Can the rights of an individual be curtailed by a minority institution for the purpose of maintaining arcane, regressive religious practices? The Supreme Court will answer this question when it takes up the Goolrukh case. By SAGNIK DUTTA

ON December 29, 2008, Dilbar Valvi, a Parsi Zoroastrian woman who is married to a non-Parsi, lost her mother. The grief from this sudden loss was compounded by the harsh decision of the local Parsi trust to prevent her from performing and even attending the last rites of her mother conducted at the tower of silence in Valsad in Gujarat. Goolrukh M. Gupta, another Parsi Zoroastrian woman who is married to a Hindu, took up the cause of Dilbar Valvi with the trustees of the Valsad Parsi Anjuman Trust only to be informed on December 26, 2009, that a binding decision had been taken to stop Parsi Zoroastrian women who were married to non-Parsis from attending religious ceremonies in a Parsi agiary (fire temple).

Subsequently, Goolrukh Gupta filed a special civil application with the Gujarat High Court in January 2010 seeking issuance of a writ against the trust to allow the petitioner or any other Parsi Zoroastrian woman married to a non-Parsi to enter and worship at the fire temple and perform funeral ceremonies at the tower of silence.

The High Court, in a judgment dated March 23, 2012, rejected the petition and ruled that in an inter-religious marriage under the Special Marriage Act, 1954, the wife automatically converts to the religion of her husband. On July 15, 2013, the Supreme Court admitted a special leave petition challenging the High Court’s judgment on the grounds that it violated the constitutional right guaranteed to the individual under Article 25 to freely profess, practise and propagate religion. The petition in the Supreme Court also states that the High Court completely disregarded the piece of legislative intent of the Special Marriage Act as a progressive legislation meant to enable two persons belonging to different religions to get married without either having to renounce his or her religion or convert to the religion of the other person.

The present petition in the Supreme Court has brought to the fore the conflict between freedom of religion of the individual and the autonomy of religious minority institutions to manage their affairs. The petition, along with about 20 intervention applications filed in the Supreme Court, signals the rise of a progressive movement within the Parsi community to counter arcane religious practices. Interestingly, the religious practices in themselves are not uniform across the country and there are examples of trusts that are progressive and favour women’s rights. For instance, the trusts situated in Delhi, Pardi, Kanpur, Chennai, Jabalpur, Allahabad, Daman, Chikhli, Jamshedpur, Kolkata, Vadodara, London, Ontario (Canada), Florida and Chicago do not prohibit Parsi Zoroastrian women married to non-Parsis from participating in religious functions and ceremonies.

Religious freedom and women’s rights

The majority judgment in the High Court concluded that a woman got automatically converted to the religion of her husband in an inter-religious marriage. The judgment said: “A born Parsi woman by contracting civil marriage with a non-Parsi under the Special Marriage Act would cease to be Parsi and she would be deemed and presumed to have acquired the religious status of her husband unless declaration is made by the competent court for continuation of her status of Parsi Zoroastrian after her marriage.”

This judgment has significant implications for women’s rights as well as the fundamental right to profess and practise religion guaranteed under Article 25 of the Constitution.

Shiraz Patodia, advocate on record and petitioner in the Goolrukh Gupta case in the Supreme Court, told Frontline: “This interpretation of the Special Marriage Act will set a bad precedent and adversely impact women’s rights. About 20 intervention applications have been filed in the case by people who can be affected by this judgment.”

The petition argues that the High Court disregarded the progressive intent of the Special Marriage Act. It also argues that the lower court’s judgment violates the woman’s fundamental right under Article 25 to freely profess, practise and propagate religion.

An intervention application filed by Lawyers’ Collective on behalf of the noted theatre director Feisal Alkazi and his wife argues that though the High Court verdict has been passed against an individual, it affects all women irrespective of their religion who are married or will get married under the Special Marriage Act. The applicants, a Hindu and a Muslim married under the Special Marriage Act, have stated that they were aggrieved by the impugned order and the judgment. The intervention application also states that the High Court order violates the right to equality under Article 14 of the Constitution as the trust in question permits a male Parsi married to a non-Parsi all the rights and privileges of the Parsi Zoroastrian religion.

Customs and reform

Interestingly, in the present case, several progressive voices have emerged from the community and they are aligning themselves with the cause of equal rights for women. After this case came to the forefront, about 20 letters of support were issued from across Parsi trusts stating that they were in favour of a Parsi woman married to a non-Parsi being allowed to take part in all religious ceremonies and that the trusts did not believe in any form of discrimination against Parsi women in inter-religious marriages. Some of the trusts that expressed their support are the Delhi Parsi Anjuman; the Madras Parsi Zarthosti Anjuman; the Parsi Anjuman, Jabalpur; and the Jamshedpur Parsee Association. Copies of these letters are available with Frontline.

The High Court was to address vital concerns of freedom of religion of the individual guaranteed under Article 25. The questions before it were the right of a Parsi woman married to a non-Parsi to attend and pray at the fire temple, to participate in the funeral ceremonies at the tower of silence, and the right to have her own funeral at the tower of silence. Trustees of the Valsad Parsi Anjuman curtailed Dilbar’s rights, arguing that she being a non-Parsi was not entitled to such rights. The High Court had held that there was not enough evidence on record to suggest that this practice of prohibition was an integral part of the religion and, therefore, could not take a view on the fundamental rights available to the woman.

The Supreme Court has to address the vital concern about whether the rights of the individual can be curtailed by a minority institution for the purpose of maintaining arcane, regressive religious practices. The existence of a number of trusts across the country that allow equal religious freedoms to Parsi women married to non-Parsis amply points to the existence of progressive thinking within the community. It remains to be seen whether the Supreme Court will align itself with these voices.

Another significant question raised in the High Court judgment was whether the writ petition against a private trust was maintainable. The court observed that if a violation of the fundamental right to freedom of religion was committed by a private party, as in the present case, then the relief was to be sought before a civil court.

More expansive interpretation

The present petition in the Supreme Court, however, argues for a more expansive interpretation of public functions. The petition argues that a private body performing a “public function” should be held to the same constitutional standards regarding civil rights and equal protection of the laws that apply to the state itself. It further argues that the administration of the tower of silence was in the nature of a public function, and the private rights of the trust must, therefore, be exercised within constitutional limitations.

When the Supreme Court hears the petition in February next year, significant questions regarding women’s rights vis-a-vis religion, limits to the autonomy of minority institutions, and pro-reform interpretations of religion are expected to come up. It remains to be seen whether the court will provide an impetus to the progressive voices in the community.