New Delhi:
The Supreme Court today pointed out that the Indian civilisation’s strength is its plurality and diversity and what the nine-judge bench will answer in the Sabarimala reference will have an impact on an entire civilisation, and not just one religion.
Justice BV Nagarathana made the observation as the court heard submissions by senior lawyer Ramachandran against the ex-communication of women in the Dawoodi Bohra community.
Justice Nagarathna pointed out “what’s troubling the court” while hearing arguments by petitioners defending the grounds taken by the landmark Sabarimala verdict of 2018, which allowed entry of women of all ages to Kerala’s Lord Ayyapa temple.
“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,” she said.
“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,” the judge said.
She said 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 someone wants the court to adjudicate upon all these aspects – these are the things that’s troubling the court.
“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 Nagarathana said.
Senior lawyer Raju Ramachandran, however, argued that India is a civilisation under a Constitution and anything which is against the Constitution should not be allowed to continue.
“We are a civilization under a Constitution, and therefore nothing which goes against the grain of our Constitution can be continued 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,” he said.
He said the courts cannot throw up their hands and say that otherwise there will be too many petitions.
“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,” the senior lawyer said.
“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,” he said.
Appearing for the petitioners challenging the ex-communication of women in the Dawoodi Bohra community, senior lawyer Raju Ramachandran said it led to break-up of marriages, 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. So, an individual’s Article 25(1) right is effectively taken away.
Justice Nagarathana at the outset asked whether the practice of ex-communication still existed. Ramachandran replied it exists, saying when the Supreme Court is dealing with this interplay between Articles 25 and 26, it is not merely about temple worship.
“If Khambata had not mentioned the issue of a Parsi woman’s deemed conversion, or if 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,” Ramachandran said.
“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,” he added.
Chief Justice of India Surya Kant clarified the nine-judge bench is not dealing with individual controversies of ex-communication practice among Parsis and Dawoodi Bohra communities or that of female genital mutilation, but answering constitutional questions of interplay between Article 25 and 26 and how far court’s can adjudicate upon such issues.
“Not at all,” Ramchandran said. “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.” He pointed out that many generations have suffered ex-communication 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.
“This writ petition has remained before this court for 40 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,” the senior lawyer said.
Justice Nagarathna said a group of individuals from the Dawoodi Bohra community may come before the court and say, “please restore ex-communication” and may contend that it is a 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?” she said.
The nine-judge bench is hearing submissions on the Sabarimala reference. It has asked seven constitutional questions which will have far-reaching impact on not only Lord Ayyapa’s devotees but also on the question of women’s entry to mosques, practice of ex-communication of Parsi women on marrying outside the religion and female genital mutilation among the Dawoodi Bohra community.