On Thursday, the Supreme Court of India noted that if it allowed itself to be used for reviewing and questioning all religious practices, it could lead to a slew of litigations questioning religious practices across different faiths, which would upset religious traditions and social fabric.
The nine-judge Constitution bench is considering a set of petitions raising the question of alleged discrimination against women in religious institutions like Sabarimala temple in Kerala. The wider issue is also discussed as to the nature and ambit of religious freedom in India as reflected in Articles 25 and 26 of the Constitution and how it is interpreted with respect to various religious communities including Dawoodi Bohra.
Chief Justice of India Surya Kant chairs the bench, which also includes Justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi.
The petitioners belonging to the Central Board of Dawoodi Bohra Community had filed a petition in 1986, which the court was considering during the hearing. The plea was asking for reconsideration of a judgment on 1962 that had declared the excommunication of community members illegal under the Bombay Prevention of Excommunication Act, 1949.
The 1962 judgement had acknowledged the religious head of the Dawoodi Bohra, as part of their religious autonomy in the Constitution, Article 26.
Senior advocate Raju Ramachandran, on behalf of a group of reformists Dawoodis Bohra, contended that practices having a social or secular impact cannot be granted constitutional protection under Article 25 or Article 26 if they violate fundamental rights. He also argued that acts of religion having significant effect on the rights of individuals may not be constitutionally protected.
The hearing is ongoing, with the court striving to reconcile religious freedom with constitutional rights to equality and fundamental rights.