Sabarimala: Justice Nagarathna questions maintainability of Article 32 pleas against Constitution bench rulings, says, ‘We can’t change our colour’

Justice Amanullah: The remification of that excommunication is all there; what is given is an oath? What is all mentioned in the oath ramification of excommunication?

Raju: Yes, sir, because once you have pledged you allehience to someone who is master of your life, then you can’t start a magazine.

Justice Amanullah: It’s very revealing, I never knew all this…very, very revealing.

Raju: Why I keep saying individual is because of dignity, because of equality and because of liberty, the same golden triangle.

Excommunication practice, I must explain briefly, which is and let me say at the outset that this is not unique to the Dawood Bohra Community. They can be different kinds of religious punishments, in order to keep the discipline of the faith

Justice Nagarathna: Yesterday, we were saying on merits why that writ petition was entertained in Sabarimala. Today, we can't change our colour and say why your writ petition should also be entertained. We are the same nine people here…What came out of Sabarimala yesterday? We said, "Why was it entertained?" Today, what we should say?..Both are Article 32.

Raju: I don't want to answer the Sabarimala question.

Justice Nagarathna: …there’s no five-judge bench. In another case, in your case, there is a five-judge bench decision…We have to be consistent, sir. We can't change our colours overnight.

Raju: As members of the bar, we also act with a sense of responsibility, and we are as interested and concerned for this court that the right law is laid down. And in a reference like this, the result doesn't matter. We are all assisting, in a non-adversarial way I only assure, that this question will be answered fairly and squarely. But since this is not one of the seven questions referred, let it be the eighth question, which I'll answer at number eight.

CJI: Right now, you can simply say it is not a grey area for this court. There is a case law. There is a discussion. There are judgments. We will see that entire aspect…What my sister said is a very important question. That you will have to respond to.

Justice Nagarathna: Merits, you may have a good case. We are not commenting on that.

Raju: I’m only giving this as a background, and I will be addressing maintainability again.

Justice Nagarathna: Hard facts should not make bad law. Meritorious cases should not lead to bad practices or bad practices cannot be the means. We are very concerned with it…We are not saying anything on the merits. You may have the best of the cases…You can argue, but you have to address us on this.

CJI: Mr Raju, this issue you can address in the last…Don’t carry this, this preliminary objection from our side should not be the preliminary burden on you.

Raju: And the division bench upholds the validity of this act as a measure of social reform. Therefore, the legislature stepped in immediately, my Lords, in 1949, once the Privy Council gave its final judgment. Act upheld by single judge and division bench of the Bombay High Court. Appeal filed in this court, but the appeal…. (inaudible) so the validity of an act which was tested in the context of a real and actual risk because it came up in a suit, that act in that context which was upheld could not reach finality. So the question of validity did not reach finality in this court only because that appeal failed on technical grounds. Then the then Syedna, files an Article 32 petition challenging the constitutional validity of that very act which….(inaudible) Bombay, which became Maharashtra. There was one intervener.

Justice Nagarathna: I think you should start with reasonability first.

Raju: Is that the view of all your Lordships, my Lords?

Justice Nagarathna: I think we can raise another question on the maintainability also.

CJI: You may proceed the way you want…But just keep these two questions in mind..

Raju: But all that I'm trying is that since this is not the immediate subject of the reference, let me answer, and after all, I've been sent here by a five-judge bench to address on these issues.

Justice Nagarathna: Mentioning the memo, we find the order. First is rule nisi (rule to show cause). Then on a mentioning, the then Honourable Chief Justice one line order “refer to seven judge”. Because Shirur Mutt was seven judge. Petition is referred to seven judge…Article 32 petition is straightaway referred to a seven-judge bench.

Raju: But didn't the court later correct its own error, my Lords? Justice Lahoti's bench, 2004. That seven judge bench reference was recalled. Sometimes courts commit errors and then courts correct their errors. All that I wish to assure…

Justice Nagarathna: No, that is all on the premise that the Sayedna case can be overruled in an Article 32 petition. That is staring at us.

Senior advocate Raju Ramachandran starts his submission.

Raju: I represent a group of reformist Dawoodi Bohra. And one person whose father, the late Asghar Ali Engineer, was the victim of excommunication and whose family suffered. The issues I am highlighting here of excommunication impinge on human dignity.

Justice Nagarathna: You are asking for the setting aside of a judgment of this court in an Article 32 petition.

Raju: Let me address that separately. That question is not being run away from. The issues here are this. First comes a judgment of the Privy Council in 1948.

Justice Nagarathna: The judgment of this court is a judgment of the Supreme Court of India. Article 141 is there….It may be a right judgment, it may be a wrong judgment. How do you get the judgment set aside? You file a review. Now, there is also a curative or a larger bench. If it is, that's a five-judge bench; a seven-judge bench can set it aside…Not through an Article 32 petition…We are very apprehensive of it. Reformist mindset, all that is good, but the road taken, the means must be as good as the end.

Shrivastava: According to the high court, there is a presumption that upon marriage, there is a deemed conversion, my lord, and you, if you are esteemed to maintain the position of your social status that you have not converted to the religion of the husband, you should go and revert this presumption and go and file a civil suit and have a declaration.

