Sabarimala Reference | ‘Excommunication is closest it can come to civil death’: Respondents argue

ON THURSDAY, Senior Advocate Raju Ramachandran continued with his submissions regarding the excommunication faced by members of the Dawoodi Bohra Community, as Respondents continued arguments on the thirteenth day of hearings in the Sabarimala Reference. ‘Excommunication as close as it gets to ‘civil death’’: Senior Advocate Raju RamachandranAt the very outset of his submissions, Ramachandran talked about the ingrained fear of reprisal which prevented people from speaking up on the injustices meted out by the practice of excommunication. He cited the findings of the Nathwani Commission report which comprised instances of the crushing impacts of excommunication in the form of - breaking up of marriages, loss of employment, complete denial of entry into the mosque and the loss of the right to be buried in the graveyard of one’s community which leads to an inescapable form of social ostracisation..On the practice of excommunication, Ramachandran referred to the Privy Council Judgement of Hasanali v.Mansoorali (1947) which upheld the power of Syedna to excommunicate as a result of which the State in its power had tried twice to safeguard the individuals from this practice by the virtue of bringing forth the the Bombay Prevention of Excommunication Act, 1949 and the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016.The 1949 Act’s validity was challenged by the Syedna with the Bombay High court upholding the validity of the Act. Dissatisfied with the Court’s stance, the Syedna eventually appealed against the decision in the Supreme Court. The appeal, however, became infructuous due to the death of the original plaintiff. The Syedna had approached the Supreme Court again in 2023. During the hearing, Chief Justice of India Surya Kant observed that it was an oversight on the part of the Court by not impleading the members of the Dawoodi Bohra community as a party. The very nature of excommunication was gravely questioned by Ramachandran as he noted that it was ‘as close as it can get to a ‘civil death’’, highlighting the suffering endured by generations of families. He stressed upon the nefarious design of a practice like excommunication which had a debilitating impact on the lives of the victim..‘Irrespective of nature of excommunication, individual cannot be made hollow’: Justice Ahsanuddin AmanullahOn the issue of the interpretation of the scope and ambit of Article 25, Ramachandran noted that the term ‘ fraternity’, as used in the Preamble, ensured the dignity of the individual. He reiterated Justice M.M. Sundresh’s observation on Article 26 being an extension of Article 25. At this point CJI Surya Kant astutely observed that the case of Dawoodi Bohra Community was different from the other matters within the Sabarimala Reference as in the present case a legislation is in place for the same. Ramachandran also submitted that Article 26 was an expression of Article 25 and reiterated Senior Advocate Darius Khambata’s point on the continuum of Articles 25 and 26. Ramachandran underscored that irrespective of the nature of the religious practices of a denomination, it could not have an overarching effect on the individual’s right to religious freedom and that the right of an individual cannot be subordinated to the denomination’s right under Article 26. He also highlighted loss of a watertight compartmentalisation of the fundamental rights as per the ‘Golden Triangle’ expounded in the case of Minerva Mills (1980)..During the course of his submissions Justice Ahsanuddin Amanullah posed a profound question on whether the relief which was being sought by Ramachandran inclined on the complete ban of the practice of excommunication. He responded that while there are certain practices that always exist for religious disciplining to keep the followers together, such practices needed to be in proportion with the measure in which a religious diktat was circumvented. Justice Amanullah further contemplated upon the scope of intervention in the possibility of considering excommunication as a purely religious act and observed that irrespective of the nature of excommunication “the individual cannot be made into a hollow”. On the interplay of rights of persons versus that of religious denominations, Ramachandran acknowledged the diversity of India as a civilization whose inhabitants shared a deeply intimate bond with religion whilst being cognizant of the fact that the civilization was enclosed within the perimeters of the Constitution. In his submissions, he stressed on individuals lying at the heart of the Constitution. He challenged the findings of the majority judgement in the case of Syedna v. State of Bombay (1962), along with inviting the Court to consider the minority dissenting judgement given in the same case by the then CJI B.P. Sinha. Ramachandran vigorously placed in his submissions the freedom enshrined within the Constitution for an individual to have an independent relation with their creator in case they believe