Day 13 of Sabarimala review: Questioning religious practices will break religion, civilisation, says SC
Nine-judge Constitution Bench poses several questions on the scope and ambit of freedom practised by various religious group, including the Dawoodi Bohra community
If individuals start questioning certain religious practices or matters of religion before a constitutional court, there will be hundreds of petitions questioning different rituals, leading to the breaking of religions and civilisation, the Supreme Court said on Thursday.
On the 13th day of hearing on issues arising out of petitions seeking review of the Supreme Court’s 2018 verdict that set aside the age-old restriction on entry of women aged between 10–50 years into the famous Lord Ayyappa Temple at Sabarimala hilltop in Kerala, a nine-judge Constitution Bench led by Chief Justice of India Surya Kant posed several questions on the scope and ambit of freedom practised by various religious groups, including the Dawoodi Bohra community. It also wanted clarity on the extent of permissible judicial intervention in such matters.
The Bench – which also included Justice BV Nagarathna, Justice MM Sundresh, Justice Ahsanuddin Amanullah, Justice Aravind Kumar, Justice Augustine George Masih, Justice Prasanna B Varale, Justice R Mahadevan and Justice Joymalya Bagchi – also expressed concern over the practice of Female Genital Mutilation (FGM) among sections of the Dawoodi Bohra community.
Senior advocate Siddharth Lutha, representing those opposed to FGM, submitted that IT was performed on young girls aged 7 years, and it causes an irreversible change in their bodies, which will affect their sexual and reproductive health.
Justice Bagchi noted that many arguments may not be necessary, as the practice would be hit by the ground of “health” under Article 25. As per Article 25, a religious practice can be restricted on the ground of health, apart from public order and morality.
Justice Nagarathna raised certain serious questions on relationship between State, religion and the extent of judicial intervention in religious practices.
“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 the temple, and the closure of the temple. We are conscious of this,” she said.
“Every religion will break and every constitutional court will have to be closed,” added Justice Sundresh.
On behalf of a group of reformist Dawoodi Bohras, senior counsel Raju Ramachandran submitted that a practice conducted in response to secular and social actions of an individual cannot be the subject of Constitutional protection under Article 25 of the Constitution and consequently can’t be a ‘matter of religion’ under Article 26 of the Constitution.
Ramachandran said a practice which may have a religious aspect but also significantly and adversely impacted fundamental rights was not immune to restriction under Article 25 of the Constitution or Article 26 of the Constitution.
The Bench said the 1962 judgment in ‘Sardar Syedna Taher Saifuddin Saheb vs. The State of Bombay’ was wrong in absolutely striking down the Bombay Prevention of Excommunication Act, 1949 that made excommunication of any community member illegal.
Justice Nagarathna said what set India apart from any other region was that “we are a civilisation” despite having so many pluralities and diversities. One of the constants in our Indian society is the relationship of human beings — man, woman and child — with religion. Now, how a religious practice or a matter of religion is questioned… where it is questioned… whether it can be questioned… whether it has to be a question within a denomination for a reform or whether the state will have to do or you want the court to adjudicate upon all these aspects… This is troubling us.
“What we lay down is for a civilization that is India… India must progress despite all its economy, everything there is constant in us. We can’t break that constant. That is what is troubling us,” Justice Nagarathna said.
Ramachandran, however, said, “India is a civilisation under the Constitution and, therefore, nothing which goes against the grain of the Constitution can be continued in a civilized society… That’s where the court’s task comes in…”
