Senior Advocate Raju Ramachandran: We are a civilization under a Constitution, and therefore nothing which goes against the grain of our Constitution can be countenanced in a civilized society governed by the Constitution.

And it requires judicial statesmanship. That is where the task of the courts, the very difficult task of the courts, comes in. The courts cannot throw up their hands and say that otherwise there will be too many petitions. No. It is then the duty and responsibility of the Court to determine whether there is a clear violation of fundamental rights warranting constitutional protection, or whether it is merely a difference between members of a religion which does not rise to that level.

Ultimately, that depends upon the wisdom and statesmanship of this Court. But this does not mean that there can be a judicial hands off approach. In my humble and respectful submission, that position cannot be accepted.

Justice BV Nagarathna: What is unique about India as compared to any other region? See, we are a civilization. Why are we a civilization despite having so many pluralities and diversities? I said diversity is our strength. We continue to remain a civilization.

You may call us a sovereign democratic republic, but there is still a constant. One of the constants in Indian society is the relationship of human beings, man, woman or child, with religion. It is deeply intimate to everybody.

Now, when a religious practice or a matter of religion is questioned, where it is questioned, why it is questioned, whether it can be questioned, whether the questioning has to come from within the denomination itself for reform, or whether the State has to do it, or whether you want the Court to adjudicate upon all these aspects, these are the things troubling us. See, what we lay down as a nine judge Bench is for a civilization. That civilization is India. India has progressed despite all its developments, economy and everything else. There is still a constant within us. We cannot break that constant. That is what is troubling us.

Justice BV Nagarathna: Once everyone starts questioning certain religious practices or matters of religion before a constitutional court, then what happens to this civilization, where religion is so intimately connected with Indian society? There will be hundreds of petitions questioning this right, that right, closure of the temple, right? We are very, very conscious of this.

Justice Nagarathna: The question is whether the act of excommunication is a secular act or a religious act.

Senior Advocate Ramachandran: If Your Lordships are asking about the nature of the act, my answer is this...

SC: Please answer the question directly. Is it a secular act?

Senior Advocate Ramachandran: It can be a religious act associated with a religious practice.

SC: Or is it itself a religious act? Answer that.

Justice Amanullah: Can one examine whether the basis of excommunication is secular or religious. The moment excommunication is founded on a secular aspect, then perhaps a challenge may lie. But if it is founded on a religious aspect, then tentatively Article 26(b) may come into play.

Senior Advocate Ramachandran: I understand the anxiety behind the question. But then the further question would arise, even assuming it is religious, to what extent and with what consequences can excommunication operate.

Justice Amanullah: Now, you have formulated it in a manner where, even if the issue concerns religion, you then bring in proportionality. Is that not itself difficult to reconcile with Article 26 and denominational autonomy?

The argument on the other side would be that the moment there is even the slightest religious element involved, even a small religious component, then the matter must be left entirely to the denomination to govern itself.

Because otherwise, who decides proportionality? If there is even a slight tinge of religion in the practice, then according to that argument, it must be completely within the denomination’s own discretion.

If the Court starts importing proportionality into that exercise, then the very protection under Article 26 may become diluted.

Now, you may have a point when you say that certain consequences of excommunication can be segregated and examined separately. But once you say that even though a practice has a religious flavour, the Court can still examine its proportionality, then at least tentatively you will have to satisfy us on that proposition.

Justice BV Nagarathna: A group of individuals from your community may come before the Court and say, please restore excommunication. They may contend that it is part of their religion and that their religious rights are violated. Now, what should this Court do in such a situation? Can this Court continue deciding such issues every time different groups within a religion approach it with competing claims?

Senior Advocate Ramachandran: There is no suddenness in this, with the utmost respect. There is no suddenness at all. Generations of persons have suffered excommunication and humiliation. They have suffered indignity and died with it. It takes courage to approach the Court. These practices continue. There is exclusion, there is social ostracism. It amounts almost to a civil death for a person. I cannot be told, in a matter involving Article 21 and fundamental rights, that this is merely a procedural issue. This is not CPC. This concerns Article 21. There can be no waiver of Article 21. There are families who have suffered indignity. And now we are told that this is effectively a one party review. I could not file a curative petition because the curative jurisdiction itself did not exist at that point of time. This writ petition has remained before this Hon’ble Court for forty years, has gone through the entire process, and has now reached this Bench. Thereafter, a five judge Bench itself says that common questions arise and asks us to assist the nine judge Bench. And yet, repeatedly, I am required to come back and explain why we are here. That is the last aspect of my submission. I repeat again.

Justice BV Nagarathna: No, the Article 32 petition was filed by the Syedna to say that his Article 25(1) and Article 26(3) rights were violated vis a vis the State law. The State law came under Article 25(2). The Act was brought for the protection of certain rights of a particular community. That community was a direct stakeholder and was not impleaded. If the manner in which the provision was interpreted is questionable, that is a different issue.

CJI Kant: Therefore, let us concentrate on the question of law here.

Senior Advocate Ramachandran: All that I am saying today is that when Your Lordships are dealing with this interplay between Articles 25 and 26, it is not merely about temple worship. If Mr. Khambata had not mentioned the issue of a Parsi woman’s deemed conversion, or if Mr. Siddharth Luthra were not to mention female genital mutilation, then Your Lordships would be deciding these questions in a purely academic manner, which ought not to happen. Therefore, it becomes necessary to indicate the factual situations in which these questions arise. One cannot fully understand the scope of Articles 25 and 26 in the abstract, without some factual background.

CJI Kant: You are placing these facts only for that purpose. You are not asking us to adjudicate these individual instances.

Senior Advocate Ramachandran: Not at all. Those issues are not before the nine-judge Bench. There are several other issues also which are not before the Bench, and I will come to them later.

CJI Kant: We are not dwelling much on these individual controversies. Whatever material was available has been placed before us. It is only illustrative.

Senior Advocate Ramachandran: Excommuincation led to break of Marriage, loss of employment, complete social ostracism, and most importantly, if a person is excommunicated, they can neither go to the mosque nor be buried in the community graveyard. Therefore, an individual’s Article 25(1) right is effectively taken away. The only reason for giving this instance is as part of my submission

Justice Nagarathna: Is excommunication still on?

Ramachandran: Yes.

Senior Advocate Raju Ramachandran on the excommunication: Dawoodi Bohra case

A 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. 

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. 

A nine-judge Bench comprising 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 is hearing the matter.

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.

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. 

On April 29, 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.

On May 5, the Bench posed tough questions on why a 2006 PIL on the Sabarimala temple entry issue was filed or entertained by the Court at all. The Court observed that the practice of excommunicating Parsi women who marry outside their community appeared to be discriminatory.

Yesterday, the Court began hearing arguments against excommunication practices in the Dawoodi Bohra community.

Live updates from the hearing today feature on this page.