SABRIMALA TEMPLE JUDGEMENT: A CRITICAL ANALYSIS
Author: Yogi Chaudhary
Law College Dehradun, Uttaranchal University
ISSN: 2581-8465
Abstract:On 28thSept. 2018, the Supreme Court of India in a 4:1 ratio judgement removed the ban on menstruating women to enter the Sabrimala Temple in kerala. The judgement got applauds from those who support equality in every sphere of life, but at the same time was not short of criticism from the devotees of the temple and those whose believe in religious freedom.The paper seeks to scrutinize the Sabrimala judgment in toto. The legal background, major issues including religious freedom, equality and untouchability principles have been largely dealt with. The paper also adds implementation issues and conclusion to the judgement through personal opinion.
Keywords:Secularism, Religious Freedom,Right to equality, Discrimination, Untouchability, Essential religious practices, Religious Denomination
Introduction
The development of religious laws (particularly Hindu) in India can be traced back to the time of Vedas (Sruti). Describing the sources of Hindu law, Manu says:
“The vedas, the smriti, the approved usage, and what is agreeable to one’s soul (good conscience) the wise have declared to be the quadruple direct evidence of Dharma (Law)”. Law, as understood by the Hindus, is a branch of Dharma an expression which signifies duty.[1]
From the period of Vedas till today there have been numerous ideas and principles revolving around the concept of religion. The scope of religion is so vast that it is difficult to narrow it down to words. Here again, it had been Ambedkar, extraordinarily prescient, who had warned the Constituent Assembly on the 2nd of December, 1948 by stating that:
“The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death… if personal law is to be saved, I am sure… that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and rituals as may be connected with ceremonials which are essentially religious.”[2]
The struggle for independence got its final face through the Constitution being adopted. The Constitutional Assembly was framed for that purpose. The idea of framing the Constitution was to provide a legal framework for the nation. The idea of including religious provisions in the constitution was to regulate them to the extent that they do not exploit the individuals and the nation at large.
Defining Religion- A Paradigm of Faith and Purity
Framing the articles for the governance of religion H.V.Kamath on 6th Dec 1948 said:
“The real meaning of this word religion, I assert that `Dharma’ in the most comprehensive sense should be interpreted to mean the true values of religion or of the spirit. `Dharma’, which we have adopted in the crest or the seal of our Constituent Assembly and which you will find on the printed proceedings of our debates: (“Dharma Chakra pravartanaya”) – that spirit, Sir, to my mind, should be inculcated in the citizens of the Indian Union. If honorable Members will care to go just outside this Assembly hall and look at the dome above, they will see a sloka in Sanskrit:”Na sa Sabha yatra na santi vriddha, Vriddha na te ye na vadanti dharmam”. That `Dharma’, Sir, must be our religion. `Dharma’ of which the poet has said. Yenedam dharyate jagat (that by which this world is supported).”[3]
Religion is the belief which binds the spiritual nature of men to super-natural beings. It includes worship, belief, faith, devotion, etc. and extends to rituals. The religious right is the right of a person believing in a particular faith to practice it, preach it and profess it.[4]
“The essential characteristic of Hinduism is faith. The purity of character is ensured by rules which regulate the practice of the worshippers as well as that of the priests”.[5]
- Supreme Court of India
Though there has not been any specific definition of ‘religion’ in the constitution, the above two definitions are just to highlight that the apex court believes that religion is a matter of individual faith and every person has the right to profess his religion as per his own will.
Concept of Secularism in India
The concept of secularism is implicit in the Preamble of the Constitution which declares the resolve of the people to secure to all its citizens “liberty to thought, belief, faith, and worship”. The 42nd Amendment Act, 1976, has inserted the word ‘Secularism’ in the Preamble. This amendment is intended merely to spell out clearly the concept of ‘Secularism’ in the Constitution.
“Secularism is a basic feature of the Constitution”.[6] The State treats equally all religions and religious denominations. Religion is a matter of individual faith and cannot be mixed with secular activities. Secular activities can be regulated by the State by enacting a law. The Indian Constitution embodies the positive concept of secularism which separates spiritualism with individual faith. In the matter of religion, the State is neutral and treats every religion equally.
Religious Freedom- Constitutional safeguards vis-à-vis Religion
The content of the fundamental right is the fleshing out of what is stated in the Preamble to the Constitution as liberty of thought, belief, faith, and worship. Thus, all persons are entitled to freedom of conscience and the right to freely profess, practice, and propagate religion.
The right to profess, practice, and propagate religion will include all acts done in furtherance of thought, belief, faith, and worship. Articles 25 to 28 confer rights relating to freedom of religion on all persons in India. Article 25 provides for the freedom of conscience and free profession, practice and propagation of religion, Article 26 provides for the freedom to manage religious affairs, Article 27 provides the freedom as to payment of taxes for promotion of any particular religion and Article 28 provides for freedom s to attendance of religious instructions or religious worship in certain educational institutions. These constitutional provisions guarantee religious freedom not only to individuals but to religious groups as well.
