By Apoorva Singh
The Supreme Court (SC) in 2018 allowed entry of women, aged between 10-50 years, into the Sabarimala temple[1](Sabarimala Judgement). The majority judgement was given by 4:1, with Indu Malhotra J. as the only dissenting one on the bench.
Recently SC referred the review petition filed against the Sabarimala Judgement to a larger bench of 9 judges, by a 3:2 majority, to examine the interplay between the right to freedom of religion under Article 25 and right of various religious denominations under Article 26 of the Constitution of India (Constitution).[2] The SC also has to determine the extent to which the courts can inquire into the essential religious practices of several religions on the touchstone of constitutional morality. Thus, other issues concerning essential religious practices across several religions like, ban on women’s entry into the Sabarimala temple, ban on women’s entry to mosques, bar on Parsi women married outside the faith from entering the fire temple and genital mutilation among Dawoodi Bohra community have been referred to the future-bench.[3]
The pre-determination of issues for a larger bench is seen as a judicial overreach by the dissenting judges. They believe that the review bench was constituted only to decide on a narrow question of justiciability of a review petition and was not burdened with the task of determining issues for the future bench.[4] Currently, the three matters discussed above related to the entry of women into mosques, entry of non-Parsi women into fire temples and practice of female genital mutilation in Dawoodi Bohra Community are pending in the SC. Nariman J. and Chandrachud J., the dissenting judges, pointed out that the original benches which will hear the petitions concerning Parsi women, Muslim women and women of Dawoodi Bohra community can “either apply the Sabarimala judgement, distinguish from the judgement or refer an issue/issues which arise from the said judgement to a larger bench.”[5] In their opinion, it was not necessary to refer such pre-decided issues clubbed with larger questions of constitutional interpretation, to a future bench. Such a step in itself is an unprecedented one. However, the Chief Justice of India made a statement that referring questions to the future bench is an innovative step and since no one’s rights are affected, such a step cannot be agreed to be a problematic step.[6]
Keeping in view the burden of pending cases on the courts, this innovative step appears to be a step in the right direction but the objective behind clubbing these issues which are traversing inter-religions, with little in common, is still conceptually unclear. Behind this unprecedented move of SC, a pre-decisiveness of bringing a wave of constitutional morality across religious practices can be sensed. This attempt to paint religions with the same colour will hinder with the rights of the individuals and the rights of the religious denominations.
This article aims to discuss the possible entanglements which might be created in between religious practices, protected under Article 25 and 26, and constitutional morality, having an expansive interpretation under Article 25 and 26.
Secular v. Religious: singularly treading on one path will be problematic
Article 25 gives individuals the freedom of conscience but is subject to public order, health, morality and other Fundamental Rights of the Constitution.[7] Article 26 gives religious denominations the freedom to manage religious affairs and is subject to public order, health, morality but not to other fundamental rights.[8] Religious denominations under Article 26 can be defined as “members forming sects or sub-sects of a religion designated by a distinctive name.”[9]
The followers of Lord Ayyappa of Sabarimala temple did not qualify as a religious denomination in the Sabarimala Judgement. The majority judgement decided that since there was “no separate name given to the worshippers of this particular temple, it cannot be concluded that there is any common faith which binds the followers together and there is no organisational entity in between them such as to constitute the said temple into a religious denomination.”[10] However, Indu Malhotra J. in her dissenting opinion disagreed with this finding and decided that the followers of Lord Ayyappa are known as Ayyappans, they believe in Lord Ayyappa, observe vratham which defines a common faith between the followers and have Travancore Devaswom Board as the organisational entity to manage affairs. According to the dissenting opinion, objective requirements to be a religious denomination were satisfied by the Ayyappans.[11]
After viewing the aforesaid objective standards required for qualifying as a religious denomination, the Parsi Community, the Dawoodi Bohra Community, the Muslims and the religious places of the three will qualify as religious denominations.
