase of ghee is a secular activity, it is intrinsically linked with something which is a matter of religion and, therefore, cannot be interfered with by the state.”

Justices Nagarathna and Sundresh said they were of the view that constitutional courts must not question the collective religious beliefs of followers of a denomination. Mehta said reforms through legislation by a state must be on the constitutional grounds — public order, morality and health.

Responding to rationalists’ stand advanced by senior advocate Sanjay Hegde that the right to freedom of conscience and right to freedom of religion permitted a person to “wake up a Hindu, have lunch as Muslim and go to sleep at night as a Christian”, Mehta said if any person gets such a thought, he “needs psychiatric treatment”.

The bench reserved its verdict on the reference relating to faith vs fundamental right tussle.