The Supreme Court on Thursday expressed unease over the breadth of judicial review in religious matters, and asked whether frequent or indiscriminate interference by constitutional courts in religious practices could destabilize religion itself — an “invariant” in a civilization like India where, it said, faith remains deeply intertwined with social life.
“This disturbs us. We, the nine judges, what we are putting in place is for the sake of civilisation, this is India. India must progress. For all its development, its economy and everything, there is a constant in us – we cannot break that constant,” the bench observed while hearing a host of issues arising from the Sabarimala review proceedings and associated questions on the scope of religious freedom.
The bench, headed by Chief Justice of India Surya Kant and also comprising Justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, A G Masih, Prasanna P Varali, R Mahadevan and Joymalia Bagchi, was hearing submissions on the interplay between religious freedom, communal autonomy and fundamental rights.
Justice Nagaratna warned that if every religious practice is subject to constitutional challenge, the courts may find themselves endlessly drawn into doctrinal disputes. “If everyone starts questioning certain religious practices or religious matters before a constitutional court, what will happen to this civilization where religion is so closely linked to Indian society? There will be hundreds of petitions questioning this right, this right, opening the temple, closing the temple,” she added.
Justice Sandrich expressed this concern, saying: “If such cases are heard, everyone can question everything. Every religion will collapse, and every constitutional court must be closed.”
These observations came during submissions submitted by senior advocate Raju Ramachandran regarding the practice of excommunication in the Daudi Bohra community. Speaking about the reformist members of the society, Ramachandran said the court cannot remain a silent spectator as excommunication leads to “civil death” and strips the individual of his fundamental rights.
He emphasized that excommunication leads not only to social ostracism, but also to denial of access to community spaces, burial places, work, and even marital relationships. “The individual’s right under Article 25(1) is effectively being taken away,” he said.
However, the Council has repeatedly tested the features of this intervention. Justice Nagarathna put forth a hypothetical situation where another section of the same denomination might approach the court seeking restoration of excommunication as an essential religious practice. “Now what should this court do in such a situation?” I asked.
Justice Amanullah observed that once courts start applying constitutional proportionality in internal religious matters, the autonomy guaranteed to sects under Article 26 may itself be weakened.
The ongoing proceedings arise out of the Supreme Court’s 2019 reference order in the wake of the 2018 Sabarimala judgment, which had allowed entry of women of all ages into the Sabarimala temple by scrapping the practice of banning the entry of women between the ages of 10 and 50 years. While hearing review petitions against this ruling, the Court formulated broader constitutional questions relating to the doctrine of fundamental religious practices, the relationship between Articles 25 and 26, and the extent of judicial scrutiny in matters of faith.
The current hearings are expected to shape the constitutional framework governing religious freedom across communities, including disputes over the entry of Muslim women into mosques and dargahs, excommunication practices among the Dawoodi Bohras, and the status of Persian women who marry outside the religion.
On Thursday, the debate also turned to the contested idea of “constitutional morality,” a principle cited heavily in the 2018 Sabarimala judgment. Ramachandran defended the concept, arguing that just as the Constitution has a “basic structure,” it also embodies a core set of constitutional values that courts must enforce.
He added: “Anything that conflicts with our Constitution cannot be accepted in a civilized society governed by the Constitution.”
However, Justice Bagchi cautioned against using constitutional morality as an independent criterion to invalidate religious practices. He noted that “reading the phrase constitutional ethics within the framework of ethics under Article 26 may not be the correct way to interpret the provision.”
The session also witnessed extensive discussions on the practice of female genital mutilation (FGM) within sections of the Dawoodi Bohra community. Senior advocate Siddharth Luthra said the practice directly violates the bodily autonomy, physical health and sexual integrity of minor girls.
“It is done at the age of seven. It is the mutilation of a vital organ in the female body,” Luthra said, adding that the practice affects physical, emotional and reproductive health and has been banned in dozens of countries.
Justice Bagchi noted that this case may not even require a detailed investigation into competing rights because Article 25 itself allows for restriction of religious practices on the grounds of “validity.” He pointed out that “penis circumcision cannot be equated with genital mutilation of the clitoris,” rejecting attempts to compare female genital mutilation to male circumcision.
Justice Amanullah also expressed his strong disagreement with the arguments defending the practice. “What are you talking about! Make your facts clear. He commented after the lawyer tried to argue that the practice was not intended to suppress sexuality. Rather, it is quite the opposite.”
The authority also stressed that any religious practice that conflicts with physical independence or mental integrity may require judicial scrutiny. Justice Bagchi noted that the case is not only about the secular consequences of excommunication, but also about the direct impact of certain practices on the “physical and mental well-being” of individuals.
Senior advocate Jaydeep Gupta, representing Kerala, urged the court to act cautiously, stressing that the jurisprudence surrounding Articles 25 and 26 has evolved over seven decades. He said courts do not substitute their theological understanding while examining whether a practice is essential to religion, but instead evaluate evidence regarding custom and usage.
“The accumulated constitutional wisdom of those 75 years must be carefully examined before any departure is made,” Gupta said.
Controversy over this issue will continue next week.
