The Supreme Court of India has cautioned against the potential for societal disruption if individuals begin questioning religious practices in constitutional courts, highlighting the delicate balance between religious freedom and constitutional principles.
Key Points
- The Supreme Court cautions against the widespread questioning of religious practices in constitutional courts, fearing societal disruption.
- A nine-judge Constitution bench is examining petitions related to discrimination against women in religious places and the scope of religious freedom.
- The court is reviewing the Dawoodi Bohra community's practice of excommunication and its constitutional validity.
- The court emphasises the importance of India's diversity and the relationship between individuals and religion in Indian society.
- The Supreme Court is grappling with the extent to which religious practices can be questioned and adjudicated upon by the courts.
The Supreme Court on Thursday remarked that if individuals start questioning certain religious practices or matters of religion before a constitutional court, then there will be hundreds of petitions questioning different rituals, leading to the breaking of religions and civilisation.
The nine-judge Constitution bench is currently hearing petitions related to discrimination against women at religious places, including the Sabarimala temple in Kerala, and on the ambit and scope of the religious freedom practised by multiple faiths, including Dawoodi Bohras.
The bench comprises Chief Justice of India (CJI) Surya Kant and Justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi.
Dawoodi Bohra Community and Excommunication
The Central Board of Dawoodi Bohra Community filed a PIL in 1986 seeking the setting aside of a 1962 judgment, which had struck down the Bombay Prevention of Excommunication Act, 1949 -- this law made excommunication of any community member illegal.
The 1962 Constitution bench judgment said, "It is evident from the religious faith and tenets of the Dawoodi Bohra community that the exercise of the power of excommunication by its religious head on religious grounds formed part of the management of its affairs in matters of religion and the 1949 Act in making even such excommunication invalid, infringed the right of the community under Article 26(b) of the Constitution."
Arguments on Constitutional Protection
Senior advocate Raju Ramachandran, representing a group of reformist Dawoodi Bohras, submitted that a practice which is 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 cannot be a 'matter of religion' under Article 26 of the Constitution.
Ramachandran told the court that a practice which may have a religious aspect but also significantly and adversely impacts fundamental rights is not immune to restriction under Article 25 of the Constitution or Article 26 of the Constitution.
Court's Concerns About Societal Impact
Responding to the submission, Justice Nagarathna said that if everybody starts questioning certain religious practices or matters of religion before a constitutional court, then "what happens to this civilisation where religion is so intimately connected with the 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.
Adding to the response, Justice Sundresh said, "Every religion will break and every constitutional court will have to be closed.
"If the dispute between two entities are allowed then everybody will question everything. In your case there may be a civil wrong committed to you but in another case, another member will say I don't agree. It is regressive. To what extent can we go in a country like ours which is progressive and on the move is the question," he said.
India's Civilisational Identity
Justice Nagarathna went on that what sets apart India from any other region is that "we are a civilisation" despite having so many pluralities and diversities.
Asserting that diversity is the country's strength, she added, "One of the constants in our Indian society is the relationship of human beings -- man, woman and child -- with the 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 civilisation that is India. India must progress despite all its economy, everything there is a constant in us. We can't break that constant. That is what is troubling us ," she said.
Ramachandran replied that India is a civilisation under the Constitution and therefore nothing which goes against the grain of the Constitution can be continued in a civilised society.
He said that's where the court's task come in and "it can't throw up its hands" and say there will be so many petitions.
