Every religion will break if courts readily entertain challenges to religious practices: Supreme Court

The Supreme Court on Thursday observed that courts interfering in matters of religion and religious practices could effectively break religions and hence, it should be cautious when dealing with such cases [Kantaru Rejeevaru v. Indian Young Lawyers Association].

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 said that if it interferes in one such matter, it could lead to multiple such cases or challenges connected to religion.

The Court made the observation while hearing the Sabarimala reference case in which various larger legal questions connected to religion and power of courts to interfere in religious matters are under consideration.

"If everybody will start questioning certain religious practices or matters of religion before a Constitutional Court, then what happens to this civilisation where religion is so intimately connected with Indian society. There will be hundreds of petitions questioning this right, that right, opening of temple, closure of the temple... we are very, very conscious of this," Justice Nagarathna said.

Justice Sundresh added that if such cases are entertained, then everyone can question everything.

"Every religion will break, every Constitutional court will have to be closed," the judge remarked.

Justice Nagarathna remarked that India is a civilization with many pluralities and diversities, even as it is a sovereign democratic republic. She further said religion is intimate to everyone in India.

"This is troubling us. We, nine judges, what we lay down is for a civilisation, that is India. India must progress. Despite all its development, economy, everything, there is a constant in us, we can't break that constant. That is what is troubling us," the judge added.

The Court made the observations while hearing submissions by Senior Advocate Raju Ramachandran against the practice of excommunication in the Dawoodi Bohra community.

Ramachandran said the Court can intervene when excommunication results in civil death or a clear violation of fundamental rights. The Court cannot throw up its hands only because there may be too many petitions, he added.

"We are a civilisation 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," he said.

The matter before the Constitution Bench 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.

Arguments today

Senior Advocate Raju Ramachandran 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.

Ramachandran said the excommunication was still in operation. He added the Court must take such factual instances into consideration while interpreting individual religious rights and that of a denomination.

"Excommunication led to the 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," he added.

However, Justice Nagarathna questioned whether the Court can decide competing claims of followers of one religion or community.

"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?" the judge said.

Justice Amanullah added that the other side may argue that the matter must be left entirely to the denomination 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," he added.

Continuing with his submissions, Ramachandran addressed the Court on the concept of constitutional morality. He argued that the existence of a core set of constitutional values cannot be denied.

"After the Sabarimala judgment, constitutional morality was often described in incredulous terms, almost as though it were some alien concept being thrust upon society. But to ask today what constitutional morality means is like asking what the basic structure doctrine means. If there is a basic structure, then equally there exists a core of constitutional values which together form the constitutional ethos. If the word “morality” is objectionable, then do not use it. Use another expression," he said.

However, Justice Bagchi remarked that constitutional morality cannot be a touchstone to test the constitutional validity either of a legislation or of a religious practice.

"Therefore, reading the expression 'constitutional morality' into morality under Article 26 may not be the correct way of construing the provision," the judge said.

Senior Advocate Siddharth Luthra, representing an intervenor, submitted that if an individual of a denomination is excluded on the ground that they do not conform to a particular line, the denomination itself may become an empty shell.

"Therefore, the denomination must also remain cognisant of, and sensitive to, the beliefs and rights of the individuals who constitute it," he said.

Luthra made submissions about the practice of female genital mutilation (FGM), particularly in the Dawoodi Bohra community, stating that it affects a series of rights and violates various penal laws.

"This is done at the age of seven. It is mutilation of a vital organ of the female body, and it directly impacts physical health, reproductive health and emotional health," he said.

The Court asked whether non-adherence to this practice leads to excommunication. In response, Luthra said:

"Today, before Your Lordships, we have only a few litigants willing to speak openly about these experiences, including persons who have suffered excommunication. The difficulty is that many such practices continue behind closed doors. The issue is not merely bodily injury. It causes pain, suffering and long-term impact."

Luthra added that 59 countries have banned the practice and in some countries, courts have also intervened to prohibit it.

"But there is no specific prohibition in India," he said.

Luhtra's submissions were disputed by Advocate Nizam Pasha, who said non-adherence to this practice does not lead to excommunication. He also compared it to circumcision.

"The description is disputed. It is not mutilation. It is described within the community as a symbolic circumcision. The procedure referred to is known in the West as hoodectomy, involving the prepuce of the clitoris."

However, Justice Bagchi said,

"Circumcision of the penis cannot be equated with genital cutting involving the clitoris."

In response to a query from Court, Pasha said the object of FMG was not suppression of sexuality.

"According to the belief, the opening of the tissue around the prepuce of the clitoris is considered to increase sexual pleasure for women. There is also a practice known as hoodectomy in parts of the Western world. I am only placing before," he said.

However, Justice Amanullah remarked that it was the exact opposite. The judge also objected to FMG's comparison with circumcision.

"What are you talking! Get your facts clear. It is just the opposite."

Justice Amanullah also observed that if FGM is mandatory in any community, the Court will have to test whether it is justified.

Senior Advocate Jaideep Gupta, representing the State of Kerala, said that the interplay of Articles 25 and 26 has been debated and developed in the court for over 75 years.

"The accumulated constitutional wisdom of those 75 years ought to be carefully examined before any departure is made," he said.

Gupta argued that if the issue arises whether something constitutes an essential religious practice, the Court adjudicates it on the basis of evidence from members of the religion itself.

"The Court does not substitute its own theological opinion. Please do not view this on the same footing as judicial review invalidating a religious practice. If a practice violates equality and Your Lordships strike it down, then the Court may be overriding a religious claim. But this exercise is different," he said.

Justice Nagarathna asked whether the exercise resembles proof of custom and usage. In response, Gupta said:

"Quite right. It is similar to proof of custom and usage, which courts undertake regularly. The inquiry is whether a particular practice is regarded as essential within that religion."

He further said that the doctrine of essential religious practice was different from the exercise of distinguishing between secular activity and religious practice.

Gupta further said if two religious claims come into conflict under Article 25(1), then some principle of resolution becomes necessary. The Court asked in what manner the Court can intervene

"But the mechanism you are suggesting, where do you locate it within Article 25(1)? You are asking us to resolve a dispute raised by a member of a religious denomination against the denomination itself on the basis of Article 25(1). How and where do you derive that from?"

Arguments in the matter will continue next week.

[Live Coverage]