New Delhi: Backing the restriction on the entry of women of menstruating age into Kerala's Sabarimala temple, the Centre on Tuesday told the Supreme Court that the issue falls squarely within the domain of religious faith and denominational autonomy, and lies beyond the scope of judicial review, PTI reported.
Solicitor General Tushar Mehta, appearing for the Centre, told a nine-judge Constitution bench headed by Chief Justice Surya Kant that if there is something unscientific, the remedy is with the legislature.
"We have to respect every denomination's practice; not everything is related to dignity or bodily freedom. If I go to a mazar or a gurudwara and if I have to cover my head, I can't say my dignity, right or choice is taken away," Mehta told 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.
Mehta said if someone claims that human sacrifice is an essential religious practice and approaches the court under Article 32 of the Constitution, then the court need not examine whether it is religious or essential, and reject it on the ground that it directly violates public order, morality or health.
"It is submitted that the court should expressly decline a model of review that asks whether a practice is 'rational', 'modern', 'scientifically defensible', 'acceptable to judicial sensibilities', 'unpopular views' or based upon broad and subjective 'doctrines' of 'transformative constitutionalism' or 'constitutional morality'. Such an inquiry is not constitutional review; rather, it would be a substitution of judicial philosophy for religious self-understanding, depending upon the subjective view of the bench, which is not trained in interpreting religious texts ...
"The Constitution protects religious freedom precisely because the protected field contains convictions, rituals, disciplines, and forms of worship that may not satisfy secular standards of reason, utility or majoritarian taste," Mehta said.
The solicitor general submitted that the doctrine of "constitutional morality" is not precisely defined in the Constitution.