Background and origination of the dispute: Travancore Board Case[7]
It was the case of Kerala High Court decided on 05th April 1991 by a division bench comprising of K.S. Paripoornan, J. and K.P. Balanarayana Marar, J. and the subject matter of the case were civil.
Primarily the issue regarding entry of women into Sabarimala temple originated by the application filed by S.Mahendran in the High Court of Kerala raising question on the entry of the young women (wives of V.I.Ps.) trekking Sabari hills (Sabarimala) and offering prayers at the Sabarimala Shrine which was contrary to the customs and usages followed in the temple. The Travancore Board (defendant) contended that for the last 20 years women irrespective of their age were allowed to visit the temple when it opens for monthly poojas except for certain seasons. It also stated that the Board, being a statutory authority, cannot forget the mandate laid down under Articles 15, 25 and 26 of the Constitution of India while administering the temples under their control. It cannot conceive of any religious practice under the Hindu religion which deprives a worshipper of his rights to enter the temple and worship therein according to his belief.
The Kerala High Court observed that the deity in Sabarimala temple is in the form of a Yogi or a Bramchari particularly‘NaisthikBramchari’ and that is the reason why young women are not permitted to offer prayers in the temple so that even the slightest deviation from celibacy and austerity observed by the deity is not caused by the presence of such women. Finally, the main propositions framed by the Kerala High Court in this case were:
- Whether a woman of the age group 10 to 50 can be permitted to enter the Sabarimala temple at any period of the year or during any of the festivals or poojas conducted in the temple?
- Whether the denial of entry of that class of woman amounts to discrimination and violative of Articles 15, 25 and 26 of the Constitution of India?
- Whether directions can be issued by this Court to the Devaswom Board and the Government of Kerala to restrict the entry of such woman to the temple?
The High Court, after posing the aforesaid questions, observed thus:
“The deity in Sabarimala temple is in the form of a Yogi or a Bramchari according to the Thanthri of the temple. He stated that there are Sasta temples at Achankovil, Aryankavu, and Kulathupuzha, but the deities there are in different forms. Puthumana Narayanan Namboodiri, a Thanthrimukhya recognised by the Travancore Devaswom Board, stated that God in Sabarimala is in the form of a NaisthikBramchari. That, according to him, is the reason why young women are not permitted to offer prayers in the temple.
Since the deity is in the form of a Naisthik Brahmachari, it is therefore believed that young women should not offer worship in the temple so that even the slightest deviation from celibacy and austerity observed by the deity is not caused by the presence of such women.”
Analyzing so, the High Court recorded its conclusions which read thus:
- The restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial.
- Such restriction imposed by the Devaswom Board is not violative of Articles 15, 25 and 26 of the Constitution of India. Such restriction is also not violative of the provisions of Hindu Place of Public Worship (Authorisation of Entry) Act, 1965 since there is no restriction between one section and another section or between one class and another class among the Hindus in the matter of entry to a temple whereas the prohibition is only in respect of women of a particular age group and not women as a class.
- The court directed the Travancore Devaswom Board, not to permit women above the age of 10 and below the age of 50 to trek the holy hills of Sabarimala in connection with the pilgrimage to the Sabarimala temple and from offering worship at Sabarimala Shrine during any period of the year. The Kerala Government was directed to render all necessary assistance inclusive of police to see the implementation of its directions.
Thus the Kerala High Court accorded greater importance to the religious faith of the devotees of the Sabarimala Temple and kept intact the restriction on the women between the age of 10 to 50 years. It also directed the state government for taking necessary actions for the implementation of its order.
THE LANDMARK CASE:
Indian Young Lawyers Association& Ors. v. The State of Kerala& Ors.
In the Supreme Court of India
(Writ Petition (Civil) No. 373 of 2006 under Article 32 of the Constitution of India)
It is pertinent to note that this case was not an appeal from the decision of the previous case but a wholly new petition which was filed in the Supreme Court of India by the Indian Young Lawyers Association in the form of a Public Interest Litigation.
In this case, a writ petition was filed by the Indian Young Lawyers Association to invalidate and strike down the Rule 3(b) of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965. According to this rule and the subsequent notification passed by the Kerala, Government prohibition was made on the entry of women between the age of 10 to 50 years from entering into the temple. The rule read as:-
Rule 3: The classes of persons mentioned hereunder shall not be entitled to enter or offer worship inany place of public worship or bathe in or use the waters of any sacred tank, well, spring or water-course appurtenant to a place of public worship whether situate within or outside the precincts thereof or any sacred place including a hill or hillock or a road, street or pathway which is requisite for obtaining access to the place of public worship:
(b)Women at such time during which they are not by custom and usage allowed to enter a
place of public worship.
