The Supreme Court on Wednesday said it can decide whether a religious practice is superstitious, only to be told by the Centre that secular courts which go by the Constitution don’t have the “scholarly competence” for it and should rather leave it to the legislature.“We understand the purpose of the legislature under Article 25(2)(b) (power of the state to regulate secular activities connected to religion), but that doesn’t take away the residual jurisdiction of the court in an appropriate case,” Justice Joymalya Bagchi, who was part of a 9-judge bench examining constitutional questions arising out of petitions seeking review of the September 28, 2018, judgment striking down age restrictions on entry of women into the Sabarimala temple, said. The bench presided by CJI Surya Kant also comprises Justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale and R Mahadevan.Justice Amanullah said, “You made it too simplistic … the court has the right and jurisdiction in judicial review to hold what is superstition, and what will follow is for the legislature how to deal with it. But then to the Court you cannot say that whatever is the last word, the legislature decides.” Solicitor General Tushar Mehta appearing for the Centre said, “Suppose there is a superstitious practice, the answer is not for the Court to decide. It is under Article 25(2)(b) for the Legislature to say, no we will reform it … it is not within the judicial review for the Court to say this is superstition.”The SG said, “a secular court can’t decide a religious practice as mere superstition because you don’t have scholarly competence. My lords are scholars in the field of law, not in the field of religion….” He added that “something which may be religious for Nagaland may be completely superstitious for me. We are a very pluralistic society with a variety of people, religions, and belief systems, and it would be very hazardous for the court to” intervene.Justice Bagchi asked “if witchcraft is considered as a part of religious practice, would you or would you not describe it as superstitious?” Mehta said courts can intervene in cases where practices such as human sacrifice, cannibalism or witchcraft shock its conscience. The bench also questioned the locus standi of the petitioners in the Sabarimala case, wondering how those who had nothing to do with the temple could have challenged its customs. “The original writ petitioners, if we have understood it correctly, are not devotees. No devotee has challenged this. Then who is the writ petitioner who is assailing this?,” asked Justice Nagarathna.Mehta pointed out that it was on a PIL by Indian Young Lawyers Association that the case began in 2006. The SG said this was precisely one of the seven questions being examined by the bench.Justice Nagarathna said “then that question should be addressed first”.Story continues below this adCJI Kant pointed out that the 5-judge bench (in Sabarimala) had taken the view following the general principles of PIL that if there is an element of a public interest in an issue, the court can examine. Justice Nagarathna said that if a suit had been filed by such an association, then it would have been dismissed for no cause of action.Senior Advocate Indira Jaising appearing for the Association said, “We are today 20 years down the line. Now if you want to dismiss, we are ready to pack our bags and go home. Then the reference must be discharged … Either we address you or we don’t on the merits. If your lordships feel there is no need for an address on merit, kindly discharge the reference. We will deal with the situation as and when it arises in each individual case.”Finally, the court decided to continue the hearing with the CJI saying, “Today we have crossed that bridge. The questions which have been formulated, and 5-6 of those questions which have been addressed partly … These questions will have a direct impact on the review. Therefore, it is in all fairness that we hear all of you.”The hearing will continue on Thursday.Ananthakrishnan G. is a Senior Assistant Editor with The Indian Express. He has been in the field for over 23 years, kicking off his journalism career as a freelancer in the late nineties with bylines in The Hindu. A graduate in law, he practised in the District judiciary in Kerala for about two years before switching to journalism. His first permanent assignment was with The Press Trust of India in Delhi where he was assigned to cover the lower courts and various commissions of inquiry. He reported from the Delhi High Court and the Supreme Court of India during his first stint with The Indian Express in 2005-2006. Currently, in his second stint with The Indian Express, he reports from the Supreme Court and writes on topics related to law and the administration of justice. Legal reporting is his forte though he has extensive experience in political and community reporting too, having spent a decade as Kerala state correspondent, The Times of India and The Telegraph. He is a stickler for facts and has several impactful stories to his credit. ... Read More © The Indian Express Pvt LtdTags:supreme court