(Ed. Note: On the 7th of December, after a day of hearing, the Constitution Bench of the Supreme Court passed the following order: “In the course of hearing, regard being had to the facts and circumstances of the case, a suggestion was given to Mr. Gopal Subramaniam, learned senior counsel and Mr. Percy Ghandy, learned counsel appearing for the respondents to obtain instructions. Both of them, we must state, in all fairness, prayed for some time to obtain instructions.” The Court fixed the next date of hearing on the 14th of December. It is therefore unclear at present whether this case will go on, and whether it will be decided on the constitutional point. Nonetheless, on this blog, we shall discuss some of the important issues in the case, starting with the following introductory guest post by Vasudev Devadasan.)
Currently being heard by the Supreme Court, the Goolrokh case attempts to answer the question of whether a Parsi woman ‘loses’ her religious identity upon marriage to a Hindu man under the Special Marriage Act. The case stems from the events at a Parsi funeral, when the deceased’s daughter was denied access to the Agiari (fire temple) and tower of silence to perform the last rites for her parents. The trust and priests in charge of the Agiari claimed that the daughter, by marrying a Hindu man, could no longer be considered Zoroastrian and was not entitled to enter its places of worship. Ultimately, the petitioner in the Goolrokh case approached the Gujarat High Court requesting it to pass an order stating that: by marrying a Hindu man she had not renounced Zoroastrianism and in the event of her parent’s death, she would be allowed to access the tower and the temple to perform the necessary ceremonies.
The division bench of the High Court in its 2:1 decision held broadly as follows:
- A Parsi woman, who was born and raised Parsi and who has completed her navjote ceremony, upon marrying a Hindu man under the Special Marriage Act, would cease to be a Parsi, and would be ‘deemed and presumed’ to have acquired the religious status of her husband until a Court (after undertaking a fact-finding inquiry) declares that she has continued to practice Zoroastrianism.
- Because the petitioner is not a Parsi woman after marriage, and because the petitioner has not made any arguments for a ‘non-Parsi’ to be allowed into the Agiari, there is no need to make a ruling on whether the actions of the Parsi trust in denying her access to the place of worship are justified or not.
- While the freedom to practice any religion is indeed a fundamental right (under Article 25), religious denominations also have the right to manage its own affairs on matters integral to the religion (under Article 26). Until it is determined whether the issue of ‘non-Parsi’s’ being excluded from the Agiari is ‘essential or integral’ to the Parsi religion (which would grant the practice protection under Article 26), no writ can be passed.
One angle to approach the case is from the perspective of gender equality (a Parsi man marrying a Hindu woman does not lose his religious identity) and these arguments will undoubtedly be made eloquently elsewhere. But this post examines the first holding of the court from the perspective of religious identity. By accepting the argument made by the Parsi trust, that a woman is de facto excommunicated upon marrying a man from another religion, the court grants the leaders of a religion the final say on what it means to be Parsi. The reasoning of the High Court is also of interest. By holding that a woman’s religion is that of her husband’s after marriage, the High Court locates her religious identity in her family, not in her as an individual. Additionally, it creates a ‘deemed conversion’ for all women marrying men of a different religion in the absence of any religious ceremony or indeed consent of the woman. Lastly, it is worth looking at the Special Marriage Act from a historical perspective and see whether it is part of the Constitution’s transformative agenda on religion.
What does it mean to be Parsi?
The dispute in Goolrokh is whether a woman who was undoubtedly Parsi before marriage, upon marrying a Hindu man, loses her Parsi identity. Before asking the question: ‘is marrying a ‘non-Parsi’ antithetical to the Parsi religious identity’, a preliminary question is how does the Court decide what constitutes the religious identity of the Parsi religion? Is the interpretation of the religious leaders and community absolute or can an individual have views on her religion that are at odds with the community interpretation and yet be part of the religion?
The power of a community and its religious leaders to determine the content of a religion and the power to exclude those who are not in conformity with this content stems from the need to preserve integrity within the religion. Arguably, in the absence of conformity by its members to certain fundamental beliefs and practices, a religion would not be a religion. Thus, it might be argued that the views of religious leaders and the community are at the heart of religion, and have consequently been accorded protection under Article 26(b) (the freedom of a religion to administer its own affairs on ‘matters of religion’).
Alternatively, an individual may have views on their own religion that are at variance with that of the community or its religious leaders. This question is particularly relevant in India where religion often governs several day-to-day aspects of life and where the implications of being removed from one’s religion can have severe implications. In Goolrokh for example, a woman was denied access to her mother’s funeral. Imagine if a community were to believe that members had to dress in a particular manner, or display some outward symbol of religion at all times, could an individual be excommunicated for not complying? There is clearly a difference between apostacy (the total abandonment of a religion) and a level of reasonable disagreement within a religion itself.