The petitioners claimed that such restriction was violative of Article 14, 15 and 17 of the Constitution and it was discriminatory against women of the said age. It amounts to untouchability. The defendant contended that the restriction was in accordance with the age-old custom. It was made due to the nature of the deity of the Sabarimala Temple who was in the form of “Naistikya Brahamchari”, a person who has taken the vow of celibacy and even the sight of a woman could affect his celibacy. It was also the contention of the defendants that the Sabarimala temple constituted a religious denomination under Art. 26 of the Constitution and has the right to manage its religious matters under clause 2 of Art. 26 of the Constitution.
Originally the case[8] was presided over by a three-Judge Bench, keeping in view the gravity of the issues involved, the Court sought the assistance of Mr. Raju Ramachandran and Mr. K. Ramamoorthy, learned senior Counsel as Amicus Curiae. The Bench analyzed the decision and the reasons ascribed by the Kerala High Court in S. Mahendran v The Secretary, Travancore Devaswom Board, Thiruvananthpuram and Ors[9].wherein similar contentions were raised. The Bench took note of the two affidavits dated 13.11.2007 and 05.02.2016 and the contrary stands taken therein by the Government of Kerala.
After recording the submissions advanced by the learned Counsel for the Petitioners, the Respondents as well as by the learned Amicus Curiae, the three-Judge Bench considered the questions formulated by the counsel for the parties and, thereafter, framed the following questions for the purpose of the reference to the Constitution Bench:
1. Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to “discrimination” and thereby violates the very core of Articles 14, 15 and 17 and not protected by ‘morality’ as used in Articles 25 and 26 of the Constitution?
2. Whether the practice of excluding such women constitutes an “essential religious practice” Under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?
3. Whether Ayyappa Temple has a denominational character and, if so, is it permissible on the part of a ‘religious denomination’ managed by a statutory board and financed Under Article 290-A of the Constitution of India out of the Consolidated Fund of Kerala and Tamil Nadu to indulge in such practices violating constitutional principles/morality embedded in Articles 14, 15(3), 39(a) and 51-A (e)?
4. Whether Rule 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits ‘religious denomination’ to ban entry of women between the age of 10 to 50 years? And if so, would it not play foul of Articles 14 and 15(3) of the Constitution by restricting the entry of women on the ground of sex?
5. Whether Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and, if treated to be intra vires, whether it will be violative of the provisions of Part III of the Constitution?
As against the previous case, the question laid down here was wider covering all menstruating women at large. The main issue framed was “Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to “discrimination” and thereby violates the very core of Articles 14, 15 and 17 and not protected by “morality” as used in Articles 25 and 26 of the Constitution?” And the conflict between the principles of equality and the right to religious freedom formed the issue of debate in this case.
Finally, the case was referred to the Constitutional bench.
The case was finally decided by the Constitutional Bench (5 judges) comprising of Dipak Misra, C.J. Khawilkar, J., Nariman, J., Chandrachud, J. and Malhotra, J.
Judgement
The judgement is divided into 4 parts, written by 4 members of the Bench, viz. Misra, J. (for himself and Khawilkar, J.), Nariman, J., Chandrachud, J. and Malhotra, J. The ratio is 4:1 where Justice Indu Malhotra gave a dissenting judgement. The case was decided on 28thsept 2018.
Major contentions: An Analysis
The petitioners have largely dealt with Article 14, 15(3) and 17 of the Constitution. The contention of equal treatment of male and female devotees was raised in light of Article 14. Under Article 15(3) it was contended that the state should make laws to allow entry of women into the temple. And under Article 17 the position of menstruating women was compared to untouchables.
Article 14
The petitioners contended that equality necessarily means equality between sexes and genders. It postulates a right to be free from discrimination and to have the protection of the law in the same manner as is available to every citizen. It is above all, is a protective shield against the arbitrariness of any form of authority. To treat women as children of a lesser god is to blink at the Constitution itself.
Whereas the defendants contended that the act is reasonable classification and not discrimination.
Reasonable Classification under Art. 14
In Roop Chand Adlakha v. Delhi Development Authority[10], the apex court held that there shall be a test of permissible classification, the essentials of which are
- It must be founded on all intelligible differentia.
- Differentia must have a rational relation to the object sought to be achieved by the state.
Laws made by a competent legislature in the interest of public order and the like, restricting religious practices, would come within the regulating power of the State. It must be construed that though the freedom of conscience is guaranteed to every individual so that he may hold any beliefs he likes, his actions in pursuance of those beliefs may be liable to restrictions in the interest of the community at large, as may be determined by common consent, that is to say, by a competent legislature. Thus the act cannot be said to be violative of Art. 14
In an illuminating judgment[11], N. Rajagopala Ayyangar, J. told that “in my view by the phrase –laws providing for social welfare and reform it was not intended to enable the legislature to –reform a religion out of existence or identity. Art. 25(2)(a) having provided for legislation dealing with –economic, financial, political or secular activity which may be associated with religious practices, the succeeding clause proceeds to deal with other activities of religious groups and these also must be those which are associated with religion. Just as the activities referred to in Art. 25(2)(a) are obviously not of the essence of the religion, similarly the saving in Art. 25(2) (b) is not intended to cover the basic essentials of the creed of a religion which is protected by Art. 25(1).”
