Expanding judicial review in matters of faith troubling: SC

THe sublime margaret court on th verbalised unease o'er the expanding reach of judicial review into questions of faith, wondering whether frequent or indiscriminate intervention by constitutional courts into religious practices could destabilise religion itself -- “a constant” in a civilisation like India where, it said, faith remains deeply intertwined with social life.“This is troubling us. We, nine judges, what we lay down is for a civilisation, that is India. India must progress. Despite all its development, economy, everything, there is a constant in us -- we can’t break that constant,” observed the bench while hearing a batch of matters arising from the Sabarimala review proceedings and connected questions on the scope of religious freedom.The bench, headed by Chief Justice of India Surya Kant and also comprising justices BV Nagarathna, MM Sundresh, Ahsanuddin Amanullah, Aravind Kumar, AG Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi, was hearing submissions on the interplay between religious freedom, denominational autonomy and fundamental rights.Justice Nagarathna cautioned that if every religious practice were subjected to constitutional challenge, courts may find themselves drawn endlessly into theological disputes. “If everybody will start 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 Indian society? There will be hundreds of petitions questioning this right, that right, opening of temple, closure of temple,” she remarked.Justice Sundresh echoed the concern, saying: “If such cases are entertained, then everyone can question everything. Every religion will break, every constitutional court will have to be closed.”The observations came during submissions by senior advocate Raju Ramachandran in relation to the practice of excommunication in the Dawoodi Bohra community. Appearing for reformist members of the community, Ramachandran argued that the court cannot remain a silent spectator where excommunication results in “civil death” and strips an individual of fundamental rights.He submitted that excommunication leads not merely to social ostracism but to denial of access to community spaces, burial grounds, employment and even marital relationships. “An individual’s Article 25(1) right is effectively taken away,” he argued.The bench, however, repeatedly tested the contours of such intervention. Justice Nagarathna posed a hypothetical situation where another section of the same denomination may approach the court seeking restoration of excommunication as an essential religious practice. “Now what should this court do in such a situation?” she asked.Justice Amanullah observed that once courts begin importing constitutional proportionality into internal religious matters, the autonomy guaranteed to denominations under Article 26 may itself stand diluted.The ongoing proceedings arise from the Supreme Court’s 2019 reference order in the aftermath of the 2018 Sabarimala judgment, which had allowed entry of women of all ages into the Sabarimala Temple by striking down the practice prohibiting entry of women between 10 and 50 years of age. While hearing review petitions against that verdict, the court framed broader constitutional questions concerning the essential religious practices doctrine, the relationship between Articles 25 and 26, and the extent of judicial scrutiny over matters of faith.The present hearings are expected to shape the constitutional framework governing religious freedom across communities, including disputes involving Muslim women’s entry into mosques and dargahs, excommunication practices among Dawoodi Bohras, and the status of Parsi women marrying outside the faith.On Thursday, the debate also turned to the contested idea of “constitutional morality”, a doctrine heavily invoked in the 2018 Sabarimala judgment. Ramachandran defended the concept, arguing that just as the Constitution has a “basic structure”, it also embodies a core set of constitutional values that courts must enforce.“Nothing which goes against the grain of our Constitution can be countenanced in a civilised society governed by the Constitution,” he submitted.Justice Bagchi, however, cautioned against using constitutional morality as an independent touchstone to invalidate religious practices. “Reading the expression constitutional morality into morality under Article 26 may not be the correct way of construing the provision,” he observed.The hearing also witnessed extensive arguments on the practice of female genital mutilation (FGM) within sections of the Dawoodi Bohra community. Senior advocate Sidharth Luthra argued that the practice directly infringes bodily autonomy, physical health and sexual integrity of minor girls.“This is done at the age of seven. It is mutilation of a vital organ of the female body,” Luthra submitted, adding that the practice affects physical, emotional and reproductive health and has been prohibited in dozens of countries.Justice Bagchi remarked that the issue may not even require an elaborate inquiry into competing rights because Article 25 itself permits restriction of religious practices on grounds of “health”. “Circumcision of the penis cannot be equated with genital cutting involving the clitoris,” he observed while rejecting attempts to compare FGM with male circumcision.Justice Amanullah also expressed strong disagreement with submissions defending the practice. “What are you talking! Get your facts clear. It is just the opposite,” he remarked after counsel attempted to argue that the practice was not intended to suppress sexuality.The bench also underlined that any religious practice interfering with bodily autonomy or mental integrity may require judicial scrutiny. Justice Bagchi observed that the issue was not merely about secular consequences of excommunication, but also about the direct impact of certain practices on the “bodily and mental integrity” of individuals.Senior advocate Jaideep Gupta, appearing for the State of Kerala, urged the court to tread cautiously, emphasising that the jurisprudence surrounding Articles 25 and 26 has evolved over seven decades. He argued that courts do not substitute their own theological understanding while examining whether a practice is essential to a religion, but instead assess evidence regarding custom and usage.“The accumulated constitutional wisdom of those 75 years ought to be carefully examined before any departure is made,” Gupta submitted.Arguments in the matter will continue next week.