Sabarimala Reference | Day 12: Religious excommunication violates dignity, argue respondents

Khambata: Courts cannot blindly accept every claim of religion

Continuing his submissions from yesterday, Senior Advocate Darius Khambata clarified that he was attempting to “tread a middle path” and was not advancing an extreme position on judicial review in matters of religion. He submitted that judicial review cannot be completely excluded and the courts must ordinarily defer to genuine religious beliefs.. Once a belief is  proved to be genuine, the Court is bound to accept it, he submitted while referring to Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) and Bijoe Emmanuel v State of Kerala (1986) He pointed out that Courts cannot resolve disputes through a “blind application of the formula that the community alone decides what is essential.” 

Justice M.M. Sundresh questioned whether such disputes belonged in writ jurisdiction at all, warning that this would open the floodgates to thousands and thousands of similar cases. Justice Joymalya Bagchi observed that the question may concern “entertainability” even if maintainability under Article 32 itself remained doubtful. In response, Khambata identified six areas where judicial review cannot be excluded, including disputes over whether a practice genuinely forms part of a religion, whether competing doctrines exist, whether a claimed practice is merely an “artifice,” whether it violates public order, morality or health, and whether it collides with rights under Articles 14, 15, 21 or 25(1). 

When Justice B.V. Nagarathna asked whether exclusion of Parsi women after marriage was “a matter of religion” at all, Khambata responded, “No.” He argued that while intermarriage may be frowned upon, there was no doctrine excluding women from the religion, especially when intermarried Parsi men continued to be allowed entry. Justice Nagarathna observed that an appropriate remedy for such cases would be a civil suit. Khambata, however, argued that the administration should establish if such exclusionary practices have a religious basis.

Khambata: Article 26 is not a “fortress” against Article 25

Khambata argued that while Article 26(b) protects religious denominational autonomy from State interference, it is not a right of domination. Khambata had previously argued that individual fundamental right to religion cannot be restricted by the rights of religious denomination, as it would subject individuals to exclusionary practices followed by the group. Referring to the doctrine of  proportionality, he submitted that courts must identify the precise interests underlying competing rights before attempting reconciliation. He referred to the doctrine of “double proportionality”, which was expanded upon in Association of Democratic Reforms v Union of India (2024), where a Constitution Bench unanimously struck down the Union’s 2018 Electoral Bonds Scheme. The doctrine concerns as to whether the Constitution creates a hierarchy between competing rights, whether the measure adopted is suitable and least restrictive and whether it disproportionately impacts either right. The CJI  observed that such an exercise would arise only if there is a genuine conflict of rights, adding, “Speaking for myself, I don’t agree there is a conflict.” Khambata added that the right of exclusion itself must first be established through religious doctrine and cannot rest merely on administrative assertion. According to him, “What is an inessential practice cannot trump the right to freely practice and propagate religion.” 

He submitted that Articles 25(1) and 26 must continue to reflect India’s ancient civilisational values of mutual respect, tolerance, peaceful coexistence, plurality of belief and practice and religious autonomy. He cautioned that treating Article 26(b) as a standalone “fortress” unrestrained by Article 25 would damage the constitutional balance. Relying on Sri Venkataramana Devaru v State of Mysore (1957), he submitted that balancing, rather than hierarchy, remains the only workable constitutional answer.

Tamboly: Constitution cannot permit regression of rights

Supplementing  Khambata’s submissions, Advocate Karl Tamboly argued that a Parsi woman cannot lose her religion or identity merely because she marries outside the community. He submitted that treating a woman married under the  Special Marriage Act, 1954 (SPA) as having ceased to be both Parsi and Zoroastrian would defeat the object of the SPA itself.

Justice Ahsanuddin Amanullah asked whether rights under Articles 25 and 26 operate differently since Article 26 concerns denominations, Tamboly responded that a denomination is ultimately a collection of individuals and reading Article 26 separately from Article 25 would “do violence” to the constitutional scheme. 

Tamboly relied on the Basic Structure doctrine and the “living tree” principle to argue that the Constitution must evolve with changing understandings of dignity, equality and liberty rather than remain frozen in time. He submitted that constitutional interpretation must move rights forward and not permit a rollback of women’s rights or religious identity through marriage.He argued that the Court’s had moved away from reading fundamental rights in isolated silos while referring to A.K. Gopalan v State of Madras (1950) and Rustom Cavasjee Cooper v Union of India (1970). He argued that while A.K. Gopalan treated Articles 19 and 21 separately, Cooper overruled that approach and recognised that fundamental rights overlap and must be read together. On that basis, he argued that denominational rights under Article 26 cannot be interpreted in a manner that destroys individual protections under Articles 14, 21 and 25.