Justice Nagarathna: Ultimately, the whole thing is what is a religious practice, because in Sabarimala, the religious practice is the basis for saying the prevention of entry. Here, it all depends on the nature of the marriage. Hindu marriage is a sacrament, Muslim marriage is a contract, and a special marriage is a statutory marriage. If it is a statutory marriage here, it is a prevention, a prevention of entry. Here, they are claiming entry; there, they are claiming entry. It's all subtle.

Shrivastava: No one can say that judicial review is not possible. It is not a question of absence of jurisdiction of judicial review, but it is always a question of the extent of exercise of that jurisdiction in a particular case.

Shrivastava: The question ultimately that before mylord will have to decide is this—whether, by joining a denomination, the personal fundamental rights of a person are integrated or taken away.

Advocate Ravindra Shrivastava: By being part of the religious denomination, the personal and fundamental right of the person guaranteed under Article 25 is not whittled down in any manner, otherwise it will mean that by joining the group, an individual would lose his personal identity. Similarly, being part of a religious denomination, a person does not lose or has lesser fundamental right than what is guaranteed by him or her in Article 25...

My understanding is that the Constitution gave every person the right to freedom of conscience. Now, how does one will practice, profess, propagate without his or her common belief where he may not form a sort of a denomination. He has to make a group, my lord, individual; it may not be possible.

My respectful submission, my lord, is that all my lord derives from Article 25 only. Each one of these, also heading to establish and maintain an institution, my lord, is a manifestation or amplification of the right to practice, profess, and propagate religion.

Counsel: The Constitution guarantees every person the freedom of conscience. The question then arises—how can one practise, profess, and propagate religion without sharing one’s beliefs with others? A common belief, when shared among individuals, naturally takes the form of a denomination or group. Individual practice alone may not always be sufficient. Therefore, for the purposes of practising and, more importantly, propagating religion, collective expression becomes significant.

Bench rises and will continue post lunch.

Counsel: I’m not doubting jurisdiction, the Lordships so far when you’re not sitting at nine judges’ combination. A larger bench will..to reconsider if it becomes so necessary. If there is a manifest erroneous interpretation given by the court earlier, maybe not in ignorance of any procedure of law or the Constitution, or maybe not in some precedent and it is so imminent, may not be eminently necessary in public interest to prevent a mischief for the public injury. I'm not doubting my lords.

Counsel: I am representing the intervenor.

Counsel: Zoroastrian and Parsi are used interchangeably. Zoroastrianism is the religion of those who follow the religion professed by Prophet Zoroaster. We are all Zoroastrians once our Navjote ceremonies are performed, we are inducted into the faith. Though the words are used interchangeably in common parlance, effectively, that is the difference between the two words.

Another counsel is submitting and adding few more points to the submission of Khambata.

Khambata: So, in other words, does Article 26 (b).. is it given a hierarchy of higher status than either Articles 25 (1), 21, 15, 14?

CJI: We will be required to follow only when we agree with this perceived vertical conflict between Articles 25(1) and 26.

Khambata: Secondly, indisputably the same denomination, assuming it's a denomination. Different parts of the same denomination follow different practices. Also, it shows it's not a practice of the denomination. But my Lord is right.

Justice Nagarathna: If it's not a matter of religion with regard to this non-entry, then you can always seek a civil relief.

Khamabata: I can always seek enforcement of the trustee because it's not a matter of.. it can't be a matter of religion if some people are out, some people don't... within the same denomination or the alleged same denomination.

Justice Nagarathna: Then file a suit for mandatory injunction.

Khambata: I don't need to is the other way round. I was always entering. If the current administration stops me, they would have to establish the exclusionary practice in a civil court. That's what the high court also seems to.....

Khambata: As a matter of fact, that is a finding of the high court, and they said no material was put before us to show that even a non-Zoroastrian cannot enter. Now, I must say in fairness to the other side, before, my lords, they produced a whole lot of material, and we have counted that. I am going into the facts of the case, but my lords may take it that there’s nothing in the material they produced which at all shows that there is anything in the religion that somehow prohibits, ostracises or excommunicates only a Parsi lady for intervarian. They have relied on certain texts, which is also wrong.

Justice Nagarathna: Secondly, whether this ban on the lady marrying outside her religion. Whether is it a matter of religion?

Khambata: No, I can quickly say it is not. And let me put it another way, the high court itself has found that even a Parsi lady marrying outside retains her religion. As a matter of fact, that's a finding of the High Court.

Justice Amanullah: Is your quote of Ratilal Panachand Gandhi correct?

Khambata: Yes

Justice Amanullah: Proved undoubtedly to the belief of the Zoroastrian community…a secular judge. Has a secular judge word used in the judgement?

Khambata: Yes, it has..

Khambata: Whether a practice of religion in a particular instance collides with a competing fundamental right under 14, 15, 21, 25, and if so, then how the doctrine of balancing or harmonious construction or double proportionality is to be applied to save the precise interests of the core of both competing fundamental rights? To that end, the precise interest of the core of the religion will necessarily have to be determined. I am coming straight to that.

Senior advocate Khambata is reading his submission and referring to previous landmark judgements to support his case.

Senior advocate Khambata continues his submission.

The nine-judge bench has started the hearing of the day 12.

The Supreme Court will soon start the hearing at 11:45.

Yesterday was day 11 of the hearing. The bench was hearing the submissions of counsels Gupta and Khambata.