The Supreme Court on Wednesday questioned the manner in which a group of reformists challenged the top court's 1962 ruling which upheld excommunication practices followed in the Dawoodi Bohra community [Kantaru Rejeevaru v. Indian Young Lawyers Association].
The Court said that the petition, filed under Article 32, seemed legally unsustainable since it was against an earlier ruling of the top court. Filing a review or curative petition would have been the proper remedy, the Court stated.
The Bench of Chief Justice of India (CJI) Surya Kant along with Justices BV Nagarathna, MM Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi was hearing the Sabarimala reference case.
The Court today recounted that on Tuesday, it had questioned why a PIL petition was filed a lawyers' body, Indian Young Lawyers Association's on the Sabarimala entry issue.
Justice Nagarathna added that the similar concerns arise with respect to an Article 32 petition filed by reformist Dawoodi Bohra members challenging excommunication practices within their community.
"Yesterday we were saying, why was that writ petition entertained on Sabarimala. Today we can't change our colour. Why should your writ petition also be entertained? We are the same nine people here. What came out of Sabarimala, we were saying yesterday. Today what we should say? Both are Article 32. We have to be consistent, we can't change our colours overnight."
"Why you people are so impulsive on this?" CJI Kant added.
"Argue on merits, but keep this in mind," Justice Nagarathna cautioned.
The hearing will continue tomorrow.
The reference case concerns seven larger legal questions on the scope of religious freedoms in India.
The matter is tied to the Supreme Court's 2018 verdict allowing women of all ages to enter the Sabarimala Temple in Kerala, overturning a custom restricting the entry of women of menstruating age to the hilltop shrine.
In November 2019, the Supreme Court pronounced its judgment on the review petitions against the 2018 verdict but did not decide the matter one way or the other. Rather, the Court framed seven larger questions touching on religious freedoms, which is now being heard by the nine-judge Bench.
Among the faith-based customs that the reference verdict could have an impact on are excommunication practices followed in the Parsi community and among Dawoodi Bohras.
Judicial indiscipline in entertaining plea challenging Places of Worship Act?
Senior Advocate Raju Ramachandran today appeared for the Central Board of Dawoodi Bohra Community, a group of reformists and a person whose father - activist Asghar Ali Engineer - was excommunicated from the community.
"Excommunication impinges on human dignity," Ramachandran contended.
Justice Nagarathna, however, took critical note of the fact that Ramachandran's clients had filed an Article 32 petition (filed to question violations of fundamental rights) to challenge the Supreme Court's ruling in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay (1962).
By this ruling, the top court had upheld excommunication practices followed by Dawoodi Bohras.
The Court noted that while a review petition or a curative petition could have been filed to challenge the Syedna judgment, a writ petition under Article 32 may have been inappropriate.
"Article 141 is there. It may be a right or wrong judgment, how do you get the judgment set aside? You file review. Now there is also curative (jurisdiction).. or a larger Bench can set it aside. But not through Article 32 petition. We are very apprehensive of it. Reformist mindset, all that is different. But the road taken, the means should be as good as the end," Justice Nagarathna said.
Ramachandran, in his reply, hinted that the Article 32 petition filed by his clients was more legally sustainable than some other petitions that the Court had "unfortunately" entertained in the recent past.
"Unlike some recent petitions, which have been entertained unfortunately in this Court ... With great respect, as a senior member of the Bar - (they) have been wrongly entertained by this Hon'ble Court, showing, milords, if I may say so, not just lack of judicial discipline, but lack of judicial Statesmanship. One day a Constitution Bench says 'Places of Worship Act is part of the basic structure of the Constitution.' Next day, a writ petition is filed, challenging the validity of the Places of Worship Act. Notice is issued, creating all kinds of tension, and this Court has to give an interim order saying further suits will be stayed. Those are instances which need great circumspection," Ramachandran said.
Ramachandran further assured the Court that the Article 32 petition was not lightly filed.