in having no onus to be answerable on one’s religious beliefs. Ramachandran equated the position of an excommunicated individual with that of an ‘untouchable within the community’..On the question of interpreting constitutional morality, Ramachandran argued that interpreting ‘morality’ as ‘public morality’ would lead to an ‘amorphous review’ to be undertaken by the Court of the same and instead suggested that ‘morality’ should be construed as the ‘internal morality of the Constitution’.The Respondent in the case contended the veracity of the instances mentioned with the CJI observing that the instances alone cannot be considered to declare excommunication as a violative practice. ‘Without individuals, only a shell of religious denomination remains’: Senior Advocate Siddharth LuthraThe latter half of the hearing was engaged by the submissions made by Senior Advocate Siddharth Luthra challenging the practice of Female Genital Mutiliation (‘FGM)’ practised within the Dawoodi Bohra community. He started his submissions by classifying religious plurality into three categories -- inter-religious plurality , intra-religious plurality and intrra-individual plurality. The S.R. Bommai judgement (1994) was also cited which upheld the ‘freedom of faith and religion as an internal part of the basic structure’. In his submissions he recognised the need of movements and reform within a religion drawing illustrations from Sikhism as a religion which is an ‘eclectic mix of the belief of Hinduism and Sufi Saints’. He further submitted that the right to religious freedom operated as a three pronged structure - ‘an individual versus another individual’ , ‘an individual v. religious denomination’, and lastly ‘rights against a third party’. .On the interpretation of Article 26, he questioned that if a denomination moves beyond its rights of managing its internal affairs to constraining people from exercising their religious freedom, then how can the same be permissible in the larger context? Luthra reasoned that since individuals give structure “to the formation of a denomation…, if the very same individuals are tossed away then there would only remain a shell of denomination.” He also submitted that a right of the denomination under Article 26 “cannot prevail if it fails to stand the test of the rights enshrined in Part III of the constitution.”During the course of his submissions, Luthra expounded upon the actual nature of FGM which is carried upon a female child at the age of seven years, which is in direct conflict with incapacity of taking the consent of such a minor. Such an act at such a tender age does not constitute a mere injury but also is a crackdown on the sexuality and bodily autonomy of the individual. The respondent in this case contended that the act of refraining from participating in the said practice does not result in excommunication and compared it with a similar procedure carried out in western countries, referred to as ‘Hoodectomy’. With respect to his submission on the interpretation of morality, he beseeched to construe the term not as social morality but as ‘critical morality’- ‘that which the law ought to enforce’.‘Constitution not a spiritual document’: Senior Advocate Jaideep GuptaAs the hearing for the Sabarimala Reference neared the end, Senior Advocate Jaideep Gupta appeared for the State of Kerala and implored the Court to read the Constitution as a ‘doctrine of governance’ and not as a ‘spiritual document’. He further submitted that whether something qualifies as a religion or not rarely constitutes as a question of law before the Court except in the cases concerning the teachings of Aurobindo and Ramkrishna Mission, wherein the Court declined to consider the following communities as a ‘religion’. He underscored the constitutional guarantee protecting not just religious opinions but also acts done in pursuance of religion. .Gupta also stressed upon the relevance of the doctrine of essential religious practice by citing Mohd. Hanif Quareshi v. State of Bihar (1958), which had ruled that the ban on the slaughter of cows would not count as an infringement upon the rights of the Muslim community as the slaughter of cows does not qualify to be an essential religious practice within the community. Additionally he also cited the cases of Parasnath Hills (2025)and Ismail Farooqi, (1993) which were largely centered on the doctrine of essential religious practice. Towards the end, Justice Sundresh posed the question: whether Article 25(2)(b) could be interpreted as universally overriding all denominational rights. The hearings for the Sabarimala Reference would continue next Tuesday with the continuation of arguments advanced by Senior Advocates Jaideep Gupta , Menaka Guruswamy and other parties. .We're bringing The Leaflet closer to you! Join thousands of readers on our new WhatsApp and Telegram channels. Stay informed, stay connected.WhatsAppTelegram

Sabarimala Reference | ‘Excommunication is closest it can come to civil death’: Respondents argue

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