In the present case, the classification of women of the age group of 10 to 50 has been done on reasonable grounds to not hurt the religious sentiments of the people of Hindu religion and to protect their religious interest. Furthermore, the practice of women not being allowed to enter the temple premises has been long observed by the temple administration authorities. It has also been done keeping in mind the welfare of the women of the said age group as the hardships of the pilgrimage, its topography and the route through hilly and forest tracts, all these render it difficult for women to visit the temple.
Religious customs and practices cannot be solely tested on the touchstone of Art. 14 and the principles of rationality embedded therein. Art. 25 specifically provides the equal entitlement of every individual to freely practice their religion. Equal treatment under Art.25 is conditioned by the essential beliefs and practises of any religion. Equality in matters of religion must be viewed in the context of the worshippers of the same faith.
Article 15
The main contention of the petitioners was that the state should make special provisions to allow entry of women into the temple under Article 15(3).
In Raghubans Saudagar Singh v. State of Punjab[12], the court held that if sex, added to a variety of other factors and considerations, forms a reasonable nexus for the object of classification, then the bar of Art. 15 cannot possibly be attracted. In the present case, as the impugned act is not intended to discriminate on the basis of sex, and whatever classification there exists, it is on the basis of reasonable grounds concerning religious sentiments and practices followed in the temple for centuries. Art. 15 cannot be invoked.
Rule 3(b) gives effect to the proviso of Section 3 insofar as it makes a provision for restricting the entry of women at such times when they are not by custom or usage allowed to enter or place of public worship.
Section 3(b) provides that every place of public worship which is open to Hindus generally, or to any section or class thereof, shall be open to all sections and classes of Hindus; and no Hindu of whatsoever section or class shall, in any manner be prevented, obstructed or discouraged from entering such place of public worship or from worshipping or from offering prayers there or performing any religious service therein, in the like manner and to the like extent as any other Hindu of whatsoever section or class may enter, worship, pray or perform.
With respect to the contention that the custom is violative of women’s right to gender equality, it should be noted that if women as a class were prohibited from participation, it would amount to social discrimination. However, this is not so in the present case. Girls below 10 years and women after 50 years can freely enter this Temple, and offer worship. Further, there is no similar restriction on the entry of women at the other Temples of Lord Ayyappa.
The prohibition is not a social discrimination but is only a part of the essential spiritual discipline related to this particular pilgrimage and is clearly intended to keep the mind of the pilgrims away from the distraction related to sex as the dominant objective of the pilgrimage is the creation of circumstances in all respects for the successful practice of spiritual self-discipline.
Under Art. 15(3) the State can make special provisions for women and children for the prohibition of discrimination. But in the present case, no discrimination is proved to be present. Thus no action of State lies under Art. 15(3).
Article 17
A pertinent argument was also made in the court, based on Article 17, trigged interesting thoughts on constitutional interpretation. It was argued that the exclusion is a form of ‘untouchability’ since the exclusion is solely based on notions of purity and impurity. But this argument was resisted on the contention that the prohibition of untouchability was historically intended only to protect the interests of the backward classes. The claim was that the makers of the Constitution never envisioned including women within the ambit of untouchability. But if we look through the ‘living tree’ approach — being an alternative and a finer reading of the Constitution — supports a broader interpretation of Article 17. Now, even if the framers of the Constitution intended this provision to address a specific category of discrimination, there is nothing that prevents the constitutional court from adopting an interpretation to include women under Article 17.
Article 17 is emphatic in its wording: “Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with the law.”[13] It is peculiar since it abolishes a social practice in any form.
The petitioner stated that in Living Originalism in India: Our Law and Comparative Constitutional Law (2013)[14], Sujit Choudhry argues that untouchability and the exclusion of the homosexuals are comparable. He says that “the treatment which homosexuals experience today is similar in kind to that which ‘untouchables’ experienced and which prompted the adoption of Article 17, in that the treatment of homosexuals likewise flows from their social status.” This is a case where discrimination is based solely on sexual orientation.
Women have been kept out of Sabarimala because of menstruation. As a distinct class, they were being discriminated against. If certain castes are considered ‘impure’ because of their social status, menstruating women are considered to be so because of their gender. The criteria are different but the effect of exclusion is common. It seems that such an interpretation does not do any violence to the language and content of Article 17, but only emancipates it.
The religious customs, as well as the traditional science of Ayurveda, consider menstrual period as an occasion for rest for women and a period of uncleanliness of the body and during this period, women are affected by several discomforts and, hence, observance of intense spiritual discipline for 41 days is not possible. It is for the sake of pilgrims who practice celibacy that young women are not allowed in the Ayyappa pilgrimage.
R.F. Nariman, J. said that “We were invited by the learned Amicus Curiae, Shri Raju Ramachandran, to construe Article 17 in wider terms than merely including those who were historically untouchables at the time of framing of the Constitution. We have refrained from doing so because, given our conclusion, based on Article 25(1), this would not directly arise for a decision on the facts of this case.”
