Sabarimala: Ban on women fails four key tests of constitutional morality

Nearly a century ago, the princely state of Travancore was convulsing with the question of entry of lower castes into the temple at Vaikom. As holy a sage as Sree Narayana Guru, the saint of the Ezhavas, had been prevented from using the roads around the Vaikom Shiva temple. Upon the request of some citizens of Travancore, Mahatma Gandhi had sent Congress workers, including EV Ramaswami Naicker (Periyar), to help in the Satyagraha, demanding equal entry to the temple.

The Maharaja of Travancore at the time was Shri Chitra Thirunal – then 12 years old. His step-mother and regent, Sethu Lakshmi Bayi opposed equal temple entry. President K R Narayanan was to later recount, “During the Vaikom Sathyagraha, Mahatma Gandhi visited Kerala. At that time, Sree Chithira Thirunal was a young man, and had not ascended the throne. Gandhiji asked, 'When you attain majority and when you assume full authority, will you allow Harijans to enter the temple?' The twelve-year-old Maharajah said without hesitation: 'Certainly'. This was not the result of anybody's advice. This arose from his own mind; from his own thinking.”

In 1936, aided by his Diwan Sir C P Ramaswami Aiyer, the Maharaja opened temples to all Hindus. The neighbouring Maharaja of Cochin, in response, declared all people from Travancore as untouchables, but temple entry for all in Travancore became a fact.

Religion and our Founding Fathers

The father of India’s Constitution, Dr B R Ambedkar himself had engineered a number of ‘Dalit temple entry movements’ in colonial India. “The issue is not entry, but equality,” Ambedkar has famously said. The question of religion was a vexed one in the Constituent Assembly. There was sharp disagreement on whether the right to religion would include a limited right of ‘religious worship’ or a more expansive right of ‘religious practice’.

Members supporting the more expansive phraseology argued that the right had to be couched broadly, so as to not strip it of its content. Those on the other side pointed to the dangers of interpreting religion widely. A broad reading of religion would include within it the customs of “purdah, child marriage, polygamy, unequal laws of inheritance, prevention of inter-caste marriage,(and) dedication of girls to temples, practised in the name of religion.”

Ultimately, the Minorities Sub-Committee decided by a majority of 10:5, that the freedom to religion should be phrased broadly as “the right to freely profess, practice and propagate religion”. Rajkumari Amrit Kaur, Jagjivan Ram, G B Pant, P K Salve and B R Ambedkar formally dissented from this view.

Religion and the Supreme Court of India

The Constitution provides for the freedom of religion under Articles 25 and 26. Article 25 provides for the individual’s right to profess, practice and propagate religion. This is made subject to public order, morality and health and other provisions of the Fundamental Rights chapter.

Article 26 grants every religious denomination the right to “establish and maintain institutions for religious and charitable purposes.” It also provides them with the right to “manage its own affairs in matters of religion.” This provision, again, is subject to public order, morality and health.

Soon after the Constitution came into being, courts were confronted with a question they were ill-equipped to answer: What constitutes religion? The next question was to determine how far the State could interfere with religion. The Supreme Court answered this question in the Shirur Mutt case. It held that the term “religion” in Article 25 covers all rituals and practices that are integral to it. With time, the Judiciary developed the ‘essential religious practice’ test. Only those practices ‘essential’ to the religion were deemed deserving of Constitutional protection. Over the years, the test has been applied inconsistently. It has led to some conflicting results at times.

Last year, the Court relied on the doctrine to strike down the practice of Triple Talaq. More recently, the Court, while dealing with the Babri Masjid dispute, reiterated an earlier judgment that worship at a particular mosque alone, is not an essential part of the practice of Islam.

The Sabrimala dispute

Sabrimala is considered to be one of the holiest shrines in Hinduism. By most accounts, it is the largest annual pilgrimage in the world. The faithful believe that Lord Ayyappa’s powers derive from his ascetism, in particular from his being celibate. Those who believe in Lord Ayyappa and offer prayer are expected to follow a strict ‘Vratham’ or vow over a period of 41 days.

