Is a bhoomi pujan or foundation laying ceremony for construction of a new building a secular or non-secular activity? So queried Justice Jayant Patel of the Gujarat High Court while heading a three member bench looking into the question on whether the Valsad Parsi Anjuman (VPA) has the right to bar entry to their fire temple to a Parsi Zoroastrian woman married to a non-Parsi under the Special Marriage Act 1954 and continuing to profess the Zoroastrian religion.
"The court has to examine if the bhoomi pujan is an essential part of the religion… Certain characteristics are common to every religion. If the (customs and ceremonies) are in all religions then it is secular,” observed Patel on September 15, 2011 in Ahmedabad. He cited the case of Solanki vs Union of India over which he and Justice J. C. Upadhyaya presided.
"Offering of prayer by any person for betterment of everybody cannot be termed as any activity or any action resulting into non-secular activity¸” the judges observed. The laying of a foundation holds "importance since the building is to stand on such foundation. If such important event is celebrated by the State or the High Court, by no stretch of imagination can it be said that such action of celebration is non-secular in any manner.” As to whether a religious practice is an integral part of the religion "the test always would be whether it is regarded as such by the community following the religion or not.” What is integral however is often disputed.
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"Purely secular practices which are an essential or integral part of the religion are apt to be clothed with a religious form and may make a claim to being treated as religious practices within the meaning of fundamental rights of freedom of religion provided by the constitution,” the two stated.
Similarly in the case of former Valsad resident Goolrookh Gupta who is contesting the VPA bar before Justices Patel, Akil Kureshi and R. M. Chhaya, the bench wanted to know if "entry (into the fire temple) is or is not an essential part” of Zoroastrianism. "Show us that it is permitted or barred.”
VPA advocate Sharad Vakil explained a fire temple is a consecrated place of worship, not just some property. Its sanctity had to be maintained. "What is religion is religion, what is not is secular or commercial. Eclectic rights are not legal rights… Religion is beyond intellect, beyond aesthetics. It is not based on laws or physics but metaphysical considerations. It is not based on any rationality which could be adjudicated by any court. Ceremonies are an essential part of religion as are dress, food, how to perform worship…
"In the Zoroastrian religion, is a Zoroastrian precluded from marrying a non-Zoroastrian?” Would this amount to forsaking the religion? "She may not marry. She may remain a spinster. Has she married a non-Zoroastrian without considering” this option, Vakil queried.
Vakil cited several judgments to bolster his arguments but Patel observed the judgments were dated and subsequent Supreme Court rulings "diluted” the earlier ones.
Patel asked the counsels for both parties to study six judgments that he cited for the next hearing. The hearing scheduled for September 22, 2011 was cancelled as Vakil was hospitalized.