Art. 17 is not violated because the prohibition is not social discrimination but is only a part of the essential spiritual discipline. The right asserted by Dalits was in pursuance of right against systematic social exclusion and for social acceptance per se. In the case of temple entry, social reform preceded the statutory reform, and not the other way about. The social reform was spearheaded by great religious as well as national leaders like Swami Vivekananda and Mahatma Gandhi. The reforms were based upon societal morality, much before Constitutional Morality came into place.
The observance of 41 days Vruthum is a condition precedent for the pilgrimage which has been an age-old custom and anyone who cannot fulfill the said Vruthum cannot enter the temple and, hence, women who have not attained puberty and those who are in menopause alone can undertake the pilgrimage at Ayyappa. The said condition of observance of 41days Vruthum is not applicable to women alone and even men who cannot observe the 41 days Vruthum due to births and deaths in the family, which results in breaking of Vruthum, are also not allowed to take the pilgrimage that year.
It is important to know that if women as a class had been restricted from entering into the temple it would have definitely amounted to discrimination. But the limited restriction on women does not attract violation of Art. 17 in the present case.
Constitutional Morality
Chandrachud, J. said that “The content of morality is founded on the four precepts which emerge from the Preamble. The first among them is the need to ensure justice in its social, economic and political dimensions. The second is the postulate of individual liberty in matters of thought, expression, belief, faith and worship. The third is equality of status and opportunity amongst all citizens. The fourth is the sense of fraternity amongst all citizens which assures the dignity of human life. Added to these four precepts is the fundamental postulate of secularism which treats all religions on an even platform and allows to each individual the fullest liberty to believe or not to believe.”
Learned Amicus Curiae, Shri Raju Ramachandran submitted that “the term ‘morality’ occurring in Article 25(1) of the Constitution should be appositely understood as being synonymous with constitutional morality.” To this R.F. Nariman, J. said that “If so read, it cannot be forgotten that this would bring in, through the back door, the other provisions of Part III of the Constitution, which Article 26 is not subject to, in contrast with Article 25(1).”
The petitioners have submitted that in legal and constitutional parlance, after coming into effect of the Constitution of India, “dignity of women” under Article 51A(e) is an essential ingredient of constitutional morality. Similarly, Article 17 was also claimed to be violated by discriminating women solely on the basis of gender.
We must remember that when there is a violation of the fundamental rights, the term “morality” naturally implies constitutional morality and any view that is ultimately taken by the Constitutional Courts must be in conformity with the principles and basic tenets of the concept of this constitutional morality that gets support from the Constitution.
Elaborating further, in Navtej Singh Johar and others v. Union of India and others[15], this Court observed:
“The concept of constitutional morality is not limited to the mere observance of the core principles of constitutionalism as the magnitude and sweep of constitutional morality is not confined to the provisions and literal text which a Constitution contains, rather it embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society, while at the same time adhering to the other principles of constitutionalism. It is further the result of embodying constitutional morality that the values of constitutionalism trickle down and percolate through the apparatus of the State for the betterment of each and every individual citizen of the State.”
Chandrachud, J said that “Morality for the purposes of Articles 25 and 26 cannot have an ephemeral existence. Popular notions about what is moral and what is not are transient and fleeting. Popular notions about what is or is not moral may in fact be deeply offensive to individual dignity and human rights. Individual dignity cannot be allowed to be subordinate to the morality of the mob. Nor can the intolerance of society operate as a marauding morality to control individual self-expression in its manifest form….. Hence, morality for the purposes of Articles 25 and 26 must mean that which is governed by fundamental constitutional principles.”
All the judges including Indu Malhotra, J. agreed upon the view that morality implies constitutional morality. All the judges except Malhotra, J. said that because of constitutional morality every individual has the right to equality and right to profess his religion but they forget that in a secular polity constitutional morality would imply the harmonisation of the Fundamental Rights, which include the right of every individual, religious denomination, or sect, to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practise is rational or logical, which Indu Malhotra, J. reminded of.
Essentiality of practice and Religious Denomination: Claim under Article 26
The petitioners also extended to prove that the practice of the temple is not an essential practice and the temple is not a religious denomination so as to claim the right to manage its own religious affairs.
It was contended that “In view of the law laid down by this Court in the second Ananda Marga case[16], the exclusionary practice being followed at the Sabarimala Temple cannot be designated as one, the non-observance of which will change or alter the nature of Hindu religion.” In deciding the question as to whether a given religious practice is an integral part of the religion or not, the test always would be whether it is regarded as such by the community following the religion or not.[17] But the court held that if the denominational rights are such that to give effect to them would substantially reduce the right conferred by Art. 25(2) (b), then of course, on our conclusion that Art. 25(2) (b) prevails as against Art. 26(b), the denominational rights must vanish.[18]
The opinion of the Supreme Court was that any custom or usage irrespective of even any proof of their existence in pre-constitutional days cannot be countenanced as a source of law to claim any rights when it is found to violate human rights, dignity, social equality and the specific mandate of the Constitution and law made by Parliament. No usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by courts in the country.[19]
Here it is peculiar to note that the judgement of the Supreme Court in the case of Shirur Mutt case[20]decided by a seven judge bench was cited numerous times in the present case. The relevant part of the judgement is:
The contention formulated in such broad terms cannot, we think, be supported. In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or ablations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of article 26(b).
