Questioning every religious practice in courts will 'break' religion, civilisation: SC

The Kerala government, which has taken contradictory stand on the issue of entry of women into Sabarimala temple, submitted that nobodys right is superior and if the issue arises on what constitutes an essential religious practice, the court adjudicates it on the basis of evidence from members of the religion itself but does not substitute its own theological opinion.

The Supreme Court on Thursday observed that if individuals start questioning every religious practice or matters of religion before a constitutional court, then there will be hundreds of petitions and every religion will ''break'' due to this. The Kerala government, which has taken contradictory stand on the issue of entry of women into Sabarimala temple, submitted that nobody's right is superior and if the issue arises on what constitutes an essential religious practice, the court adjudicates it on the basis of evidence from members of the religion itself but does not substitute its own theological opinion. A nine-judge constitution bench headed by Chief Justice Surya Kant made the remarks on breaking of religion while hearing petitions related to discrimination against women at religious places, including the Sabarimala temple in Kerala, and on the ambit and scope of the religious freedom practised by multiple faiths, including Dawoodi Bohras. The bench also comprising justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi was told by senior advocate Jaideep Gupta, appearing for the Kerala government, that the accumulated constitutional wisdom of 75 years ought to be carefully examined before any departure is made. At the outset, senior advocate Raju Ramachandran, representing a group of reformist Dawoodi Bohras challenging a 1962 verdict that held practice of excommunicating by the head of the community as legal, submitted that a practice which is conducted in response to secular and social actions of an individual cannot be the subject of constitutional protection under Article 25 and consequently cannot be a 'matter of religion' under Article 26. He told the bench on the thirteenth day of hearing of the matter that a practice which may have a religious aspect but also significantly and adversely impacts fundamental rights is not immune to restriction under Article 25 or Article 26 of the Constitution. Responding to the submission, Justice Nagarathna said if everybody starts questioning the religious practices or matters of religion before a constitutional court, then ''what happens to this civilisation where religion is so intimately connected with the Indian society''. ''There will be hundreds of petitions questioning this right and that right, opening of the temple, and the closure of the temple. We are conscious of this,'' she said. Adding to the view, Justice Sundresh said, ''Every religion will break and every constitutional court will have to be closed.'' ''If the dispute between two entities is allowed then everybody will question everything. In your case there may be a civil wrong committed to you but in another case, another member will say I don't agree. It is regressive. To what extent can we go in a country like ours which is progressive and on the move is the question,'' he said. Justice Nagarathna went on that what sets India apart from any other region is that ''we are a civilisation'' despite having so many pluralities and diversities? Asserting that diversity is the country's strength, she added, ''One of the constants in our Indian society is the relationship of human beings -- man, woman and child -- with religion.'' ''Now, how a religious practice or a matter of religion is questioned, where it is questioned, whether it can be questioned, whether it has to be a question within a denomination for a reform or whether the state will have to do or you want the court to adjudicate upon all these aspects. This is troubling us. ''What we lay down is for a civilisation, that is India. India must progress despite all its economy, everything there is constant in us. We can't break that constant. That is what is troubling us ,'' she said. Ramachandran replied that India is a civilisation under the Constitution and therefore nothing which goes against the grain of constitution can be continued in a civilised society. He said that's where the court's task comes in and ''it can't throw hands'' and says that there will be so many petitions. Senior advocate for Kerala Jaideep Gupta submitted that though a new government is being formed in the state, he has instructions to argue the matter without going into the Sabarimala issue directly. He said the first and most important thing to the issue is an individual because what has to be protected is an individual and it may be through an institution. In other words if the individual doesn't have a right, the institution will not, he submitted. Gupta said under the Constitution, nobody's right is higher than the other's right as at the time of framing of constitution, many contended that for caste reasons, their rights were superior but the framers felt all should be equally entitled. Justice Bagchi said the Constitution scheme says nobody's conscience is higher than others. Gupta argued that if the issue arises whether something constitutes an essential religious practice, the court adjudicates it on the basis of evidence from members of the religion itself. ''The court does not substitute its own theological opinion. Please don't view this issue on the same footing as judicial review invalidating a religious practice. If a practice violates equality and is struck down, then the court may be overriding a religious claim. But this exercise is different,'' he said. The hearing remained inconclusive and would continue next week.