INTRODUCTION
The highly publicized case of Goolrokh Gupta v. Burjor Pardiwala (hereafter, “the Goolrokh Gupta case”) received an interim order on 14th December 2017.1 The Supreme Court (“SC”) congratulated the parties for having arrived at an amicable solution but shelved the larger constitutional issues for a later time. Meanwhile, this case, especially the verdict of the Gujarat High Court (“GHC”) has been extensively analysed and declared as anachronistic and patriarchal.2
However, there is a serious gap in the existing corpus. Only selected parts of the GHC’s majority decision has been analysed. Neither the dissenting opinion, nor the SC’s interim order have been subjected to extensive academic scrutiny. At best, commentators have remarked that the latter order is commendable on humanitarian grounds, but attracts criticism for ‘kicking the bucket down the road’.3 Rigorous scrutiny of the lines, and the narrative being framed between the lines, will enable development of a more informed view about existing narratives and thus, methods to problematize such narratives.
These narratives do not exist in a vacuum. They are shaped not just by centuries of precedents, but also discussions outside the courtroom. There have been few efforts to tie such discussions explicitly to the GHC and SC’s decisions. Yet, the former hold the key to understanding and contextualising the latter and to progress reformist agendas beyond patriarchal doublespeak.
This article attempts to expose the invisibilised discourse, to problematize it and thus propose a way forward. I begin by postulating the research problem; devising research questions; exploring those questions by using Feminist Critical Discourse Analysis (“FCDA”), the use of which I justify in my Methodology section. I proceed to briefly discuss the various decisions over the years, whose rationes decidendi manifested in the GHC’s decision. Subsequently I proceed to classify the various narratives apparent in the GHC’s decision; Mrs. Gupta’s arguments in the Special Leave Petition (“SLP”); oral observations by the SC; and in the interim order. Subsequently I discuss conventional strategies at combatting dominant discourses, their drawbacks, and my proposal of devising a new counter-narrative inspired from Bartlett’s seminal work, Feminist Legal Methods.4 I conclude by describing my hopes of success by utilising this proposal.
LIMITATIONS
The Goolrokh Gupta case is still pending final adjudication. Consequently, my analysis is provisional. Nevertheless, whatever the outcome be my analysis may still retain relevance, since it focuses more on discursive trends than on final outcomes.
Since FCDA relies primarily on textual materials, it may not fully reflect the lived realities of people. Nevertheless, this does not take away from the relevance of my findings: this article was never intended to replace empirical analysis, but to complement them and arrive at a more holistic understanding of this issue.
FINDINGS AND ANALYSIS
Genealogy of narratives:
In 1908, the Bombay HC held that Parsis were a different race; that although one could convert into a Zoroastrian (something which Indian Zoroastrians had not done previously), trusts made for the benefit of Parsi Zoroastrians could not be for their benefit.5 This argument separated race (once perceived as a purely biological characteristic) from religion.
In another case, the SC reversed the decision of Bombay HC with respect to the validity of the Bombay Prevention of Excommunication Act, 1949, observing that the Constitution protected all that is an essential part of a religion, to be determined based on the doctrines of that religion and the practices which the community regards as part of its religion.6 This was only one in a long line of cases7 that shaped what is called the Essential Practices Doctrine, which Fali Nariman describes as a ‘three step inquiry’: whether a test is religious; whether it is essential; and lastly, whether it is ‘in line with constitutional limitations’.8
These two judgements were among the many that shaped the judicial narrative enabling justification of what was to come in Goolrokh Gupta.
Dominant Grand Narratives
The rhetoric may be framed as: religion is not an individual choice, but the characteristic of the community. The supreme necessity of a community is stability and continuity. Consequently, women’s religious identity is subsumed into that of her husband.
The narratives can be classified into the interlinked concepts of merger, community, historical legitimacy, and strict interpretation.
The narrative of Merger argues for the merger of the wife’s spiritual and religious identity with that of her husband.9 Although the GHC derived support from English common law, they also derived the idea from the apparently commonsensical logic of Community.
The Community narrative highlights the ‘undesirable’ consequences of allowing husband and wife to retain separate religious identities. Not only would the children of such an inter-religious union be adversely affected due to an ‘ambiguous’ religious identity, 10 but there arise risks of community fragmentation if one member follows an entirely different religion compared to the rest. Consequently, although every person has a right to profess and propagate religion, whether (s)he is entitled to enter a place of worship is to be determined by the religious denomination or section thereof.11 This however does not apply to Parsi men marrying non-Parsi women apparently.
