Entitled to enter? — II

"Why inflict a retrograde custom on a community?” In modern day India a woman is as much a citizen of the state as a man. Why should she be considered only as a wife or daughter with the husband’s or father’s names added to hers? questioned counsel Percy Kavina when arguing before the three-judge bench of Justices Jayant Patel, Akil Kureshi and R. M. Chhaya in the Goolrookh Gupta case in the Gujarat High Court on August 25, 2011.

The Valsad Parsi Anjuman, as the respondents, had noted that among Zoroastrians, a girl from a behdin family would get the prefix of osta were she to marry into a priestly family, thereby indicating that she foregoes the status she had acquired on birth. A boy though would continue to retain his title until death, showing that there are different norms applicable to the two sexes. Countered Kavina, there was a time when no girl from a behdin family would be given in marriage to a boy from an athornan (andhiaru) family but such practices are no longer applicable. To him it only reflected "a mindset that a woman is a chattel to be owned by her father or husband.”

When Kavina mentioned that in Himachal Pradesh police officers now drop their surnames, Patel added that the film Arakshan too shows that a surname is not essential for an individual to prove himself/herself.

In the intervening period between the hearing on August 25 and the preceding one on August 11, the respondents had filed an affidavit claiming that the petitioner’s change of name from Goolrookh to Neha prior to marriage was indicative of her voluntarily renouncing her Zoroastrian religion. Declaring that he would treat this argument "with the disdain that it deserves,” Kavina dared his opponents to question his Zoroastrian adherence because his name ‘Percy’ was non Zoroastrian. He further sought to know whether their affidavit demanding to know how Goolrookh got married, who were the witnesses, under which section of the Special Marriage Act (SMA) the marriage was registered, could be permitted at this late stage particularly since two weeks ago the respondents had objected to Goolrookh’s affidavit enclosing responses from 10 anjumans in India and five overseas which stated that they permit Zoroastrian women married out of the community entry into their fire temples. He was surprised that they had "conveniently forgotten” their refusal to accept the petitioner’s affidavit, more so since it had been filed in response to the court’s enquiry. According to Kavina, "It is too late in the day to question her marriage.”

This made Patel interject, "No one is challenging your marriage.” As Kureshi quipped, "First they were saying she is not Parsi after marriage. Now they are stating she was not Parsi before marriage.” Counsel Sharad Vakil on behalf of the respondents informed the judges that the plaintiff’s sister who is a partner in the legal firm of Dua and Company had herself made a statement that Goolrookh had changed her name to Neha three months before marriage. Kavina kept repeating that their faulting her change of name indicated that they were being "sexist… blinkered… backward looking.”

Elaborated Kavina, "She was married under the Special Marriage Act of 1954 and not 1872.” The earlier Act expected the bride and groom to declare that they were not following any of the major religions then professed in India and were thus entitled to be governed by the provisions of the Special Marriage Act of 1872. The amended Act of 1954 is applicable to those who undergo a marriage according to some religious rites but choose to register under the SMA under section 15 or those who register after a civil marriage under section 13.

In Goolrookh’s case it was "a pure civil marriage under section 13 of the SMA,” maintained Kavina. One of the witnesses was her father. She has signed as Goolrookh and not Neha. "Even if a Hindu priest was present and recited some mantra, does it mean that she has renounced her religion? The burden to prove that she has renounced her religion is on the respondents,” he insisted.

The principle of parity between male and female heirs of Parsis who have died intestate is now even recognized in the amended Indian Succession Act, Kavina reminded the judges.

He cited Parsiana, "the only magazine in the community that records births and marriages,” to indicate rising incidence of interfaith marriages as compared to "pure ones.”

Patel’s assertion that "Everyone is pure,” made Kavina comment how some in the community like to believe that they are more pure to assuage their ego. "Racial purity is a form of racism,” he summed up, wondering whether "racial purity can be determined on fair skin or long nose.”

Jested Patel, "Long enough to poke into others’ affairs?”

Kavina: "Yes, including religious affairs.”

Even if there is a custom or usage that a woman married out of the Zoroastrian faith is denied her religious rights, such customs are "offensive to the right of equality of gender.” If an intermarried Parsi man faces no discrimination why should a Parsi woman?

