SC: Majoritarianism cannot trump constitutionalism
New Delhi, May 14 -- The Supreme Court on Wednesday underlined that while India is undoubtedly a democracy governed by majority rule, majoritarianism cannot override constitutionalism, with a nine-judge bench hearing the long-pending Sabarimala reference case asserting courts are duty-bound to test all decisions against constitutional principles.
"It is not majoritarianism which the court is bothered about. The court is essentially bothered about majoritarianism trumping constitutionalism and that is the 'lakshman rekha'. We are committed to a democracy which is definitely a test of numbers, but we are also a constitutional democracy. So even if a majority feels that particular thing is to be done, the courts have that role to test that decision from the constitutional principles," observed the bench during the hearing.
The remarks from Justice Bagchi came amid an extended debate before the nine-judge constitution bench headed by Chief Justice of India Surya Kant, which is examining broad constitutional questions on religious freedom arising from the Supreme Court's 2018 judgment allowing entry of women of all age groups into the Sabarimala Temple.
Apart from the CJI and Justice Bagchi, the bench comprises justices BV Nagarathna, MM Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale and R Mahadevan.
The exchange began after solicitor general Tushar Mehta, representing the Union government, argued that courts ought to exercise restraint in matters involving religion and ordinarily leave reforms to the legislature.
Justice Amanullah immediately expressed reservations about the proposition. "That means sheerly because of majoritarianism.we should not?" he asked.
Mehta objected to the use of the term "majoritarianism", saying: "I am sorry. It is democracy. Democracy means majority."
At this stage, Justice Bagchi clarified that the concern of constitutional courts was not majority rule per se, but situations where constitutional guarantees may be subordinated to numerical strength.
CJI Kant, however, observed that the debate over majority and minority rights was somewhat misplaced in the context of Article 25 of the Constitution, which guarantees freedom of religion.
"The question of religious practice has nothing to do with majoritarian principle or minority principle. Minorities can have their own religious practices, the majorities can have their own rights. All are protected under Article 25," the CJI remarked....
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