The petitioners themselves said that this Court in Shirur Mutt[21], while giving freedom under clauses (a) and (b) of Article 26, made it clear that what is protected is only the essential part of religion or, in other words, the essence of practice practiced by a religious denomination and, therefore, the petitioners submit that before any religious practice is examined on the touchstone of constitutional principles, it has to be ascertained positively whether the said practice is, in pith and substance, really the essence of the said religion.
Dipak Misra, CJI said that –“In no scenario, it can be said that the exclusion of women of any age group could be regarded as an essential practice of the Hindu religion and on the contrary, it is an essential part of the Hindu religion to allow Hindu women to enter into a temple as devotees and followers of Hindu religion and offer their prayers to the deity. In the absence of any scriptural or textual evidence, we cannot accord to the exclusionary practice followed at the Sabarimala temple the status of an essential practice of Hindu religion.”
But if it looks at whether the practice of restricting women is really essential to the religion or not, then the answer would be yes. It is so because of the very nature of the deity sitting in the temple. If his celibacy would be hampered then the whole essence of the religion would be destroyed.
- 2. Religious denomination
As it was the stand of the petitioners that some mere difference in practices carried out at Hindu Temples cannot accord to them the status of separate religious denominations.[22] It was settled position in law, having regard to the various decisions in Nallor Marthandam Vellalar[23], SP Mittal[24] and Shirur Mutt[25] of this Court that the words “religious denomination” take their colour from the word `religion’. The expression “religious denomination” must satisfy three requirements (1) it must be a collection of individuals who have a system of belief or doctrine which they regard as conducive to their spiritual well-being, i.e., a common faith; (2) a common organization; and (3) designation of a distinctive name. But in the present case, the defendant was not able to prove the above three conditions strongly. Further, the Amicus has submitted that the decision of the Kerala High Court in S. Mahendran[26] does not indicate a finding of a denominational status.
Line between Secular and Religious Matters: Scope of 25(1) and Art. 26(b)
CJI Dipak Mishra pointed out that the moot point for consideration, therefore, was where the line to be drawn between what are matters of religion and what are not? Our Constitution-makers have made no attempt to define what religion is and it is certainly not possible to frame an exhaustive definition of the word religion which would be applicable to all classes of persons. Citing the observations of Latham, C.J. of the High Court of Australia in the case of Adelaide Company v. Commonwealth[27]
“Religious practices or performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines. Thus if the tenets of the Jain or the Parsi religion lay down that certain rites and ceremonies are to be performed at certain times and in a particular manner, it cannot be said that these are secular activities partaking of commercial or economic character simply because they involve expenditure of money or employment of priests or the use of marketable commodities.”
Laws made by a competent legislature in the interest of public order and the like, restricting religious practices, would come within the regulating power of the State. The exceptions to this individual right are public order, morality, and health. Public order is to be distinguished from law and order. The public disorder must affect the public at large as opposed to certain individuals. The term morality is difficult to define. For the present, suffice it to say that it refers to that which is considered abhorrent to civilized society, given the mores of the time, by reason of harm caused by way, inter alia, of exploitation or degradation. Health would include noise pollution and control of the disease. Another exception to the fundamental right conferred by Article 25(1) is the rights that are conferred on others by the other provisions of Part III.
To throw light on the grounds covered previously in the decisions of the Supreme Court on the scope and effect of religious freedom contained in Articles 25 and 26, the court stated the judgement in the case of Nar Hari Sastri,[28] where question was raised on the entry of Pandas accompanying the pilgrims inside the temple. The court held that the right of entry into a public temple is, however, not an unregulated or unrestricted right. It is open to the trustees of a public temple to regulate the time of public visits and fix certain hours of the day during which alone members of the public would be allowed access to the shrine.
It was averred by the petitioners by pressed into service the judgment of this Court in Shirur Mutt[29]that though no right is absolute, yet entry to temple may be regulated and there cannot be an absolute prohibition or complete exclusionary rule from the entry of women to a temple.
