Khambata: I have set out that this is a trust that is for the benefit of the Zoroastrian community, and it has no prohibition of persons who intermarry with any other religion.
I have extracted two findings from the Gujarat High Court judgment. First, that there is no prohibition on women who are born Parsi Zoroastrian married to non-Parsi for continuing to profess and practice the Parsi religion. Second, there was no material shown to establish that entry of a non Parsi to an Agyari (fire temple) would violate integral part of Parsi religion. This remains untouched by further materials.
Khambata: I am a devotee, i have not forsaken my religion, i am a believer. Just because I have married, that is not a crime. But the Gujarat HC said that due to the marriage, even though it is under SMA, she is deemed to have converted. Please consider the ramifications of this.
Khambata: Today, every anti conversion law is based on conversion by inducement, allurement, force. All that will be wiped out if there is deemed conversion by the very act of marriage itself. It is a far-reaching judgment. It will not apply only to Parsi Zoroastrian ladies, it will apply across the board. With due respect to the Gujarat HC, the dignity of women is seriously undermined. This would violate every right under Articles 14, 15, 16, 21
Khambata: I represent a Parsi Zoroastrian woman who married a Hindu man under the Special Marriage Act. Her parents are residents of Gujarat. One day, she found that someone in her position was being denied entry to certain places of worship, including for the funeral rites of her parents. She filed a writ petition being concerned that the same thing might happen to her.
Senior Advocate Darius Khambata: We are all trying to solve an issue that applies to everyone in this country. It should be a collaboration and not a confrontation. This is a monumental task. I have several points where I agree with SG Gupta and my friend Subramanium.
Justice Nagarathna: public interest litigation has been private, paisa, and publicity interest.
Justice Nagarathna: Every day, my lord the Chief Justice receives hundreds of letters. Can all those be converted to PILs?
Gupta: Once a court takes cognisance of the PIL, then it becomes a court matter.
Justice BV Nagarathna: it is easy to get articles written just for the sake of filing PILs. We are very much aware. We are entertaining PILs for people who are in genuine need of it. Not for getting articles written in the newspaper.
CJI Kant: This is not even an article. It is a misconduct by an individual for which there are Penal provisions. The court's reaction should have been to ensure action is taken in accordance with the law. That is all.
Justice Sundresh: we have heard you graciously and we are not saying much more because we are sitting in a constitution bench but this is an abuse of the process of law.
CJI Kant: your best position would be for this to be a suo motu petition de jure filed by the Association.
Gupta: then CJI Dipak Misra made it very clear that even if you (Indian Young Lawyers' Association) seek to withdraw this petition, we will not allow you because it is a court matter now. I am assisting your lordship.
Justice Nagarathna: Mr Counsel, since you're referring to the learned former Chief Justice, with great respect, rather than ensuring there was security provided to the advocates, he could have ensured that there was no need for a security threat at all by not entertaining this petition. With great respect we are saying this.
Adv Gupta: The Hindu religion is very liberal. You cannot even define it. Whether you call it Sanatana or Hindu, you cannot define it by any expression. Or I can say that Hindu religion is the abstract of all religions. You come to and you will get solace. If you dont agree with the tenets of Islam or Christianity or any other religion, you come to me. Hindu religion is that liberal. It has very contrasting ideologies. It is getting rid of violence day by day. It is a way of life. There are no fixed rules. As my lordship said, I might not know much about lord Ayyappa but I do know it is a Hindu temple. That much I know.
CJI: Mr. Gupta please confine yourself to legal arguments. We will hear you as a historian on some other occasion.
Gupta: constitutional morality is the law of the land now.
Justice Karol when he was in Tripura, held that animal sacrifice was not an essential religious practice after the Sabarimala judgment.
Justice BV Nagarathna: This is quite serious. The ones who have faith in the deity will perform all that is needed. But someone who says will break all Niyam (rules) that cannot be encouraged by this court. We are not in superstition. People who did not have faith and belief in that deity, you are saying allow them to enter. You are not a true believer !
Adv: Religious institutions carry out several activities such as rituals and ceremonies. Without participation in them, one may not be able to fully practice religion. As has been noted in academic writings, religion has both a personal and an institutional aspect. While individuals may pray in their homes, throughout history people have also worshipped in temples, churches, mosques and similar institutions. In practice, personal religious life is inseparable from the institutional dimension.
A person may legitimately complain that their freedom of religion is denied if private worship is allowed but public worship is restricted. Articles 25 and 26 recognize these two aspects. The right to practice religion therefore includes the right to enter public religious institutions. This right is not confined to citizens but extends to all persons, irrespective of faith. It is my submission that a person can, as a matter of right, enter a place of worship of another faith, subject to complying with the rituals and practices followed there. The Constitution does not confine a person’s religious freedom only to their own religion.
Adv: If tomorrow I build a temple like the Khajuraho temple at my place, then others will object...
CJI: if you don't know anything about a temple.. please do not refer to all of them. Please don't waste our time. Just proceed and finish.
Adv: Justice Gajendragadkar had stated that since religion was age-old and if a belief is an age-old belief and then turns into dogma...these turn into superstitions due to the passage of time.
Adv: What are the essential characteristics of a religious denomination? Sabarimala is not to be raised here. Still it has been done.
This reference order has not been registered as a reference case as per Supreme Court rules: Adv
Justice Bagchi: if you go through the SC order..the power of CJI to make a reference was traced to Article 32 as per a Supreme Court decision since such a power is not subject to Supreme Court Rules.
