In the earlier part, I had provided a brief background to the case that was before the Court, the issues/questions that were placed before the Constitution Bench for its consideration, and the Judgement delivered by the Bench. In this part, let us explore those four questions and a few other aspects of the Judgement.
Maintainability
Students of Law who are reading this blog might laugh at this point: how could maintainability be taken seriously in a PIL? Justice Indu Malhotra answers this question in her dissenting judgement:
(P.
7.2) “The right to move the Supreme Court
under Article 32 for violation of Fundamental Rights, must be based on a
pleading that the Petitioners’ personal rights to worship in this Temple have
been violated. The Petitioners do not claim to be devotees of the Sabarimala
Temple where Lord Ayyappa is believed to have manifested himself as a ‘Naishtik
Brahmachari’. To determine the validity of long-standing religious customs and
usages of a sect, at the instance of an association/Intervenors who are
“involved in social developmental activities especially activities related to
upliftment of women and helping them become aware of their rights”, would
require this Court to decide religious questions at the behest of persons who
do not subscribe to this faith.”
This passage tells us that the question of maintainability is not only that of technicality, but in matters like these, it forms the core of the case. This point was highlighted by Senior Advocate V Giri while arguing for the review petitions in the same case. In the dissenting Judgement, Justice Malhotra has cautioned the Court of the consequences of allowing PILs like these, she writes:
(P. 7.3) “The absence of this bare minimum requirement must not be viewed as a mere technicality, but an essential requirement to maintain a challenge for impugning practises of any religious sect, or denomination. Permitting PILs in religious matters would open the floodgates to interlopers to question religious beliefs and practises, even if the petitioner is not a believer of a particular religion, or a worshipper of a particular shrine. The perils are even graver for religious minorities if such petitions are entertained.”
What is oppressive or discriminating in a particular religion is for those who practice that religion to decide. If a section of those believers feel that a particular custom or usage is oppressive or discriminating they have the right to approach the Court. This concept has been recognised even in the Judgements of the Chief Justice (Dipak Misra) and Justice Nariman. There can be a deviation from this in case the ‘oppressed’ section is literally silenced from making its claim. With reference to the Sabarimala case, I think that it would be too foolish to assume that every women devotee is too terrorised from approaching the Court! That assumption by itself would be discriminatory.
The Supreme Court of India is no ordinary Court. It is a Constitutional Court. By accepting a PIL filed by a party which doesn’t subscribe to the said faith, the Court has ‘opened the floodgates to interlopers’, if I may borrow Justice Malhotra’s words. This could have grave social consequences as ours is a pluralistic society. The sound thing for the Constitution Bench was to dismiss this PIL on grounds of maintainability while stating that it would adjudicate the matter if any affected party approached the Court through a writ petition under Article 32.
The Test of Article 14, 15 and 17
In 1952, the Bombay High Court, in the Narasu Appa case held (in majority) that all laws, including personal and religious laws, must be tested on the touchstone of fundamental rights. However, two judges had held that this touchstone should not apply to religious practices and personal laws. This was a classic case to review that judgement. Justice Indu Malhotra partly deals with this judgement:
(P. 8.2) “It would compel the Court to undertake judicial review under Article 14 to delineate the rationality of the religious beliefs or practises, which would be outside the ken of the Courts. It is not for the courts to determine which of these practises of a faith are to be struck down, except if they are pernicious, oppressive, or a social evil, like Sati.”
Religious practices cannot be tested solely on the basis of rationality and Article 14, unless they are ‘pernicious, oppressive or a social evil’. Some may then point out that this was exactly what the petitioners argued: that the practice of restricting the entry of women within the notified age into the temple is ‘pernicious and oppressive’.
In all humility, I submit that such an argument is fundamentally flawed because all women devotees of Lord Ayyappa are not restricted from offering prayers to him in any other temple of the deity. And most importantly, not all women are barred from entering Sabarimala. In fact, Sabarimala has an inflow of lakhs of women. It is only women in the notified age group that are not allowed, therefore, the argument that the practice is ‘pernicious and oppressive’ doesn’t stand the test of Article 14 and 15.
Let me now come to Article 17 (Untouchability). I must confess that I have great respect for Justice Chandrachud but I beg to disagree with him on his interpretation of Article 17. I am afraid he has stretched the argument too far. He observed:
“The social exclusion of women, based on menstrual status, is a form of untouchability… Notions of ‘purity and pollution’ which stigmatise individuals, have no place in a constitutional order.”
The assumption, the context of this case, is totally misconceived. Women in the notified age are not barred from entry because of menstruation. As I have mentioned earlier, women of this very age can worship the Lord Ayyappa in hundreds of other temples. They are not allowed only in Sabarimala because Lord Ayyappa in there has taken the form of a “‘Naishtika Brahmachari’ – eternal celibate. Therefore, this is not a case which must be seen from the prism of Article 17, but of Article 25 and 26. To aptly summarise in the words of senior advocate Rajeev Dhawan, “untouchability does not extend to all kinds of ostracism and constitutional morality includes both equality and religious freedom”.
This in short, substantiates my point that the argument of the petitioners doesn’t stand the test of Article 14, 15 and 17.
