Questioning religious practices will break religion, civilisation: SC in Dawoodi Bohras case

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 the civilisation.

The nine-judge Constitution bench is 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 BV Nagarathna, MM Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi. 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.”

Senior advocate Raju Ramachandran, representing a group of reformists 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.

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.

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 constitution can be continued in a civilised society.

He said that’s where court’s task come in and “it can’t throw hands” and say there will be so many petitions.