To mention again, qualifying as religious denomination gives them the right under Article 26(b) to manage their own affairs in the matters of religion. However, this right is limited only to religious matters.[12] For deciding a practice as religious, it needs to be regarded by the worshippers as an integral and essential part of the religion. Essential religious practices, whenever in question, can be determined “only through close examination of the rituals, perusal of scriptures and time immemorial practice of the customs and rituals”.[13]
For determining if the practice of banning women aged between 10-50 years was an essential religious practice for Ayyappans, the dissenting judgement did a close examination to understand the context behind such a practice. The dissenting judgement emphasised on the form and character of the deity of Lord Ayyappa[14]. The Ayyappans believe that Lord Ayyappa resides in Sabarimala temple in the form of Naishtik Brahmachari, which is to observe abstinence and seclusion from the women-folk and live a life of utmost austerity and discipline.[15] This form and character of the deity give an exclusionary character to the practice of vratham, which requires men to practice abstinence and seclusion from the women-folk, including their wives, daughters and other female relatives, for 41 days, to finally be able to ascend the 18 sacred steps to sanctum sanctorum of the temple.[16] The restriction on women’s entry into the temple should be understood in this context. This form and character of deity are essential for understanding the context behind a practice because almost all other 1000 temples of Lord Ayyappa, where he resides in a different form, allow the entry of women.
As discussed above the rights of individuals to practice, profess and propagate one’s religious beliefs under Article 25 and the rights of religious denominations to manage their religious affairs under Article 26 are subject to morality. Essential religious practices of an individual’s religion or of a religious denomination need to confer to this parameter of morality to get constitutional protection. However, the SC has weighed this morality in parity with the constitutional morality, i.e. morality needs to viewed from a touchstone of equality, non-discrimination, dignity as viewed in Article 14, 15 and 21 of the Constitution.[17] Sabarimala judgement outweighs religious rights with constitutional morality of gender justice and keeps the rights of an individual follower of lord Ayyappa to practice his religious beliefs, on the backfoot. Chandrachud J. in his majority judgement, observed that the restriction on the entry of women because of the reason that people there are practising celibacy imposes an unwarranted burden on the women to ensure that men remain celibate.[18] Nevertheless, this reasoning obliterates and undermines the belief of Ayyappans for observing Vratham, away from a women’s company, as a faithful practice of bringing spiritual well-being to them.
This interpretation of morality, whenever applied to Article 26, will contract the rights of the religious denominations, which interestingly are not subjected to other fundamental rights. The dissenting judgement, while defining equality and non-discrimination as one facet of constitutional morality, observed that this morality could not be stretched to matters of religion in isolation. Under the constitutional scheme, there is a need to strike a balance in “between the principles of equality and non-discrimination on one hand, and the protection of the cherished liberties of faith, belief, and worship guaranteed by Article 25 and 26 to persons belonging to all religions in a secular polity, on the other hand.”[19]
Therefore, the need arises to dexterously harmonise religious beliefs with constitutional morality instead of blindly painting them with the principles of rationality. In order to be able to harmonise the two successfully, the courts need to delve deeper into the theologies of the religion.
Exclusion of women’s entry into mosques and bar on women married to non-Parsis from entering into the fire temple can only continue if these practices form an integral and essential part of their religions. The Bombay High Court, in the case of entry of women in Haji Ali Durgah, allowed women’s entry after a perusal of the passages from the Koran and the Hadith.[20] In the Court’s opinion, these religious doctrines did not mandate Islam with the exclusion of women from the inner sanctum of shrines.[21] The Court observed that the practice was not practised from time immemorial as women’s entry was allowed until 2012.[22] However, dis-allowing non-Parsis from entering into the fire temple does not singularly affect only the rights of the women. Women marrying outside the Parsi community or men converting to other religion are disallowed equally from entering into the fire temple. Thus, essentiality behind this practice of allowing only Parsis into the religious place should be analysed by perusing religious scriptures in the light of safeguarding historical religious identity and community norms.
