Excommunication of Parsi Women: A Legal Analysis

Vallabhi Bissa[*]

Introduction

Recently, the Supreme Court of India issued a notice on a plea that challenged the practice of ostracizing Parsi women who chose to marry persons outside the Parsi community. The High Court of Gujarat in the case of Goolrokh Gupta v. Burjor Pardiwala, infamously held that when a Parsi woman marries a non-Parsi person under the Special Marriage Act, 1954, she ceases to be a Parsi unless she obtains declaration from a competent court stating that she has continued to practice her religion even after marriage. Upon the challenge of this judgment by the petitioner, the Supreme Court tagged this case to the Sabarimala review petitions citing the similarity of issues, which then drew attention to the Zoroastrian practice of prohibiting the entry of women who chose to marry persons from other religious faiths into sacred institutions of the Parsi community. This blog post seeks to discuss the test of “essential religious practices” and is a critique of the judgment of the High Court of Gujarat.

Analysis of the Judgment

This judgment of the Gujarat High Court is criticized herein on three grounds. First, it goes against the basic tenet of equality enshrined and unequivocally mentioned in Article 14 of the Constitution of India. A Parsi man married to a non-Parsi woman does not face ostracization of any kind and is allowed to enter sacred institutions of the Parsi community. This differential treatment of men and women does not derive its authority from any sacred text of Zoroastrianism.

Second, the judgment infringes upon the fundamental right to religious freedom and identity of Parsi women granted by Article 25 of the Indian Constitution. In Ratilal Panachand Gandhi v. The State of Bombay, the Supreme Court stated that Article 25 guarantees to every person the freedom of conscience and the right to profess, practice and propagate one’s religion. Third, the High Court’s judgment is in direct opposition to the very object behind enacting the Special Marriage Act which finds utterance in the dissenting judgment by Justice Kureshi i.e., to facilitate inter-religious marriages without individuals having to forgo their respective religious identities.

To strike this practice down as unconstitutional, such practice must firstly, qualify as a law as defined under Article 13(3) of the Constitution of India. Article 13(3) provides for the recognition of “customs and usage” as law that if found in derogation of fundamental rights, shall be deemed void. The High Court of Gujarat, in its judgment did not define whether this practice of ostracization falls within the purview of “custom” or “personal law” as mentioned in the Constitution of India. If this Parsi practice of excluding women is considered a “custom” in the courtroom, it may be struck down based on the rulings in the cases of Sant Ram & Ors v. Labh Singh and Smt. Amina v. Unknown. On the other hand, should this practice be categorized as personal law, it will not fall within the purview of Article 13(1) as mentioned in State of Bombay v. Naraso Appa Mali case and will be immune from judicial review. If the practice of excommunication qualifies as an essential religious practice i.e., very integral and essential to the religion, it would be protected under Article 25(1).

It is imperative to take a closer look at this doctrine of “essentiality”. In the case of Sardar Syedna Taher Saiffuddin Saheb v. State of Bombay, the Supreme Court of India employed the “essential religious practices” test to uphold the power of excommunication conferred to the head priest of Dawoodi Bohra community, and to strike down the Bombay Prevention of Excommunication Act, 1949 that prohibited such essential practice.

This doctrine of essentiality was developed by the Supreme Court in the Shirur Mutt case in 1954. Over the years many scholars have criticized the subjective authority of courts and this doctrine along the lines that it is not for the judiciary to determine which practices or beliefs constitute the “essentiality” of any religion. If it is, then it amounts to moral judgment, a concept which is alien to liberal democracies. The High Court of Allahabad in Afzal Ansari v. State of Uttar Pradesh employed this doctrine and held that the right to offer Azan is protected under Article 25 of the Indian Constitution as “Azan may be an essential and integral part of Islam”. There are two reasons why this doctrine is in tatters. First, lack of strict methodology developed by Indian courts over the years. Second, the difficulty posed by the large extent to which religion plays a major role in Indian society. Dr. B. R. Ambedkar during Constituent Assembly Debates remarked:

“The religious conception in this country is so vast that they cover every aspect of life, from birth to death. There is nothing which is not a religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill.”

The conjunction of custom or personal law and gender justice has always been a complicated question of law because its constituents are intertwined with each other in a very complex manner—examples of which are the Sabarimala case, Triple Talaq case or the case of entry of women in the inner sanctum of the Haji Ali Dargah. It is important to note that the object of theConstitution of India is to protect the minuscule and diverse identities present in the country. Now, it is upon the Hon'ble Supreme Court either to chart a course based on progressive interpretation of the law and to invalidate such practices which exclude individuals based on their gender or to stick to a narrow and rigid approach. Justice Chandrachud’s judgment in the Sabarimala case also advances such interpretation which takes forward the true vision of the Constitution; a vision that entails equality and freedom in all spheres of life.

[*] Vallabhi Bissa is a second-year law student at Maharashtra National Law University, Nagpur