Alluding to the affidavits by some high priests to shore up the respondents’ arguments, Kavina insisted, "Parsis don’t have a system of one high priest with religious rights over the entire community… These are only opinions by individuals for which there are counter-opinions. There is no scriptural evidence. There are no religious, authoritative texts to back up their arguments.” With one of the high priests stating that after her interfaith marriage Gool­rookh "has lost her religious identity as a Zoroastrian,” Kavina demanded, "What does he want her to do? Do her kusti in front of him?”

Since the Ahmedabad Panchayat is known to be orthodox, unlike its neighbor Baroda that is known to adopt a liberal approach, permitting their priests to perform ceremonies for families of interfaith unions, Kavina gleefully referred to Baroda as "notorious.” When Patel enquired why they were being described as "notorious,” Kavina explained that he was seeing them through the eyes of the respondents for whom being an "orthodox is a matter of pride, being a liberal is a slur, and being a ‘convertist’ is the worst possible crime.”

Commending the vision of the founding fathers of the Indian constitution who sought to remove discrimination, Kavina noted, "Discrimination is violative of fundamental rights and freedom.” Stressed Kavina, "Secularism is the basic feature of the constitution… Liberty, equality, fraternity are not three separate principles enshrined in the constitution... An egalitarian social order is a prerequisite of secularism. Intercaste, interreligious and interregional unions would help to promote national unity…”

To reinforce his case that a violation of right can be redressed by a writ petition, Kavina cited the case of Zee Telefilms vs Board of Control for Cricket in India (BCCI) over the issue of telecasting rights. The BCCI contended that it is not a state and therefore the writ was not maintainable whilst Zee Telefilms asserted that BCCI was performing a public duty. Applying that logic to the present case, Kavina stated that entry to a temple is by its nature a public right… all Parsis have a right to go to the agiary.”

Preempting the respondents’ claim that courts cannot decide on religious issues, Kavina cited the case of Seshammal vs State of Tamil Nadu where it was argued that what constitutes an integral or essential part of a religion or religious practice is to be decided by the courts with reference to the doctrine of a particular religion.

"There are two aspects of religion, true religion and religio­nism,” Kavina read from Justice Ramaswamy’s judgment in A. S. Narayana Deekshitulu vs State of A.P. where the hereditary right to appoint an archaka (priest) was contested in court. As noted Rama­swamy, "True religion is spiritual religion, that which seeks to live in the spirit, in what is beyond the intellect, beyond the aesthetic and ethical and practical being of man, and to inform and govern these members of our being by the higher light and law of the spirit. Religionism, on the contrary, entrenches itself in some narrow pietistic exaltation of the lower members or lays exclusive stress on intellectual dogmas, forms and ceremonies, on some fixed and rigid moral code, on some religio-political or religio- social system. Not that these things are altogether negligible or that they must be unworthy or unnecessary or that a spiritual religion need disdain the aid of forms, ceremonies, creeds or systems. On the contrary, they are needed by man because the lower members have to be exalted and raised before they can be fully spiritualized, before they can directly feel the spirit and obey its law… all must have an equal right to plead and in a manner of such directness and simplicity that every human being can approach the doors of the eternal with equality and with equal access and thereby exercise greater freedom in his own life.”

In yet another case, Sardar Syedna Taher Saifuddin Saheb vs The Estate of Bombay the court held that excommunication offends Article 25 that protects religious freedom and was therefore declared unconstitutional.

"In a pluralistic society like India… there are numerous religious groups who practise diverse forms of worship or practise religions, rituals, rites, etc… To one class of persons a mere dogma or precept or a doctrine may be predominant in the matter of religion; to others, rituals or ceremonies may be predominant facets of religion; and to yet another class of persons a code of conduct or a mode of life may constitute religion. Even to different persons professing the same religious faith some of the facts of religion may have varying significance... The court, therefore, while interpreting Articles 25 and 26 strikes a careful balance between the freedom of the individual or the group in regard to religion,” differentiating what is essential and integral, and that which is not, to permit the state to regulate or control in the interest of the community.

Whilst reiterating, "Judicial review should be exercised to supplement changing social needs,” Kavina quoted renowned laywer Dr K. M. Munshi who had earlier declared, "What has personal law to do with religion?... We must put our foot down and say this is not religion.” Continued Kavina, "This putting down of the foot is what the practitioner requests your lordships… Religious tolerance is the bedrock of Indian secularism… Time has come for a change… Gender equality is as much a right. If a man is not excluded (from a fire temple), a woman cannot be.”

The next hearing is scheduled for September 8, 2011 when counsel Sharad Vakil will argue on behalf of the Valsad Parsi Anjuman.