"When I come here, and let me assure milords, that this issue is going to be addressed - though it is not one of the questions framed for reference - this issue is going to be argued both before the five-judge Bench to which this matter will go back. But in any case, at the end of my submissions, I will squarely address this issue with reference to cases of this hon'ble Court which deal with this principle of when an Article 32 petition can be entertained, where a judgment of this Court is questioned ... This was not a lightly drafted petition," he said.
Justice Nagarathna said that she is not on the merits of the plea, but on whether good procedural practices were followed.
"My sister posed a very important question, that we will have to resolve," CJI Kant added.
"Yes, because today we are here. Tomorrow we (sitting judges after their retirement) are not here, but the Court is there. (Future) judges (will remain), the advocates are here and the Court should continue. That is our concern. The apex court of this (country) should continue," Justice Nagarathna said.
"That is the concern of all of us here," replied Ramachandran.
Courts should not interfere with genuine religious practices, but proof of genuineness must exist
The Court today also heard arguments against excommunication practices followed in the Parsi community. Senior Advocate Darius Khambata today continued his submissions for a woman who had been excommunicated for marrying a Hindu man.
He submitted that courts should step back and refrain from intervening with practices that are genuinely found to be part of a religion, and not get into whether such a practice is valid or rational. However, for that, there must be proof that such a religious practice is genuine.
He added that the excommunication of Parsi women who marry outside the community is not grounded in any genuine religious norm.
"There is nothing in the material they (Parsi Trust) produced which at all shows that there is anything in the religion which somehow prohibits, ostracises or excommunicates only a Parsi lady for inter-marrying. They have also relied certain texts, which also is wrong. If you read the actual text, of which they have given translations, if does not say what they have said in submissions. Their highest case is that intermarriage is frowned upon. But they don't meat the elephant in the room - how do you allow inter-marriage of mean and (include) their children?" he contended.
Senior Khambata was instructed by a team from Dua Associates comprising advocates Shiraz Patodia (senior solicitor at Dua Associates), Ashish Singh, Nina Nariman, Divya Sharma, Juhi Chawla, Mayank Singhal and Adityaraj Patodia.
Is a religious denomination's rights superior to its member's rights?
Senior Advocate Ravindra Shrivastava made submissions supporting Khambata's stance. He said that the rights of a religious group or a denomination under Article 26 cannot be superior to an individual's freedom of religion under Article 25.
The Bench, however, expressed reservations about such a view.
"Is it the other way around? When you say the freedom of the group cannot be larger - freedom of the group has to be larger. Freedom of individual is restricted to the individual. Group means, it can have that manifestation - organised, you have an institution, to create an institution and to manage its affairs ... The component (of the group) may be a person, but the moment a person forms an association.. it has its own unique (features)," observed Justice Amanullah.
"The question ultimately the Your Lordships will have to decide is this - whether by joining the denomination, whether the personal fundamental rights of persons are eliminated or taken away," Shrivastava said.
Justice Nagarathna weighed in by noting that a member of a religious group is seen as being one with the group. While so, she asked whether such a member could then challenge the group's religious practices.
"One way of looking at it is, Article 26 is a denominational fundamental right. There, the individual is subsumed within the denomination, and it is the denomination that has the fundamental right. Therefore, this question of whether a person belonging to that denomination can question a religious practice of that denomination may not, strictly speaking, be raised. Because if he belongs to that denomination, it follows that, he cannot raise a dispute." Justice Nagarathna said.
Shrivastava disagreed.
"My respectful submission is, that is not the way the Constitution can be read, that the person will merge into the denomination and lose his identity...To conceive a situation that a religious denomination is absolutely immunised from fundamental rights or that it may not respect (an individual's) fundamental rights is an extreme proposition. It is capable of grave, serious consequences. Every right, whether it is Article 25 or Article 26, has to be read through the core constitutional values," the senior lawyer said.
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