The Historical Legitimacy narrative seeks to justify such discriminatory anomalies.. The distinction was ascribed to having been “historically recognized for centuries…”.12 Moreover, Goolrokh Gupta having changed her name to Neha was evidence of intention to convert to Hinduism, since “historically women obtained their husbands’ surname after marriage”, which caused the religious identity of the wife to merge into that of her husband.13 The burden of proving to the contrary lay on the wife.14 But how does historical legitimacy fare in the face of statutes, such as the Special Marriage Act, or in the face of the Court’s authority?
The Strict Interpretation Narrative prefers to interpret the provisions of the Special Marriage Act strictly as per wording. That the “…rights… protected by… section 20 are for succession to any property and not for any other rights as may be available under any law or usage in force”.15 Thus, “the right to profess the religion…or identity as per religion is not protected by virtue of Section 20”.16 This logic is utilised to argue that the Special Marriage Act does not enable one to maintain a separate identity after marriage.
Technicality served the dissenting opinion’s crutch, too, in dismissing Goolrokh’s petition: the respondent Trust being neither a State nor performing any public duty or function, the Court had no ability to interfere in its affairs.17 Furthermore, even if it could interfere, it was not its duty to mandate disavowal and abandonment of hazy or anachronistic customs, provided they were not contrary to public health, morality or order.18
Feminist Counter-Narratives
The major counter-narratives are: autonomy; equality; dignity; and delegitimization.
The Autonomy against Majority Narrative argues that marriage cannot automatically extinguish another’s religious identity. There is no obligation to relinquish religion, as evident from the non-obstante clause in section 4 of the Special Marriage Act.19 Furthermore, if marriage could subsume the religious identity of the wife, and even determine the children’s religious identity, then their right to profess their own religion is being violated. Community diktats cannot override an individual’s autonomy. Yet, by placing the burden of proof on wife, the courts were perpetuating gendered violence. This is aptly reflected in the questions presented in the SLP:
Whether a court can create a deeming fiction whereby a person not considered fit for admission to a particular religion by a particular religious community is thrust into the community by the mere fact of marriage to a member of such community;20
Whether the court can create a deeming fiction that compels every woman who does not intend to adopt her husband’s religion after an inter-religious marriage to file legal proceedings and lead evidence therein to establish that she continues to practice the same religion that she did prior to such marriage and to obtain a declaration to that effect?21
By applying the test of Essential Religious Practice(s), the court assumes the “theological authority to determine which tenets of faith are ‘essential’”,22 and erroneously invokes “ambiguous history”23, which when combined with the “normative values of the elite”24 judges, results in choosing the majority version, or alternatively, what it wants the religion to look like.25:
Next is the Equality and Double Standards Narrative. Rules which permit entry to men who have married outside their religion, but not women, highlights a double standard. Custom, and particularly Essential Religious Practice, becomes a shield, just as it did in the Sabarimala dispute.26
Thirdly, the Dignity Narrative emphasises the Fundamental Right to live with dignity, and how a person being denied even the opportunity to attend, much less perform, their parents’ final religious rites solely because of their marital choice, violates dignity: for humans, being social animals, and dignity, being not just an individual affair but how one is perceived by others, is significantly affected. Any practice that prevents persons from performing their parents’ last rites or even remaining present when such rites are performed would be opposed to the basic human right to live with dignity.27
Fourthly, the Delegitimisation Narrative attempts to subvert established customs and hierarchies by highlighting how the respondents’ witnesses, three high priests, had on previous occasions pointed out that there was no bar to Parsi women marrying non-Parsis to enter the fire temple.28 There is no legitimate evidentiary proof that Parsi women married to non-Parsi men were barred from entering the fire temple.29 The Special Marriage Act was also weaponised to highlight how severance from undivided family was different from losing one’s religious identity.30 Moreover, why is the presumption that the religious identity is lost, and why is the burden of proof not on the men but on the women?31
Local Stories:
In this context let us examine the lived experiences of those most affected: Parsi women with interreligious marriages.
