Senior Advocate Sidharth Luthra on Thursday commenced submissions before the 9 Judge Constitutional Bench of the Supreme Court in the batch of matters concerning denominational rights and individual freedoms in Sabarimala Reference. He argued that practices such as female genital mutilation (FGM) and excommunication cannot claim constitutional protection where they infringe bodily autonomy, dignity and other fundamental rights.
Appearing for intervenors challenging the practice of FGM, Mr Luthra submitted that India’s constitutional framework recognises religious plurality while simultaneously permitting reform where necessary. Referring to the judgment in S. R. Bommai v. Union of India, (1994) 3 SCC 1, he argued that secularism under the Constitution requires protection both of religious tolerance and of the individual’s right to faith.
Mr Luthra argued that Article 25 primarily protects individual conscience and belief, and does not insist upon “doctrinal purity.”
He argued that courts must examine whether denominational practices are infringing individual rights. “Where the denomination goes beyond internal management and starts controlling the spiritual lives of members and constraining them in violation of fundamental rights, would that be permissible? No,” he submitted.
Drawing parallels between excommunication and FGM, Mr Luthra argued that both practices involve serious consequences flowing from religious diktats. Referring to FGM, he submitted that the procedure is carried out on minor girls around the age of seven and involves the removal of part of the clitoral skin.
Justice Joymalya Bagchi observed that the issue could independently be tested on grounds of public health and bodily autonomy. During the exchange, the Bench observed that FGM impacts the reproductive health and autonomy of women and minors. Justice B. V. Nagarathna remarked that the issue also touched upon morality.
The Bench also discussed whether refusal to comply with the practice could attract consequences within the community, including excommunication. While counsel on the opposite side disputed that refusal leads to excommunication, the Bench observed that mandatory religious dictates affecting minors may still invite constitutional scrutiny.
Mr Luthra argued that when denominational rights conflict with individual freedoms, constitutional protections must ultimately tilt in favour of the individual. He submitted:
“No denomination can seek constitutional protection which fails on the envelope of fundamental rights because of Article 25(1).”
Towards the conclusion of his submissions, Mr Luthra also referred to concepts of constitutional and social morality, arguing that constitutional adjudication must remain guided by core constitutional values rather than solely by prevailing social practices