The state plea to change its position was resisted by the temple through senior advocate KK Venugopal. The case will now be taken up on February 20.
The Kerala government has changed its stance, once again, in the case before the Supreme Court of India relating to entry of women of all ages in Sabarimala temple. The state government told the court on November 7 that it is ready to allow women, irrespective of their age, inside the temple. This is the second time the State is changing its stance in the case.
Soon after elections in the state that resulted in the Left Front government coming to power, a controversy had erupted when Kerala’s new Devaswom Minister, Kadakampally Surendran, then in office for little more than a week, had indicated that the government would reverse the UDF government stance opposing women’s entry. When the matter came up for hearing on Monday before Justices Dipak Misra, Ashok Bhushan and R Banumathi, the Judges sought a clarification from the lawyer for Kerala, Senior Advocate Jaydeep Gupta,to unequivocally state Kerala’s stance in the matter. Gupta’s response to the query was that it supported the entry of women into the temple. The petition challenging the ban on women between the age group 10-50 in the temple shrine was filed in Supreme Court in 2006. The LDF government, which was in power in Kerala at that time, had chosen not to oppose the petition and had filed an affidavit supporting the entry of women to the temple.
The case was then referred to a 3-judge Bench and went into cold storage for nearly 8 years before it was finally listed for hearing in 2016. By then the UDF was in power in the State and various factors including a change in the political equations in the State made the Congress government re-think the stance of the government. At this stage the Congress-led UDF government proceeded to file an affidavit changing it’s earlier stance. Claiming that the government had made a mistake in 2007 and had omitted to consider certain facts, the affidavit stated that women cannot be permitted in the temple since the practice flows from the temple deity’s celibacy vows.
The UDF government claimed that the practice is,“an essential and integral part of the right of practice of religion of a devotee and comes under the protective guarantee of the Constitution under Articles 25 and 26 which have been held to contain guarantee for rituals, observances, ceremonies and modes of worship which are an integral part of religion.”
However, with the Left Front returning to power in May 2016, there were expectations on a fresh look at the issue. Contrary to these expectations, the LDF government had, on July 11, submitted in the Supreme Court that it stood by the stance taken by the UDF government. However, finally on November 7, it has stated that it stands by the progressive position.The case is now posted for hearing on February 20 next year. The Court will also consider various intervention applications on that date.
Interestingly, however—in a move to possibly delay the issue further–the Travancore Devaswom Board suggested at the last hearing that the matter should be referred to a Constitution Bench. Senior Advocate KK Venugopal, who appeared for the Devaswom Board, put forth the suggestion but Justice Dipak Misra quipped in a lighter vein that, “We’ll hear it first, otherwise it’s an insult to our intelligence”. The Devaswom Board is making this suggestion for the second time. It had sought the same during the hearing of the case on July 11.
Another similar litigation relating to entry of women in Haji Ali Dargah had just concluded in the Supreme Court. In that matter, it was the Bombay High Court had decided that women should be allowed into the shrine. The Durgah trust had inexplicably stopped entry there in 2011. Until then women had entered! This was challenged by the Haji Ali Dargah Trust in Supreme Court. But subsequently the Trust had chosen not to contest the matter and had told the Supreme Court that it will implement the decision of the High Court.
Sabrangindia has been consistently carrying articles on this issue. A critical piece by former Director General of Police (DGP) RB Sreekumar on the issue sheds light on the crucial issue of faith and constitutional first principles.
Also Read: Unholy and Unconstitutional: the ban of women from Sabarimala
Issues at Stake
Judicial scrutiny will be on how far can a gender discriminatory custom be allowed under the guise of it being an essential religious custom?
Can the individual right to religion (Article 25) be completely overshadowed and abrogated by a denominational right to manage internal affairs [Article 26(b)]?
Does preventing entry of ‘menstruating women’ in temples qualify as discrimination under Article 15?
Individual and group rights, their understanding and counter-balancing will be adjudged.