Essential Religious Practice (Article 25)
India is an ancient civilisation governed by rule Law. With reference to this case, the said practice is not a part of the Vedas but it is part of the Shastra. Because the said practice is not a part of the Vedas, the Courts cannot rely only on religious texts to examine whether this practice is essential to the religion. It has to go beyond the religious texts and the principle of rationality. Moreover it is also unequipped to make such determinations. I rely on the Supreme Court’s judgement in the Bijoe Emmanuel vs State of Kerala case in which the Court held that religious beliefs held by persons cannot be tested on the grounds of rationality.
The presiding deity, Lord Ayyappa is believed to have manifested himself in the form of a ‘Naishtika Brahmachari’, i.e. eternal celibate. Sabarimala is believed to be the abode of Lord Ayyappa, he has not manifested himself in other temples therefore, the Sabarimala Temple has a special character which has to be recognised and respected.
Worship has two elements: worshipper, and the worshipped. The right to worship under Article 25 cannot be claimed in the absence of the deity in the particular form in which he has manifested himself. This implies that the right to worship at Sabarimala is an internal question, something which has to be answered by community of Sabarimala devotees themselves.
The right to worship Lord Ayyappa in Sabarimala in the form of ‘Naishtik Brahmachari’ also falls under the domain of Article 25(1), which the Court should have protected.
Religious Denomination (Article 26)
Article 26 provides Constitutional immunity to religious denomination in managing their religious affairs on their own, subject to Constitutional provisions. It cannot be disputed that the devotees of Lord Ayyappa share a common name (“Ayyappans”), have common beliefs (that Lord Ayyappa has manifested himself in Sabarimala as a ‘Naishtika Brahmachari’) and have common practices (that are observed in the 41 day vratam).
The Supreme Court in the S.P Mittal vs. Union of India and in the Shirur Mutt case held that the word ‘religious denomination must derive their colour from the word ‘religion’ and must satisfy three conditions:
“80. (1) It must be a collection of
individuals who have a system of beliefs or doctrines which they regard as
conducive to their spiritual well-being, that is, a common faith;
(2) Common organisation; and
(3) Designation by a distinctive name”#
The devotees of Sabarimala satisfy all the three conditions:
(1) They are a collection of individuals who
believe that Lord Ayyappa has manifested in Sabarimala in the form of a
‘Naishtika Brahmachari’
(2) They have a common organisation, which is
statutory in this case
(3) They are called ‘Ayyappans’ – a distinctive name
It must also be noted that the Supreme Court has time and again stressed that the formula applied by it in the context of Article 26 is not a straight-jacketed one but a working formula. It is also pertinent for us to look at Justice Chinnappa Reddy’s concurring Judgement in the S.P Mittal case in which he noted that the judicial definition of a religious denomination laid down by the Court is, unlike a statutory definition, a mere explanation. He also observed that any freedom or right involving the conscience must be given a wide interpretation, and the expressions ‘religion’ and ‘religious denomination’ must be interpreted in a “liberal, expansive way”.**
Miscellaneous matters
One of the questions framed by the three-judge Bench for the Constitution Bench was:
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)?
Since I have submitted that the Ayyappa Temple in Sabarimala has a denominational character, let us look at the other part of the question: 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)?
It is true that the Temple is managed by a statutory board, but it is not funded out of the Consolidated Fund of India. It must also be noted that in any event Article 290-A does not take away the Fundamental Right guaranteed under Article 26 as the Fundamental Rights overrides other provisions of the Constitution.
Conclusion
I am not in dispute at all that the society must keep itself in sync with changing times. I also don’t dispute that the Courts, with special reference to the Supreme Court, is an agent of change. I am no lawyer or a scholar, but with all humility at my command I would submit that the Supreme Court should not be selective in its approach of enforcing Constitutional morality. What is Constitutional morality? In a pluralistic society like ours Constitutional morality requires respect and tolerance for different faiths and beliefs, which have their own sets of beliefs practices that might appear immoral or irrational to outsiders.
Frankly speaking, Article 14, 15 and 21 will apply against all religions and many practices adopted by them. If the Court selects a practice and proclaims Constitutional morality, it will have grave social ramifications in a young and pluralistic society like ours that has a history of centuries of civilisation. As later Mr Arun Jaitley said, if the Court is willing to proclaim and strike it must do so uniformly.
Constitutional morality is no doubt important. But we must not stretch it too far that we end up by reducing our magnificent Constitution, which is a living document, to just another ‘holy book’. I will sign off with this thought.
*Emphasis is mine
Sources:
- 1. Bombay High Court Judgement in Narasu Appa case
- 2.
Concurring
Judgement of Justice DY Chandrachud
- 3. https://www.thehindubusinessline.com/blink/cover/supreme-court-order-order/article25201506.ece
- 4. Bijoe Emmanuel vs State of Kerala- https://indiankanoon.org/doc/1508089/
5.
#Supreme Court
Judgement in S.P Mittal vs. Union of India case
6.
**Quoted
from Justice Indu Malhotra’s dissenting Judgement (in which she explains the
concurring judgement in the SP Mittal case)
Comments
Post a Comment