The interim order, dated 14th December 2017, makes no mention of the arguments of either party, but instead takes on a congratulatory tone. It praises the respondents’ counsel for serving the “cause of immediacy” by persuading their clients to propose a stopgap measure. By prioritising the short term over the long, the court perpetuated an injustice that is reflected in local stories. Goolrokh Gupta wasn’t the only one, but she was one of the few whose voices managed to be heard due to expending tremendous financial and emotional resources in continuing a longstanding legal battle. There are however several instances of women who could not, who were severely affected by the status quo and remain so.32
There is another aspect. The SC spoke about the need to balance individual and community rights. These ‘community rights’ have a different meaning on the ground, where it is associated with demographic fears—for example, Mumbai’s Parsi-only Ripon Club refused to admit Parsi women as full members simply because their non-Parsi husbands “could take over the club’s management”.33 Women who have married outside their community are perceived as having tried to assert their identity as a Parsi Zoroastrian only to obtain access to community resources and benefits.34 Moreover, their marriage outside community is also treated as an act of betrayal, of abandoning their community in the face of demographic decline.35
It is in this respect that we compare this with oral arguments and observations in the SC. The CJI’s suggestion that Indira Jaising restrict herself primarily to the argument on equality; Ms Jaising’s reply that all rights must be protected; the CJI’s comment on the need to balance rights between individual and community; and Ms Jaising’s response that Fundamental rights were conferred primarily on individuals. 36 All four of these instances that utilised one or the other narrative—especially Ms Jaising’s use of feminist counter-narratives- highlight a disjuncture with the lived realities of Parsi women.
Every social situation or circumstance does not translate into a judicial response, but every judicial action has some social significance. The GHC’s decision, by reinforcing and legitimising the status quo, essentially used law and religion to resolve a demographic anxiety. Women’s bodies and their rights over marriage and reproduction became a tool for declaring the validity of traditional majoritarian norms. Furthermore, while the GHC judgement stripped the petitioner of the dignity to define her religious identity for herself, the SC, too, failed to fully restore her dignity. Goolrokh Gupta’s ability to attend her parents’ last rites remained a gift presented by a benevolent patriarchy rather than a constitutional entitlement. The SC thus failed to fulfil its duty as guardian of an inclusive Constitution.
SUGGESTIONS FOR FURTHER RESEARCH:
1. How caste, class and gender of judges of Indian Constitutional Courts determines judicial outcomes in family law disputes, especially with one or both parties belonging to marginalized communities.
2. Investigating scope for implementing feminist legal methods in judicial decision making, especially in family law disputes.
RECOMMENDATIONS
Reforming women’s (non)access to community spaces is not feasible through conventional strategies alone. A discussion of the latter would better highlight the lacunae and thus contextualise my proposal for a more feasible strategy.
The conventional methods I speak of are statutory reforms and mediation/alternative dispute resolution mechanisms.
Statutory reforms include proposals to amend the Special Marriage Act to clarify that women’s religion is not dependent on their marital status, and legislation relating to trusts and other such properties to include provisions explicitly permitting all individuals, including women who have married outside their community, access to community spaces. Non-compliance with statutory provisions and continued gendered discrimination would attract strong legal sanctions, including, inter alia, the revocation of the license/authority of the administrator(s) of that shared community space to govern that property.
This proposal suffers from three problems. Firstly, it risks being criticised as excessive State interference in religious affairs. While counter-narratives of discrimination being contrary to Constitutional principles could mitigate that criticism, they bring in another problem. The Second problem concerns judicial proceedings. Even if discrimination is perpetuated, few people have the means to access the Constitutional Courts. Even if they are able to do so, the decision would most probably come after several years, becoming more of a moral victory than a practical one; moreover, the ruling would be binding only on the parties to the suit, so other institutions may have no incentive to reform. Furthermore, fact-finding inquiries by courts into such affairs mean that the court may award relief only to the specific party to the suit, and hence they are of no utility to others. Thirdly, while court proceedings are underway, the woman/petitioner remains within the same community and is thus vulnerable to social ostracism for complaining against the diktats of community patriarchs and priests.
The Second proposal would be community-mediated resolution processes. This could be similar to what happened in Goolrokh Gupta, where the trustees negotiated with the petitioner and allowed her to attend to her parents’ last rites. This has two problems. Firstly, the existing (socio-political-economic as well as religious) power differential between the individual and community leaders ensures that the woman will likely obtain a worse bargain. Thus, instead of eliminating it entrenches power asymmetries. Secondly, it forces women to negotiate, rather than assert their rights. Instead of demanding something as of right, the woman has to negotiate for a ‘gift’.