The third issue is the practice of female genital mutilation (FGM) within the Dawoodi Bohra community. FGM prima facie appears to be an abhorrent practice and violative of women’s right to dignity. The practice of FGM at a younger age is devoid of consent and is a painful exercise. Indu Malhotra J. opined that Court’s intervention could only be allowed when the matter of faith is practising something “pernicious, oppressive and a social evil like Sati.”[23]
It cannot be denied that in order to lift our society from the confinements of “obscurantism, superstition and anti-social practices” intervention is necessary.[24] Nevertheless, judicial intervention should only be restricted to clearing the blurry lines in between religious practices and grave superstitions, which facilitate an anti-social practice as a religious practice.
There are no straight-jacket principles or standardised techniques to clear these blurry lines. The decisions of the Court can be affected by the subjective notions of the judges while determining what amounts to a superstitious practice or is anti-social in nature. The best approach could be to decide on a case to case basis by first, determining the context behind a religious practice and if it adds any exclusive character to the religion.[25] Second, only after being central to religion, religious practice should be tested against the subjective standards of morality, which can have degrees of qualifiers.[26] However, in a hurry to prove the Indian judiciary as a progressive and liberal institution, the ‘context’ behind timeless customary practices, should not be ignored as was done by the majority opinion in Sabarimala Judgement.
Apoorva Singh is a 4th Year B.A. LLB. (Hon.) Student at The National University of Juridical Sciences (NUJS), Kolkata.
[1] Indian Young Lawyers Assn. v. State of Kerala, (2017) 10 SCC 689: WP (Civil) No. 373 of 2006.
[2] Sabarimala case: Supreme Court upholds referring religious questions to larger Bench, frames 7 questions of law, February 10, 2020; available at: https://www.thehindu.com/news/national/sabarimala-case-supreme-court-upholds-referring-religious-questions-to-larger-bench-frames-7-questions-of-law/article30780943.ece. (Last visited on 12/02/2020)
[3] Kantaru Rajeevaru v. Indian Young Lawyers Assn, RP (Civil) No. 3358/2018 in WP (Civil) No. 373 OF 2006 (Ranjan Gogoi J., A.M. Khanwilkar J. and Indu Malhotra J.).
[4] Id, (R.F. Nariman J. and D.Y. Chandrachud J.).
[5] Id, (R.F. Nariman J. and D.Y. Chandrachud J.).
[6] Sabarimala case, supra note ii.
[7] Article 25, Constitution of India.
[8] Article 26, Constitution of India.
[9] Mahendra Pal Singh, V.n.Shukla’s Constitution of India, 12th ed., p 266.
[10] S.P. Mittal v. Union of India & Ors. (1983) 1 SCC 51.
[11] Indian Young Lawyers Assn. v. State of Kerala, (Indu Malhotra J.).
[12] Id., p 268.
[13] Sri Venkataramana Devaru v State of Mysore (1958) SCR 895.
[14] Indian Young Lawyers Assn. v. State of Kerala, ¶ 7.5 (Indu Malhotra J.).
[15] Id.
[16] Indian Young Lawyers Assn. v. State of Kerala, ¶ 13.12 (Indu Malhotra J.).
[17] Indian Young Lawyers Assn. v. State of Kerala, (Majority opinion).
[18] Indian Young Lawyers Assn. v. State of Kerala, ¶ 55 (D.Y. Chandrachud J.).
[19] Indian Young Lawyers Assn. v. State of Kerala, ¶ 11.8 (Indu Malhotra J.).
[20] Noorjehan Safia Niaz v. Haji Ali Dargah Trust, 2016 SCC (online) SC 1199.
[21] Id.
[22] The equality of entry, September 08, 2016; available at: https://www.thehindu.com/opinion/lead/The equality-of-entry/article14626846.ece.
[23] Indian Young Lawyers Assn. v. State of Kerala, ¶ 85 (Indu Malhotra J.).
[24] Gilles Tarabout, Ruling on Rituals: Courts of Law and Religious Practices in Contemporary Hinduism, April 30 2019, South Asia Multidisciplinary Academic Journal [Online] 6; available on https://journals.openedition.org/samaj/4451.
[25] Indian Young Lawyers Assn. v. State of Kerala, (Indu Malhotra J.).
[26] Indian Young Lawyers Assn. v. State of Kerala, (Majority opinion).
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