Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench [Day 2]
J Bagchi: then your argument thereof would be that it is upto the legislature to prohibit witchcraft and regulate any practice which promotes it.
let us say, the court is approached under article 32/226 since there is religious practice on witchcraft and legislature is silent, can't the court use the principles of unoccupied will to give directions for prohibiting such practices and not going in ERP but the beckons of prohibition like health, public order or morality
Mehta: it would fall within public order or morality and not superstition
J Amanullah: after the law is passed, it is justiciable. we are not totally out and legislature has the last say
J Bagchi: if witchcraft is considered as a part of religious practice, would you or would you not describe it as superstitious
Mehta: I will
Mehta: secular court can't decide a religious practice as mere superstition because you don't have scholarly competence. Something which is religious for Nagaland may be completely superstitious for me. we are a very pluratistic society with variety of people, religion and belief system. it would be very hazardous for court to say.
J Amanullah: after the law is passed, it is justiciable. we are not totally out and legislature has the last say
J Bagchi: if witchcraft is considered as a part of religious practice, would you or would you not describe it as superstitious
Mehta: I will
Mehta: secular court can't decide a religious practice as mere superstition because you don't have scholarly competence. Something which is religious for Nagaland may be completely superstitious for me. we are a very pluratistic society with variety of people, religion and belief system. it would be very hazardous for court to say.
J Amanullah: mr mehta, you made it too simplistic. the court has the right and jurisdiction in judicial review to hold what is superstition, what will follow is for the legislature to deal with it.
but then, you can't say whatever is the last word that legislature decide
Mehta: what is really objectionally is-how does court decide what is superstitious practice?
let's say there is, the answer is not for the court to decide, it is under article 25(2)(b) for the legislature to decide. i have list for instance prevention of blackmagic act etc
J Sundresh: Mr solicitor, their understanding is on the touchstone of article 25(2)(a). What they say is, religious practice is different from religious belief. What they are saying is reiterating article 25(2)(a)
CJI: one is expression is essential which doesnt find mention in article 25 itself, that has been borrowed as a pre-condition to religious practice. religious practice has been made as essential religious practice
Mehta: that became integral or essential religious practice- "otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art. 26. Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself.Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other."- a secular court would sit in judicial review over faith and belief system and decide whether particular belief is essential and for which the court will have to necessarily examine scripture and several other scriputes in case of internal plurarism and come to a religious conclusion
Mehta: it challenged the act of the state government whereby it had taken over the administration. In this judgment of Gajendragadkar J-"Whilst we are dealing with this point it may not be out of place incidentally to strike a note of caution and Observe that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part"- this test was never laid down in the 3 judgments. What they had said that it should be internally religious or integral