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Three Other Cases Mentioned In Sabarimala Review Order

LIVELAW NEWS NETWORK
15 Nov 2019 4:35 AM GMT
Three Other Cases Mentioned In Sabarimala Review Order
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In its order passed in Sabarimala Review Petitions, the Supreme Court mentions about three pending cases before, in which there are some issues overlapping and covered by the Sabarimala Judgment of 28th September 2018. The following are the cases mentioned by CJI Ranjan Gogoi in his order. Two of them [Female Genital Mutilation and Parsi Women Religious Identity] are before...

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In its order passed in Sabarimala Review Petitions, the Supreme Court mentions about three pending cases before, in which there are some issues overlapping and covered by the Sabarimala Judgment of 28th September 2018.

The following are the cases mentioned by CJI Ranjan Gogoi in his order. Two of them [Female Genital Mutilation and  Parsi Women Religious Identity] are before the Constitution Bench of five judges, while the other [Muslim Women Entry In Mosques] is pending consideration before a three judge bench.

Entry of Muslim Women in Durgah/Mosque

Yasmeen Zuber Ahmad Peerzade vs. Union Of India [Writ Petition (Civil) No.472 of 2019]

The Court had issued notice in this matter in April 2019. This matter was last heard by a Bench of Justices SA Bobde, S Abdul Nazeer and Krishna Murari on 5th November. The plea seeks a direction to the government authorities and Muslim bodies to allow entry of Muslim women into mosques to offer namaz there. "Permit Muslim women to enter through the main door of mosques and have an Islamic right to visual and auditory access to the musalla (main sanctuary)," it said, adding that "any fatwa", restraining women from entering into mosques, of Muslim bodies be set aside. Another contention is that the alleged customary tradition is "unconstitutional and violative of Articles 14 (right to equality), 15 (gender justice) and 21 (right to life and liberty) of the Constitution". Read more about this here.

Female genital mutilation in Dawoodi Bohra community

Sunita Tiwari vs. Union of India [Writ Petition (Civil) No.286 of 2017]

In September, 2018, the bench of Chief Justice Dipak Misra, Justice D. Y. Chandrachud and Justice A. M. Khanwilkar referred to a five-judge bench the question of constitutionality of the alleged practice of Female Genital Mutilation (FGM) purported to be followed by the Dawoodi Bohra community in India.

Senior Counsel Abhishek Manu Singhvi has advanced arguments in favour of the practice being an 'essential' part of the Fatimid school of Islam on behalf of as many as 70,000 women of the said community. He sought a reference to a larger bench on the ground that in the past, questions of essentiality and integrality of a religious practice to a faith have always been adjudicated upon by a constitution bench.

The Petition, contends that the practice of khatna, as performed on every girl child within the Dawoodi Bohra religious community, does not have any reference in the Quran and is carried out without any medical reason. It thereby expresses anguish over the "the atrocity, bodily pain, in-humanness and mental torture faced by the girls and women of Dawoodi Bohra community for their entire life due to the unhygienic and illegal surgeries performed on their person for non medical reasons during their childhood." Terming it an "archaic ritual", it further contends that the practice is violative of Article 14 and 21 of the Constitution of India, submitting that the same encompasses the right of every child and woman to live with dignity, honour and without any deformity caused upon them by the others. Read more about this here.

Entry of Parsi Women married to a non-Parsi in the Agyari

Goolrukh M. Gupta vs. Burjur Pardiwala [Special Leave Petition (Civil) No. 18889/2012]

The essential challenge in this Special Leave Petition is against prohibiting Non-Parsi women married to men of other religions from entering Agiaris. The issue that will be considered in this case is regarding the religious identity of a Parsi woman after her marriage under the Special Marriage Act.

The present special leave petition arises out of the judgment dated March 23, 2012 of the Gujarat High Court. In the impugned judgment, the high court had upheld the decision on the part of the Valsad Parsi Anjuman Trust to restrain a Parsi woman from participating in the funerary rites of her father at the Fire Temple dedicated to Zoroastrianism on the ground that upon marriage to a Hindu man under the Special Marriages Act of 1954, the woman had ceased to be a Parsi and deemed to have converted to Hinduism.

The Supreme Court's five-judge constitution bench, headed by Chief Justice Dipak Misra, on Thursday permitted Parsi woman Goolrokh Gupta, married outside her community, to attend and participate in the funerary rites of her parents at the Fire Temple devoted to Zoroastrianism, having received the nod in that behalf from the Parsi Valsad Anjuman Trust. Read more about this here.

'Could Be' Issues In The Above Cases

Interestingly, while in seisen of Sabarimala Review Petitions, the bench has virtually framed the following issues, which could be arising in the other three cases.

(i) Regarding the interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.
(ii) What is the sweep of expression 'public order, morality and health' occurring in Article 25(1) of the Constitution.
(iii) The expression 'morality' or 'constitutional morality' has not been defined in the Constitution. Is it over arching morality in reference to preamble or limited to religious beliefs or faith. There is need to delineate the contours of that expression, lest it becomes subjective
(iv) The extent to which the court can enquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of the section of the religious group.
(v) What is the meaning of the expression 'sections of Hindus' appearing in Article 25(2)(b) of the Constitution.
(v) Whether the "essential religious practices" of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26.
(vi) What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination?

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