YESTERDAY, Senior Advocate Darius Khambata reopened his submissions by addressing the primacy attributed to privacy in the exercise of the right enshrined under Article 25, citing the Puttaswamy judgment (2017), which had categorically held that the right to freedom of religion implicitly contains the choice of having or not having faith, with privacy being interwoven with Article 25.
‘Onus of pursuing a civil suit lies on the party carrying out the exclusionary practice’: Senior Advocate Khambata
Justice B.V. Nagarathna deftly questioned the modality through which justice was being sought in the present case. She suggested that pursuing a civil suit for a permanent injunction, instead of the current petition, would have been a more fitting approach. Khambata, exuding nimbleness, was steadfast in his submission that the onus of opting for a civil suit lay upon the party carrying out such an exclusionary practice, which happened to be the respondent in the present case.
On the question of harmonisation and balance between Articles 25 and 26, Khambata placed reliance on the Electoral Bonds case (2024)which was riddled with the conflict between upholding the right to privacy of a political party versus the right to information available to the public at large. Premised on this, he contested the existence of any hierarchy amongst the competing rights encompassed in the Constitution, submitting that if such a hierarchy is found to be present, a strict adherence to the same would be non-negotiable.
Khambata further underscored that Article 26(b) is outrightly a right of autonomy of the denomination from the State’s action, and not a right to exercise unwavering dominance over individuals. He alerted the Court about the perils of conflating religious autonomy with authoritative control of a denomination over its members. He also advanced an argument drawn from a case before the European Court of Justice, in which a regulation mandating that animals be slaughtered only after stunning was challenged by the Muslim and Jewish communities as an infringement of their religious rights. The Court, however, observed that where a regulation does not interfere with the key feature of a religion, it stands protected.
Khambata underscored that Article 26(b) is outrightly a right of autonomy of the denomination from the State’s action, and not a right to exercise unwavering dominance over individuals.
Proceeding further, Khambata placed reliance on Shirur Mutt (1954) and Bijoe Immanuel (1986) on the question of the scope of judicial review. He submitted that if a practice has been legitimately proven before a court of law to be a belief of a community or denomination, then such a court is bound to approve of the same. However, in the present case, the letters and other evidentiary submissions before the Court alluded to no such practice, across various other Parsi institutions, of denying entry to a Parsi woman into the agiary after her marriage to a Hindu man.
Khambata additionally challenged the credibility of such a prohibitive practice by the respondent, noting that intermarriage raises brows only when it is the Parsi woman who marries outside the community.
As his arguments drew to a close, Khambata called upon the Constitution Bench to interpret the Constitution not merely as a statute, but as one affecting the rights of a billion people noting that, “constitutional silences are not the same as a constitutional vacuum.”
‘Freedom of conscience is the fountain source of the fundamental right to freedom of religion’: Senior Advocate Shrivastava
During the latter part of the hearings, Senior Advocate Ravindra Shrivastava appeared as second counsel for Goolrukh Gupta alongside Khambata. Srivastava commenced his submissions by emphasising upon “freedom of conscience” as the “fountain source of the fundamental right to freedom of religion.”
On the interpretation of Articles 25 and 26, he submitted that the right to maintain institutions and manage their affairs was an amplification of Article 25, going on to bracket Articles 27 and 28 as stemming from the same cluster of rights originating from Article 25. He further termed Articles 26(a), (b), (c) and(d) as the facets of propagation enshrined in Article 25. Placing reliance on Sri Venkataramana Devaru (1957), which gave primacy to both Articles and supremacy to none, he submitted that Articles 25 and 26 do not override each other, but are also not independent of each other and can be intertwined.
Advancing a one-of-a-kind argument, Srivastava delved into the intent of the makers of the Constitution, submitting that had they envisioned an overriding effect of Article 26 on Article 25, Article 26 would have inevitably begun with a non-obstante clause. The absence of such a clause, he argued, was clearly indicative of the framers' intent.
On the rights enjoyed by a denomination, he vehemently argued that individuals are the core of the religious denomination, and without the former no denomination can come into being. Justice Ahsanuddin Amanullah posed the larger question of whether the freedom of a group is larger than that of the individual. Justice B.V. Nagarathna addressed this by terming Article 26 as a denomination’s fundamental right, in which the individual is subsumed into the denomination. She also observed, at the conclusion of Srivastava’s submissions, that merely by marrying outside the Parsi community, a Parsi woman cannot lose her religion.
Srivastava commenced his submissions by emphasising upon “freedom of conscience” as the “fountain source of the fundamental right to freedom of religion.”
Senior Advocate Ramachandran acquaints the Bench with the plight of the Dawoodi Bohra community
Just as the hearing was drawing to an end, Senior Advocate Raju Ramachandran commenced by acquainting the Court with the plight of a Reformist Dawoodi Bohra group and another individual whose father had been subjected to excommunication, a practice which, as Ramachandran submitted, struck at the very core of human dignity.
Recounting the origins of the Bohra community, he pointed to the presence of a Dai, considered to be the supreme authority of the community's text, and to whom children of the Dawoodi Bohra community pledge their allegiance upon attaining puberty. He went on to list a myriad of real-life scenarios in which members of the community were subjected to excommunication at the discretion of the Dai, with some instances premised upon something as simple as contesting a municipal corporation election or opening a cooperative society. Any act attracting the ire of the Dai, he submitted, entailed both social and legal consequences.
Before the cessation of the hearing for the day, Ramachandran was consistently questioned upon the jurisdiction to approach the Court through Article 141 instead of Article 32, to which he agreed to produce submissions during the course of his arguments.
The hearing continued today in court.
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