Both approaches rest on a flawed assumption: that the dispute is always between a homogenous and unified community against multiple, but isolated, ‘disgruntled’ individuals. Such a framing resists the creation of more nuanced strategies.
The solution I propose is reframing the dispute itself. This may be done in two steps.
The first step involves delegitimising the unequivocal nature of community voice and thus reflecting internal diversity. This is quite feasible, especially in the Parsi Zoroastrian context, in the absence of canonical texts and reliance on ‘derivative’ texts, the veracity of which is debated even among the Zoroastrian clergy. This is largely in line with Bartlett’s idea of ‘feminist practical reasoning’ which “fundamentally challenges this legitimacy of the community and its norms, arguing that there are multiple, overlapping communities to which one can look to, for norms and reasons…No one community is thus legitimately entitled to speak for all others”.37
Once the equivocality of the community has been established, that the apparent monolith is actually equivocal, there can be two discursive interpretations: first, that either no voice is legitimate; second, that all voices are equally legitimate. The first interpretations proved Constitutional courts with a free hand to craft secular rules governing entry into community spaces. The disadvantage would be that a male-dominated judiciary may nevertheless prefer more ‘traditional, conservative’ interpretations that abstain from granting women their deserved agency.
The second interpretation, as well as the second step of the counter-narrative, involves rethinking the idea of the individual as a lone dissenter. Rather, by imagining that individual as belonging to another interpretative community, in a paradigm where every interpretation has identical legitimacy. This prevents the patriarchal or conservative voice from being automatically prioritised. Moreover, courts can apply ‘secular’ Constitutional principles, such as of gender equality, without being accused of infringing on religion, since they would be essentially adjudicating between equally valid claims.
From the perspective of women’s lived experience, this also renders harmless any tactics of ostracism. One individual may be branded as ‘not part of the community’, but entire groups cannot be branded such. Although the scope for majoritarian actions still exists, it may be lessened due to increased resistance from entire sub-communities.
Of course, it may be argued that this still does not prevent courts from prioritising patriarchal precedents. Bartlett offers a solution, albeit in a different context: consciousness-raising.38 This not only improves intra-group solidarity, it also exposes the inherent biases in judicial reasoning that enabled creation of such patriarchal precedents in the first place. Faced with clear evidence of bias, courts would be forced to address it if they wish to retain legitimacy as guardians of an inclusive Constitution.
CONCLUSION
In this article, I have applied principles of FCDA to the Goolrokh Gupta case and related textual materials. I have classified the narratives evident from the materials, and highlighted how there is a disjunct of the dominant grand narrative from local stories and lived experiences of Parsi women in inter-religious marriages. I have subsequently mentioned and critiqued conventional methods of mitigating such women’s suffering, and proposed a reframing of the narrative from that of ‘one individual vs homogenous community’ to ‘one legitimate community voice vs another equally legitimate but contradictory community voice’. Of course, this reframing is not intended to be deployed in isolation, but in conjunction with other discursive strategies. Individually, no strategy is fool-proof. However, it is intended that in tandem they may be able to effectuate some change in community norms and perceptions, as well as judicial attitudes to such disputes, ultimately making this world at large, and the Parsi Zoroastrian community, a more inclusive space for everybody.
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Footnotes
1. Goolrokh Gupta v Burjor Pardiwala 2020 2 SCC 705 (SC 2017).
2. Priyanka Sunjay, Goolrokh Gupta v. Burjor Padriwala: A Chance to Redeem, Update and Rationalize the Law, Oxford Human Rights Hub (Feb. 26, 2018), https://ohrh.law.ox.ac.uk/goolrokh-gupta-v-burjor-padriwala-a-chance-to-redeem-update-and-rationalize-the-law/ Criticises Gujarat HC judgement; compares it to Hadiya case; speaks about “missed opportunity” to improve women’s positions, just as happened in Triple Talaq case; ultimately criticised the SC interim order as a “desultory action on compassionate grounds” and advocated for a ‘cogent ruling…overruling archaic judgments and affirming the separate religious identity of women.’
3. See, for example, Id.
4. Katharine Bartlett, Feminist Legal Methods, 103 Harv. Law Rev. (1990).
5. Sir Dinsha Manekji Petit v Sir Jamsetji Jijibhai 1908 33 ILR Bom 509, 533 (Bombay HC 1908) (Second Point) Parsis and Zoroashtrians are not identical; Converts to Zoroastrianism do not, and cannot, become Parsis.
