The Supreme Court on Tuesday orally observed that the practice of excommunicating Parsi Zoroastrian women for entering interfaith marriages is discriminatory [Kantaru Rejeevaru v. Indian Young Lawyers Association]..A 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 case concerns seven larger legal questions on the scope of religious freedoms in India. .During today's hearing, Senior Advocate Darius Khambata made submissions on behalf of a Parsi Zoroastrian woman who married a Hindu man and faced exclusion from the Parsi community due to her interfaith marriage."I am a devotee, I have not forsaken my religion, I am a believer. Just because I have married (I have faced exclusion), that (an interfaith marriage) is not a crime," he said."Marriage is the basis of discrimination only if it is a lady?" Justice Nagarathna asked, as Khambata's arguments progressed."Yes. This is a man-made imposition on an otherwise progressive and great religion," Khambata said.The Court went on to remark that such selective excommunication appears to have a discriminatory effect. "The right of conscience under Article 25 (1) is a right by birth and cannot be taken away by marriage. In this case, marriage as a basis of classification is discriminatory against women," Justice Nagarathna observed.Khambata agreed, adding,"Because the same principle is not applied to a man. The same should apply both ways. And that could lead to huge ramifications not only for Parsi Zoroastrians but across the board. It would lead to some terrible consequences."Justice Nagarathna further observed,"Children of Parsi father have the benefit of the Zoroastrian religion. That means it is by birth. Same thing (should) apply to the wife also. It is a religion by birth, it cannot be taken away by marriage.".Religious denomination's rights not superior to individual's freedom of religionKhambata also argued that the rights of a religious denomination under Article 26 are not wider than one's freedom to practice their religion or exercise their conscience under Article 25 of the Constitution of India.Both must be read harmoniously, he emphasised. "The two provisions form a compact and must be read together. It is the same right of religion. It is not a separate or distinct right that a denomination exercises. It cannot be dichotomised or divorced. A river cannot rise higher than its source; Article 26 rights cannot rise higher than an Article 25 (1) right," he said. "Rather Article 26 right is there because of Article 25," observed Justice Nagarathna. "It cannot acquire supremacy over Article 25(1). Even assuming Article 26 is some separate right, clearly in the scheme it is complementary to Article 25. It cannot operate in conflict with Article 25. Article 26 cannot give a higher right to religion or a lower right to religion. There is no hierarchy," added Khambata. .Khambata will continue his submissions tomorrow. .The reference case before the nine-judge 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.The reference verdict will also have an impact on other cases involving faith-based customs in various religious communities..Why was 2006 Sabarimala PIL entertained at all? CourtThe hearing today also saw the Bench repeatedly question why a public interest litigation (PIL) filed by a lawyers' body, Indian Young Lawyers Association, on the Sabarimala temple entry issue was entertained by the Court at all. The association's lawyer asserted that the association too had women believers who were entitled to challenge entry restrictions into the temple.Justice Nagarathna, however, observed that a true Lord Ayyappa devotee would have respected the Sabarimala temple's customary beliefs.“This is quite serious. A person who has full faith and belief in the Lord or the deity or the goddess will follow what is required for the performance of worship. If any such devotee is saying I will break all niyams and even then I will enter, such a person cannot be encouraged by this court," the judge said.“In Sabarimala, I am entering with the firm belief for all rituals prescribed for any worshipper," the association's counsel maintained.“You are not a true believer," Justice Nagarathna replied.The association's counsel further informed that an earlier Bench led by former CJI Dipak Misra had, in fact, not allowed the petitioners to withdraw the Sabarimala temple entry PIL even though they expressed their desire to withdraw from the case because they had faced threats. Justice BV Nagarathna observed that the threats would have gone if the Court had simply not entertained the case. "With great respect, rather than ensuring that there was security provided to the advocates, he (CJI Misra) could have ensured that there was no need for security threat at all by not entertaining this petition," Justice Nagarathna said.CJI Kant noted that the 2006 PIL was filed after a newspaper report. The report said that purification rituals were carried out at Sabarimala after an actress stated that she had entered the temple during a 1987 film shoot.CJI Kant observed that the Court could have simply ordered legal action against the temple priests if there was any criminal offence committed. "We entertained PILs based on this kind of document which should have been thrown outrightly in the dustbin? A news item. Law would have taken its own course, if someone has committed misconduct. How does this article give you a cause of action to rake up the issue?” he asked. "It is easy to get articles written for the sake of filing PILs. Everyday milord the Chief Justice receives hundreds of letters. Can all those be converted to PILs?" Justice Nagarathna added. She further expressed concern that PIL is increasingly becoming "publicity, paisa and political" interest litigation..PIL has become 'publicity, paisa, political’ interest litigation: Supreme Court.The association's counsel, meanwhile, has also argued that the larger Bench reference itself was not maintainable as it seeks to unsettle questions of law which are already settled. References are usually meant only to settle unsettled law, he maintained..Senior Advocate Khambata is assisted by Senior Solicitor Shiraz Patodia from Dua Associates. The instructing team from Dua Associates includes advocates Ashish Singh, Nina Nariman, Divya Sharma, Juhi Chawla, Mayank Singhal and Adityaraj Patodia..[Live Coverage]
