New Delhi: If individuals start questioning certain religious practices or religious matters before the Constitutional Court, there will be hundreds of petitions questioning various rituals, leading to a break in religions and civilisation, the Supreme Court on Thursday observed.
The nine-judge bench is hearing petitions on discrimination against women in religious places, including the Sabarimala temple in Kerala, and on the scope and extent of religious freedom exercised by multiple religions, including the Dawoodi Bohras.
The bench comprises Chief Justice of India Surya Kant and Justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna P Varali, R Mahadevan and Joymalia Bagchi.
The Central Council of the Daudi Bohra Community introduced the PIL in 1986 seeking to overturn a 1962 ruling, which had struck down the Bombay Excommunication Prevention Act, 1949, as it made it illegal to excommunicate any member of the community.
The 1962 Constitution Bench ruling said: “It is clear from the religious faith and principles of the Dawoodi Bohra community that the exercise of the power of excommunication by its religious leader on religious grounds forms part of the administration of its affairs in religious matters, and the 1949 Act which makes even such excommunication invalid, violates the right of the community under Article 26 of the Constitution.”
Senior advocate Raju Ramachandran, representing a group of Dawoodi Bohra reformists, contended that a practice done in response to secular and social actions of an individual cannot be a subject of constitutional protection under Article 25 of the Constitution and therefore cannot be a “religious matter” under Article 26 of the Constitution.
Ramachandran told the court that a practice which may have a religious aspect but also significantly and adversely affects fundamental rights is not immune from restrictions under Article 25 of the Constitution or Article 26 of the Constitution.
Responding to the request, Justice Nagaratna said that if everyone starts questioning certain religious practices or religious matters before a Constitutional Court, then “what will happen to this civilization where religion is closely linked to Indian society”.
“There will be hundreds of petitions questioning this right, opening the temple, and closing it. We are aware of that,” she said.
Adding to the response, Justice Sandrich said: “Every religion will collapse and every constitutional court will have to be closed.
“If conflict is allowed between two entities, everyone will question everything. In your case, there may be a civil wrong committed against you, but in another case, another member will say I do not agree. It is reactionary. How far we can go in a country like ours, which is a progressive and mobile country, is the question,” he said.
Justice Nagarathna went on to say that what distinguishes India from any other region is that we are a “civilization” despite having so much pluralism and diversity?
She stressed that diversity is the country’s strength and added: “One of the constants in our Indian society is the relationship of man, woman and child with religion.”
“Now, how does a religious practice or a religious matter get called into question, where does it get called into question, whether it can be called into question, whether it has to be an intra-sect matter for reform or whether the state has to do it or wants the court to decide all these aspects. This worries us.
She said, “What we are putting in place is for the sake of civilization, which is India. India must advance despite all its economy, and everything is fixed in us. We cannot break this constant. This is what worries us.”
Ramachandran replied that India is a civilization under the Constitution and therefore anything inconsistent with the Constitution cannot continue in a civilized society.
He said that’s where the court’s job comes in and it “can’t throw up hands” and says there will be a lot of petitions.
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