6. Sardar Syedna Taher Saifuddin Saheb v The State of Bombay AIR 1962 SC 853, 34 (Bombay HC 1962).
7. Dushyant Kishan Kaul, The “Essential Practices” Doctrine: Examining the Constitutional Impact of Inordinate Judicial Intervention of Religious Freedoms, 29 Int. J. Minor. Group Rights 350 (2022); See generally, Saraswathi Ammal v Rajgopal Ammal AIR 1953 SC 491 (sacred religious texts were used to determine the validity of establishing a burial ground in perpetuity); Ratilal Panachand Gandhi v State of Bombay 1954 SCR 1055 14 (In distinguishing between “religious” and “secular” activities, judges must act based on a commonsensical view); Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1954 SCR 1005 (where it was attempted to separate the scope of what was “essentially religious” from non-religious); Sardar Syedna Taher Saifuddin Saheb v The State of Bombay, supra note 8 at 60 (Only those legislations were Constitutionally permissible, which did not obstruct ’basic and essential practices of religion’); Durgah Committee v Syed Hussain Ali 1962 1 SCR 383 33 (beliefs that relied on superstition could not be essential to the religion; they were merely “extraneous and unessential accretions”); Goolrokh Gupta v Burjor Pardiwala 2012 SCC OnLine Guj 2058, 8 (Gujarat HC 2012) (“What constitutes as essential part of religion may be ascertained from doctrines of that religion according to its tenets, historical background and change in evolved process etc.”); Dawoodi Bohra Committee v State of Maharashtra 2023 INSC 115 (Courts, in light of recent judgements expanding idea of Constitutional Morality, must test essentiality of a religious practice against ideas of equality, dignity and non-discrimination); Indian Young Lawyers’ Association v State of Kerala 2019 11 SCC 1 (Sabarimala case, which is set for a review in April along with a host of other decisions of the SC).
8. Rajeev Dhavan & Fali S. Nariman, The Supreme Court and Group Life: Religious Freedom, Minority Groups and Disadvantaged Communities, in Supreme But Not Infallible: Essays in Honor of the Supreme Court of India , 260 (2000); see also Kaul, supra note 9 at 357.
9. Goolrokh Gupta v Burjor Pardiwala, supra note 9 at 26.
10. Id. at 27.
11. Id. at 56(6).
12. Id. at 9.
13. Id. at 11.
14. Id. at 28.
15. Id. at 18.
16. Id. at 19.
17. of the dissenting opinion. Id. at 30, 34.
18. Id. at 39.
19. Id. at 21 of the dissent.
20. Special Leave Petition by Mrs. Goolrokh Gupta, 2. Questions of Law, Question (k) (2017).
21. Id. at 2. Questions of Law, Question (l).
22. Dhavan and Nariman, supra note 10 at 259.
23. Id. at 261; see also Kaul, supra note 9 at 357.
24. M. Mohsin Alam, Constructing Secularism: Separating “Religion” and “State” Under the Indian Constitution, 11 Aust. J. Asian Law, 42–43 (2009); see also Kaul, supra note 9 at 358.
25. Kaul, supra note 9 at 351.
26. Indian Young Lawyers’ Association v State of Kerala, supra note 9.
27. Special Leave Petition by Mrs. Goolrokh Gupta, supra note 22 at 5. Grounds of Appeal, Ground OO.
28. Id. at 5. Grounds of Appeal, Ground AA.
29. Goolrokh Gupta v Burjor Pardiwala, supra note 9 at 58.
30. Id. at 19 of the dissenting opinion.
31. Special Leave Petition by Mrs. Goolrokh Gupta, supra note 22 at 5. Grounds of Appeal, Ground P.
32. Sanaya Dalal, A Parsi Woman’s Perspective On Being Denied Basic Rights, NDTV (Oct. 30, 2017), https://www.ndtv.com/blog/a-parsi-womans-perspective-on-being-denied-basic-rights-1768775?utm_source=copilot.com.
33. Id.
34. Id.
35. Id.
36. Day 1 Arguments: Parsi Excommunication, Supreme Court Observer (July 12, 2017), https://www.scobserver.in/reports/goolrokh-gupta-burjor-pardiwala-parsi-excommunication-day-1-arguments/.
37. Bartlett, supra note 4 at 855.
38. Id. at 863.