While there are numerous Ayyappa Temples in India, the one in Sabarimala is unique, in that it depicts Lord Ayyappa as a 'Naishtika Brahmacharya' -- his powers derive specifically from abstention from sexual activities. Males of all religions are allowed on the pilgrimage. However, women between the ages of 10 and 50 are barred from participating in the rituals.

The exclusion was given legal sanction by Rule 3 (b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules 1965. The validity of the rule and other provisions restricting entry of women was decided by the Supreme Court last month. A Constitution Bench of the Supreme Court in Sabarimala followed the path of Ambedkar and Mahaaj Chitra Thirunal. The Court, by a majority of 4:1, struck down the practice that barred entry of women into Sabrimala. It held that the exclusion of women between the ages of 10 and 50 from entry into the shrine was violative of the Constitution.

The Judgment of the Court

Chief Justice Dipak Misra and Justice Khanwilkar held that the devotees of Lord Ayyappa at Sabarimala did not constitute a “separate religious denomination”. They were thus not entitled to protection under Article 26. The Judges further held that the practice of excluding women did not constitute an “essential religious practice”. Crucially, the Judges also relied on Section 3 of the Kerala Hindu Places of Worship (Authorisation of Entry) Act of 1965. Section 3 of that Act stipulates that places of public worship must be open to all sections and classes of Hindus, notwithstanding any custom or usage to the contrary. It was held that Rule 3 (b) prohibiting the entry of women was directly contrary to this.

Justice Nariman concurred with this view. He further held that the right of women in the 10-50 age bracket to enter Sabrimala was guaranteed under Article 25 (1). This provision states that all persons are “equally entitled” to practice religion. He further deemed the Rule 3 prohibiting entry of women, to be violative of Article 15 (1) of the Constitution.

Justice Chandrachud began his judgment by emphasizing the transformative nature of the Constitution. According to him, the Constitution was designed to bring about a quantum change in the structure of governance. More crucially, it was a founding document, designed to "transform Indian society by remedying centuries of discrimination against Dalits, women and the marginalised". The Constitution has to be interpreted in this light.

Interpreting the word ‘morality’ used in Articles 25 and 26, the Judge held that morality referred to in the provisions refers to constitutional morality. It includes the values of justice, liberty, equality and fraternity. To pass Constitutional muster, religious practices must meet these four tests. Practices excluding the entry of women into temples do not withstand legal scrutiny on this point.

Justice Chandrachud also held that barring menstruating women from entering the shrine is violative of Article 17 -– the Constitutional provision prohibiting untouchability. The Judge holds that the concept of untouchability is grounded in the ideas of ‘purity and pollution’. It is these same notions that form the basis for excluding the entry of menstruating women into religious shrines. Justice Chandrachud holds that the use of “the ideology of “purity and pollution” is a violation of the constitutional right against untouchability.

The road ahead

The Supreme Court’s previous examination of questions about religion had been troubling. They were characterised by an arbitrary application of the essential religious practices test. This created a situation in which judges of a secular court, in a secular country, decided cases on a reading of religious texts, rather than statutory or constitutional provisions. Even more troubling was the Court’s refusal to test personal laws on the anvil of Fundamental rights. The Court decision in Sabarimala takes cognizance of both these issues and expresses the need for a detailed re-examination in the future.

Not everybody has reconciled to a judgment that has set aside “orthodox Hindu” practice. Nearly a century ago, the Congress gained entry into the princely state of Travancore, with the Vaikom satyagraha. Today, the BJP has attempted to expand its Kerala footprint, by whipping up public demonstrations to protest against the Sabarimala judgment. What remains to be seen is whether the transformative constitution and the need to obey the rule of law is a stronger national impulse than the need to keep away menstruating women away from the temple. The authors suspect that it is not God who is offended by the proximity of women. Rather it is the male devotee, who is unsure of his ability to maintain his vows. We leave the final verdict to the court of public opinion.

The authors are lawyers who practise in the Supreme Court. They tweet @sanjayuvacha & @parahoot