Adv for India Young Lawyers Association: This particular reference was not maintainable. But there are other cases I would like to highlight.
CJI: You can come to page 33.
Adv: We have to bring to Your Lordships’ notice what judgments have already been passed, whether for review or not, so that the reference is not maintainable. Three judges are referring the matter. The speaking order does not refer this matter to a nine-judge bench. The speaking order says that the matter is referred to a seven-judge bench. That was the understanding given to our Honourable Bench as well.
In this context, the decision of the seven-judge bench of this Court in Commissioner, Hindu Religious Endowments, Madras versus Shirur Mutt, holding that what are essential religious practices of a particular religious denomination should be left to be determined by the denomination itself, and the subsequent view of the five-judge bench in Durgah Committee versus Syed Hussain Ali, carving out a role for the Court in this regard to exclude what the Court determines to be secular practices or superstitious beliefs, seemed to be in apparent conflict requiring consideration by a larger bench.
What did you file the PIL? What good has come out of it? Justice Nagarathna
Adv: I will address all of it.
Justice Kumar: Has your organisation passed a resolution to file a PIL? Has your president signed it?
Adv: there was a threat to the petitioner and police protection was given.
Justice Kumar: come to the point.
Adv: Justice Dipak Misra has not allowed it at all...there were objections..
CJI Kant: Please don't take judges names like this. He was a CJI. You can say the Supreme Court said this... And answer the simple question.
Adv: no there was no resolution
Justice Sundresh: This is nothing but an abuse of the process of law, that too before a nine-judge constitution bench. Go through the issues and finish. We don't want to embarrass you further.
Adv for Young Lawyers Association: There were four articles in the newspaper in the month of June 2006. Kindly see.
One was by Barkha Dutt. Then there was “Touching Feet and Attracting Touches a Deity and Causing an Uproar” by Sherwani Pandit. Then the third one was “Keeping the Same Losing Our Religion.” This was the third by Veer Saraswati. And the fourth one is very important, “The Sex Slump Felt Sabarimala.”
CJI: okay so it was based on press reports
Justice Nagarathna: How does a juristic body like yours have a belief? This is for an individual. You don't have a conscience
Justice Aravind Kumar: who is your president ?
Adv: Naushad Ali
Justice Nagarathna: How is he a believer? Justify how you clarify juristic point.
A nine-judge Constitution Bench of the Supreme Court is examining seven important legal questions concerning religious rights and freedoms in India. The top court began hearing the reference arising out of the Sabarimala review case on April 7.
The Court's verdict will have a major impact on various cases, including the case concerning whether women of menstruating ages can be allowed to enter the Sabarimala temple in Kerala.
The reference is connected to the top court's September 2018 verdict in which a 5-judge Constitution Bench, by a majority of 4:1, allowed women of all ages to enter the hilltop shrine in Kerala. That decision overturned the tradition that restricted the entry of women of menstruating age.
Dozens of review petitions were filed questioning the correctness of this ruling. In November 2019, the Supreme Court pronounced its judgment on the review petitions challenging the 2018 verdict. It held that larger issues pertaining to the Essential Religious Practices Test, interplay between Articles 25 and 26 on one hand and Article 14 on the other and the conflict between the judgments in the Shirur Mutt case and Durgah Committee case will have to be decided by a larger Bench. The nine-judge Bench is now considering the same.
The reference verdict may also have an impact on pending cases regarding the entry of Muslim Women in Dargahs /Mosques, excommunication of Parsi Women married to non-Parsis, the practice of female genital mutilation and excommunication practices in the Dawoodi Bohra community.
A Bench of Chief Justice of India (CJI) Surya Kant along with Justice BV Nagarathna, Justice MM Sundresh, Justice Ahsanuddin Amanullah, Justice Aravind Kumar, Justice Augustine George Masih, Justice Prasanna B Varale, Justice R Mahadevan and Justice Joymalya Bagchi is hearing the matter.
During the hearing on April 7, the Central government advocated for greater freedom in religious practices and asked whether courts are the appropriate forum to determine what constitutes an essential religious practice.
On April 8, the government argued that that the restriction at the Sabarimala temple was not based solely on gender.
On April 15, the Court observed that one of the most difficult tasks for a court is to declare the beliefs of millions of people as wrong or erroneous, and that a religion cannot be stripped of its essential practices in the name of social reform.
On April 17, the Court observed that while adjudicating matters of faith, a constitutional authority must rise above personal religious beliefs and be guided by freedom of conscience and the broader constitutional framework.
On April 21, the Court remarked that it is aware of the limits of judicial review in religious matters and that there was no need for extensive arguments against it.
On April 22, the Court asked whether the State can invoke the principle of constitutional morality and Directive Principles of State Policy to justify social reform laws on religious matters.
On April 23, the Bench briefly debated on whether pre-constitutional religious customs could be protected by Article 25(2) of the Constitution of India.
On April 28, the Court warned against making arguments that could project any one religion or Indian language as superior to others.
In the last hearing of the matter, the Court observed that genuine women devotees of Lord Ayyappa may wait till they cross the age of 50 years to visit the Sabarimala temple. The Court also said that it does not want to play any part in the annihilation of a religion while interpreting the scope of religious freedoms on India.
Track this page for live updates from the hearing today.