In Goolrokh the High Court was faced with a woman who claimed that she had not lost her religious identity upon marriage to a Hindu and the Parsi establishment that argued she had. Indian courts have to a great extent conflated religious belief, and religious practice. Additionally, the courts have taken it upon themselves to determine the content of religious identity by delving into religious scripture and tenets. But such an approach inherently favours the communitarian interpretation over the individual. Belief is deeply personal, but practice is almost always social. Similarly, religious leaders have a monopoly on religious scripture and doctrine. By accepting the views of the Parsi trust the court is upholding religious views as experienced by the community and its leaders over that of the individual.
The legislature has often attempted to empower the individual’s experience of religion by banning excommunication, thus limiting the power of religious leaders to determine when an individual is not in conformity with the leader’s perception of the religion. The Bombay High Court in Saifuddin v Koicha held that it was permissible to deny a religion the power of excommunication (thus empowering an individual’s religious views vis-à-vis religious leaders) so long as it does not take away the power to exclude ‘non-believers or renegades’ who would undermine the cohesive force that defines a religion. In the Supreme Court, this view was overruled, and the power of the community and its leaders to preserve solidarity and ‘maintain discipline’ within a religion was given paramount position. As noted above the preservation of the cohesive force within religion is constitutive of religion and certainly has its place, yet this needs to be balanced with an individual’s own experience of that religion, for it is in the dialectical relationship between the two that religion truly emerges. We will have to wait and see whether the Supreme Court attempts to strike such a balance in Goolrokh.
Locating a woman’s religious identity
In its judgement, the High Court notes that in the absence of any law by Parliament, a woman’s religious identity ‘shall merge into that of her husband’ and that such a rule is ‘generally accepted throughout the world’. The court relies on Lallu Bhoy v Cassibai which states, “the lady, on marriage becomes a member of the family and thereby she becomes a member of the caste to which she moved.” The substantive justifications that the court points to are (1) after marriage the husband’s family name is used to describe a woman’s identity, and (2) if a woman’s religious identity did not merge into her husband’s, it would be hard to determine the religious identity of their children. Most tellingly however, the court describes the dispute in Goolrokh as examining the “rights of the woman in the context of family which originates from marriage of a husband and wife.”
Firstly, the court has already conflated a woman’s religious identity with her caste. But that is a discussion for another time. As Jacohbsohn notes, ‘India is heir to dual legal and political traditions, one making individuals the basic unit of society and envisioning universal equal citizenship, and another positing groups as the building blocks of society with particular rights attached to collective entities.’ However, by locating a woman’s religious identity in the family, and not the individual, the court has effectively made a woman’s religious identity conditional on her husband or father. This runs in direct contradiction to the text of Article 25 which states that “all persons” have the freedom to practice a religion of their choice, thus vesting the right in the individual.
Lastly, the implication of the court’s reasoning is this: upon marriage a woman is deemed to convert from one religion to another. The Supreme Court has noted on several occasions that adopting a religion is a solemn act, often premised on religious ceremony (e.g. baptism, navjote). However, the court appears to overlook these requirements when it comes to the ‘deemed conversion’ by marriage that it postulates.
An evolving constitutional landscape
It stands to reason that personal religious law would not recognise an inter-religious marriage. In 1872 with the enactment of the original ‘Special Marriages Act’, inter-religious marriage was recognised for the first time in India provided that both parties made a declaration to not profess any particular religion. In stark contrast, Section 4 of today’s Special Marriages Act makes no mention of religion in listing out the conditions for a valid marriage. In his dissenting opinion as part of the division bench that heard Goolrokh, Justice Kureshi specifically cited the shift from the 1872 Act to the modern-day legislation, concluding that the legislature had specifically provided for the recognition of inter-religious marriage without the need for either spouse to renounce their religion or convert to the religion of the other.
In reaching this conclusion he also noted that the current Special Marriages Act was a ‘reflection on the post-independence constitutional philosophy of a secular state’. In most senses the Constitution is radically transformative when it comes to religion. From the abolition of untouchability in Article 17 to the throwing open of Hindu institutions to all castes under Article 25(2). The constitutional text envisions a secular identity that the constitutional practices of the population have not necessarily caught up to. It is precisely these constitutional practices that the a-religious requirements for marriage in the Special Marriage Act allow to develop. By allowing individuals to marry without commenting on their religious identity, the Special Marriage Act invites citizens to participate in developing the constitutional practices of the day. As Jacobsohn notes: ‘Incrementalism is thus part of the spiritual core of Indian secularism, reflecting the cohabiting reformist and the conservative components of the Indian national identity’.
Goolrokh promises to be an intriguing case that throws up several key constitutional questions, not just on the issue of gender equality between a woman and a man, but on how the religious identity of an individual is determined. Religious identity undoubtedly lies somewhere on a spectrum between communitarian and individualistic. Indeed, as noted above, it is the dialectical relationship between the two that creates the religious experience. Whether the Supreme Court is willing to move the religious identity away from the communitarian absolutism of the Parsi trust and accommodate the individual’s views on religion is likely to be a turning point in the case.