The court held that in any case, the fundamental right under Article 26 will have to be balanced with the rights of others contained in Part III as a matter of harmonious construction of these rights as was held in Sri Venkataramana Devaru.[30]From the same judgement it was cited that If the denominational rights are such that to give effect to them would substantially reduce the right conferred by Art. 25(2) (b), then of course, on our conclusion that Art. 25(2) (b) prevails as against Art. 26(b), the denominational rights must vanish.[31]
Article 21
Drawing support from the decisions of the Court in National Legal Services Authority v. Union of India andothers[32] and JusticeK.S. Puttaswamy and another v. Unionof India and others[33], the applicant/intervenor has averred that the exclusionary practice pertaining to women is violative of Article 21 of the Constitution as it impacts the ovulating and menstruating women to have a normal social day to day rendezvous with the society including their family members and, thus, undermines their dignity by violating Article 21 of the Constitution.
The claim of International Obligations upon State
It was claimed by the petitioners that India is a party to the Convention on Elimination of all forms of Discrimination Against Women (CEDAW) for emphasizing that it is the obligation of the State to eradicate taboos relating to menstruation based on customs or traditions and further the State should refrain from invoking the plea of custom or tradition to avoid their obligation. The judgment of this Court in Vishaka and others v. State of Rajasthan and others[34] provides that international conventions must be followed when there is a void in the domestic law or when there is any inconsistency in the norms for construing the domestic law.
But it should be noted that the right guaranteed under Article 25(1) has nothing to do with gender or, for that matter, certain physiological factors, specifically attributable to women.
The right guaranteed under Article 25(1) is not only about inter-faith parity but it is also about intra-faith parity. Therefore, the right to practise religion under Article 25(1), in its broad contour, encompasses a non-discriminatory right which is equally available to both men and women of all age groups professing the same religion. The right to worship God according to the dictates of one’s conscience. Man’s relation to his God is made no concern for the State.[35]
Implementability Crisis
Over time there have been numerous judgments made by the Supreme Court and the High Courts in the matters of religion. The judgements by large are in compliance with the constitutional principles but the hindrance comes in the implementation of such judgement. When it comes to religious matters it becomes quite impossible for the police and administrative authorities to control the public. The reason being (directly or indirectly) – politics. The police and administration being puppets in the hands of politicians find it difficult to take action on such matters on their own. They are always controlled by them who don’t want to lose their vote bank which consequently leads to total public disorder and loss of life and property. Some instances are:
- Ban on Cow Slaughter Case[36] – In the Hindu religion, the cow is considered to be the most pious of all animals. The act of cow slaughter is certainly extremely against Hindu religious sentiments. But still, we see numerous cases of cow slaughter like the Dec 2018 in Bulandshahr where three Muslim men were arrested for cow slaughter.[37]
- Non-Brahmin priests in temples[38]– The religious theory States that according to the Rig Veda (ancient Hindu book) the Purush (primal man) destroyed himself to create a society where the different parts of his body represented the four Varnas. Brahmins came from his head, Kshatriyas came from his hands, Vaishyas came from his thighs, and Sudras came from his feet. Examples of what this represents are “Brahmans, who were derived from the head of Purush, are considered the intelligent and most powerful varna because of their wisdom and education and are a representation of the brain. Even today this belief persists in the minds of the public due to which Brahmins still dominate the Hindu religion.
- Ban on Tandava Dance in public places[39]– Reference can be made to the second deadly stampede that took place during an Indian festival, namely RathYatra or Chariot Festival in the temple of Puri in Orissa in 2008[40], in which the permission was taken for only a few thousands of people but ended up in a gathering of almost the whole of Orissa. Deadly stampedes are very common during Indian religious festivals where thousands of people gather in small areas creating a lot of troubles where safety measures are not in place.
- Ban on loudspeakers at the time of Azan[41] and Church of Full Gospel[42]– It is apparent that a citizen whose fundamental right to sleep peacefully is disturbed, has the right to complain. This issue is less about religion and more about mutual respect and civic sense. Even on Diwali, restrictions have been placed as it has adverse effects on the state of noise (and air) pollution. The same standard should be adopted for all other religious and cultural expressions. But the reality is that not a small festival of any religion goes away without the use of loudspeakers and noise pollution in the name of religion.
- The entry of Menstruating Women into Sabarimala Temple– the Supreme Court gave permission to menstruating women to enter the Sabarimala Temple but not the public. Just after the ban was uplifted people started protesting and blocked the way of women entering the temple.[43]
Evaluation and Conclusion
“This is my simple religion. There is no need for temples; no need for complicated philosophy. Our own brain, our own heart is our temple; the philosophy is kindness”[44].
- Dalai Lama
The Supreme Court by giving the judgment in a 4:1 majority got applauds from the so-called modern thinkers but at the same time was not short of criticism. It was negated that the application of uniform constitutional criterion on all religious customs cannot be justified. The vision of the Hindu way of life through a Semitic prism is believed to have troubling consequences.[45] Every aspect of life cannot be tested on the touchstones of constitutionality. Justice Indu Malhotra herself opined that the court “cannot impose its morality or rationality with respect to the form of worship of a deity” and accorded greater importance to the idea of religious freedom as being mainly the preserve of an institution rather than an individual’s right[46]. She held that the right of the devotees under Article 25(1) cannot be made subject to the claim of the Petitioners to enter the temple under Articles 14 and 15 of the Constitution since they do not profess faith in the deity of this Temple, but claim merely to be social activists. If we start reviewing every small religious practice then there would be thousands of PILs claiming for one or the other rights on the ground of constitutional provisions of equality and non-discrimination.