Shrivastava: Freedom of conscience is the “heart and soul” of Article 25

Senior Advocate Ravindra Shrivastava identified four broad issues arising in the reference: the interplay between Articles 25 and 26, the correctness of the essential religious practices doctrine as developed from Shirur Mutt to Durgah Committee, the scope of constitutional morality and the applicability of stare decisis. He argued that the framers intended Article 25 to place freedom of conscience at the centre of religious liberty, stressing that the Constitution uses the expression “equally entitled to” in relation to conscience, while using the word “right” for the freedom to profess, practice and propagate religion. According to him, this distinction shows that freedom of conscience is the “heart and soul” of Article 25, while religious practice is merely its outward manifestation. He submitted that while acts done in pursuance of faith may be regulated by law, he added, “The conscience of the person cannot ever be questioned,” since the Constitution itself provides no mechanism to investigate or test an individual’s faith.

Shrivastava: Article 26 cannot erase individual identity

Shrivastava submitted that Article 25 protects the individual’s freedom of conscience, while Article 26 gives institutional expression to the shared beliefs of a denomination. According to him, joining a denomination does not mean that a person loses individual rights under Article 25(1). Justice Nagarathna observed that one way of reading Article 26 is that the denomination itself holds the right, and a member ordinarily cannot dispute its practices, while Justice Aravind Kumar noted that this could imply dual rights. Shrivastava responded that Article 26 is not a separate or superior right, but a means of collectively exercising Article 25 rights

He further argued that the right “to manage” under Article 26(b) cannot become a right “to mismanage,” warning that an unrestricted reading would create untrammelled denominational power immune from constitutional scrutiny. According to him, if the framers intended Article 26 to override Article 25, the provision would have begun with a non obstante clause. Instead, both provisions must coexist through harmonious construction. Justice Nagarathna observed, “Article 26 acts as a vehicle or aid to denominational rights and that the real tension lies between Article 25(1) and Article 25(2), particularly where the State intervenes in secular matters or social reform.”

Shrivastava: Constitutional ethos must limit denominational power

Shrivastava argued that Article 26 contains both express and implied limitations. Referring to the phrase “subject to public order, morality and health” in Articles 25 and 26, he submitted that “public order” must be read broadly, giving legislatures authority to intervene where denominational practices affect public order. He further argued that Articles 14, 15, 17 and 21 operate as implied limitations on Article 26, even though the provision does not expressly say it is “subject to” other rights in Part III. He suggested that the Court could refer to “constitutional ethos and principles” instead of the phrase “constitutional morality.” in the provision.

On judicial review, Shrivastava submitted that courts must determine whether a practice is genuinely religious before extending constitutional protection to it. Once that threshold is crossed, courts may still examine whether the practice violates fundamental rights. Referring to the Gujarat High Court ruling on exclusion of Parsi women after interfaith marriage, Justice Amanullah observed that the High Court found no religious text supporting such exclusion and that the restriction appeared to stem from “somebody’s predilection” rather than doctrine. He questioned whether a secular act like marriage under the SPA could itself become a protected religious practice. Shrivastava responded that conversion is voluntary and that the petitioner continued to assert protection under Article 25(1). Justice Nagarathna agreed and observed, “By marrying outside the Parsi community, she cannot lose her religion.”

Shrivastava also defended the essential religious practices doctrine as “the single most balancing factor” between individual and denominational rights, arguing that not every activity permitted by religion automatically acquires constitutional protection. He submitted that ordinary social practices cannot claim protection merely “under the garb of religion.”

Ramachandran: Excommunication cannot override dignity

Senior Advocate Raju Ramachandran, appearing for Dawoodi Bohras argued that the issue before the Court concerns the effect of religious discipline on individual dignity and agency. Referring to the Dawoodi Bohra practice of excommunication, he submitted that the sect’s spiritual head, the Dai, exercises authority not only in spiritual matters but also in temporal affairs, with followers taking an oath of allegiance upon puberty declaring, “You are the master of my life.” According to him, excommunication carries sweeping civil and social consequences, including for acts such as starting a cooperative society, contesting elections or publishing material disapproved of by the Dai. Drawing a parallel with the Parsi case, he argued that just as deemed conversion upon marriage deprives women of agency, and excommunication similarly impinges upon human dignity.

Ramachandran argued that the fundamental rights chapter is “individual-centric” and that Article 26 cannot eclipse dignity, liberty and equality. He accepted that religions may impose discipline, pointing to the Sikh practice of declaring leaders “Tankhaiya” and requiring penance such as kar seva, but argued that the issue here was the proportionality of the punishment and its impact on human dignity. Referring to the Dawoodi Bohra oath, he submitted that followers surrender personal autonomy at a young age and may face social boycott for defying the Dai. Justice Amanullah asked whether the consequences of excommunication were embedded in the oath itself, Ramachandran responded that once allegiance is pledged, followers cannot even start a magazine without approval. He added that these practices were sought to be addressed first through the 1949 legislation and later through the Maharashtra Prohibition of Social Boycott (Prevention, Prohibition and Redressal) Act, 2016.

The Court will continue hearing arguments tomorrow.