Religious intolerance is at par in time. People get easily outraged if they witness anything going against their belief and faith. Any judicial order though legally accurate it may be, but requires acceptance from the masses especially when it comes to religion. It is only through a change in the mindset of the people that religious practice can be modified (if against Constitutional norms). It is through the collective effort of the democratic organs and the people which can bring a social change. The people should introspect and individually realize that what part of religion should be preserved and what should be discarded. The basic purpose of every religion is to nurture good virtues instead of violence.
India is a land of Gods and it is the reason why the state has
provided for fundamental rights of religion so that people can profess their
religion according to their own belief and faith. If we are to check their belief
with the constitutional principles than the essence of such religious practices
will be lost in the process and such constitutional provisions would become an
empty shell.
[1]Medhatithi on Manusmriti VII 1.
[2]https://cadindia.clpr.org.in/constitution_assembly_debates/volume/7/1948-12-02, last seen on 22/02/2019
[3]https://cadindia.clpr.org.in/constitution_assembly_debates/volume/7/1948-12-06, last seen on 22/02/2019
[4] PMA Metropolitan v Moran Mar Marthoma, AIR 1995 SC 2001
[5] S. Mahendran vs The Secretary, Travancore, AIR 1993 Ker 42
[6] S.R. Bommai v. Union of India, AIR 1994 SC 1918
[7] Supra 5
[8]Young Lawyers Association and Ors. v. State of Kerala and Ors, (2017) 10 SCC 689
[9] Supra 5
[10]1989 supl. SCC 116
[11]Sardar Syedna Taher Saifuddin Saheb v. The State of Bombay, 1962 AIR 853, 1962 SCR Supl. (2) 496
[12]AIR 1972 P & H 117
[13] Article 17, Constituion of India Act, 1950
[14] Sujit Choudhry, Living Originalism in India: Our Law and Comparative Constitutional Law, 25 Yale. J.L. & Human. 1 (2013), https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=3244&context=facpubs, 29/09/18
[15] (2018) 10 SCALE 386
[16]Supra 13
[17]Tilkayat Shri Govindlalji v. The State Of Rajasthan And Others, 1963 AIR 1638, 1964 SCR (1) 561
[18] Sri Venkatramana Devaru v. State of Mysore and others (1958) SCR 895 : 1958 AIR 55
[19] N Aditya v. Travancore Dewaswom Board, 2nd (Supp.) NSC 3538
[20] Supra 10
[21] Supra 10
[22]SardarSyednaTaherSaifuddinSaheb v. State of Bombay [1962] Suppl. 2 SCR 496, Raja Bira Kishore Deb v. State of Orissa (1964) 7 SCR 32, Shastri Yagnapurushadiji and others v. Muldas Bhundardas Vaishya and another (1966) 3 SCR 242 : AIR 1966 SC 1119 and S.P. Mittal v. Union of India and others (1983) 1 SCC 51
[23]Nallor Marthandam Vellalar and others v. Commissioner, Hindu Religious and Charitable Endowment and others, (2003) 10 SCC 712.
[24] Supra 11
[25] Supra 10
[26] Supra 5
[27] 67 C.L.R. 116, 12
[28]Nar Hari Sastri and Ors. v. Shri Badrinath Temple Committee, 1952 SCR 849
[29] Ibid
[30] Supra 21
[31] Ibid
[32] AIR 2014 SC 1863
[33]Writ petition (Civil) No 494 of 2012.
[34] AIR 1997 SC 3014
[35]AcharyaJagadishwaranandaAvadhuta v. Police Commissioner, Calcutta, AIR 1984 SC 51
[36]Mohd.HanifQuareshi v. State of Bihar, AIR 1958 SC 731
[37]https://www.thehindu.com/news/national/other-states/bulandshahr-cow-slaughter-case-solved-claim-up-police/article25776420.ece, last seen on 31/03/2019
[38]N Aditya v. Travancore Dewaswom Board, 2nd (Supp.) NSC 3538.
[39] Supra 35
[40]https://timesofindia.indiatimes.com/india/Six-killed-in-Puri-Rath-Yatra-stampede/articleshow/3196615.cms, last seen 31/03/2019
[41]Moulana Mufti SayeedMohd.NoorurRehmanBarkariq v. State of West Bengal, AIR 1999 Cal 15
[42] Church of God (Full Gospel) in India v. K.K.R.M.C. Welfare Association, AIR 2000 SC 2773
[43]https://www.nytimes.com/2019/01/02/world/asia/india-women-wall-sabarimala.html, last seen 31/03/2019
[44]https://www.brainyquote.com/quotes/dalai_lama_101711, last seen 31/03/2019
[45] Supra 5
[46] Ibid
Good
Thankyou vineet.