Genesis
Initially, the ban on ‘menstruating women’ was enforced under Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965, which states that “Women who are not by custom and usage allowed to enter a place of public worship shall not be entitled to enter or offer worship in any place of public worship”. It is as distressing an irony as any that these rules were made under a legislation, Kerala Hindu Places of Public Worship (Authorisation of Entry) Act 1965, meant to attack discrimination and facilitate temple entry. In 1991, the Kerala high court upheld the ban in the S. Mahendran v the Secretary, Travancore case and directed the Devasom Board to implement it. The judgment went unchallenged for 15 years until the India Young Lawyers Association revived the issue in Supreme Court through a PIL contending that Rule 3(b) violates constitutional guarantees of equality, non-discrimination and religious freedom (Articles 14, 15 and 25). The PIL, filed in 2006, has seen many delays. The Kerala high court in 1991 held that the Sabarimala temple was within its rights to decide what were essential practices and to that extent, the custom of disallowing menstruating women into temple enjoyed constitutional sanction. It further held that the restriction on menstruating women was a restriction based on age and not ‘women’ as a class. Para 22 of the judgment, the high court is significant in as much as it read:
“The position that emerges is that a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion. No outside authority has any jurisdiction to interfere with the decision of such religious denomination. Article 26(b) gives complete freedom to the religious denomination to manage its own affairs in matters of religion. The only restriction imposed by that article is that the exercise of the right is subject to public order, morality and health.”
Article 26(b) of the constitution reads: “Subject to public order, morality and health, every religious denomination or any section thereof shall have the right to manage its own affairs in matters of religion”. The challenge before the Supreme Court pointed out that the high court erred grievously in interpreting the limitations on the exercise of Article 26(b). For the custom of disallowing menstruating women to pass constitutional muster, it must have satisfied two tests – (i) the custom should have formed part of ‘essential religious practice’, and then examined on the touchstone of ‘public order, health and morality’. Besides, the denominational right to manage internal affairs must not be interpreted so widely as to totally abrogate the individual right of religion for women.
Twin Concerns: Essence of Religious Practice and Constitutional Paradigms
The constitution guarantees individual rights [Article 25(1)], as well as group rights [Article 26(b)], but these guarantees are for ‘religious practices’ and not for all practices associated with religion. Over the years, the Supreme Court has developed a questionable, if not controversial doctrine of ‘essential religious practices’ to determine which religious practices enjoy constitutional protection and which do not. As with other such issues in developing jurisprudence, the Court has not taken a consistent view and judgements have been marked by a changing gaze on what constitutes essential religious practices and what not.
For quite some time now, the high threshold under this doctrine requires the denomination to demonstrate a contested practice as so central that its absence will change the nature of the religion fundamentally (Ananda Margi II case, Haji Ali case). So while the “non-entry” of women can be a religious tenet, in this case, it cannot be readily presumed that its regulation will fundamentally and irreversibly challenge the existence of the sect and its core belief system.
RB Sreekumar’s seminal article for Sabrangindia shows how, in fact the issue of mensturation is contested and complexes, faith actually even worshipping deities shown in this menstrual cycle.
In the landmark judgments of Naz Foundation and Shreya Singhal, ‘morality’ has been interpreted as ‘constitutional morality’ and not popular or individual morality. Constitutional morality may be understood as the core framework of values and principles like equality, non-discrimination, dignity, rule of law etc., that characterises and justifies the constitution. In the Sabarimala case, there is a very strong presumption that the controversial custom of restricting women offends the value of ‘non-discrimination’ which is the central pillar of that constitutional morality.
Custom and Equality
Article 15 of the constitution only prohibits the state from discriminating against any citizen on the grounds of religion, race, caste, sex and place of birth. When reminded of this provision, the Kerala high court said,
“Women who are not by custom and usage allowed to enter a place of public worship shall not be entitled to enter or offer worship in any place of public worship. That amounts to a reasonable restriction and the entry in Sabarimala temple is prohibited only in respect of women of a particular age group and not women as a class.”
The challenge demonstrates how the high court merely mechanically interpreted the discrimination between menstruating and non-menstruating women to be “reasonable classification” without engaging with the legitimacy of the classification. Why classify between those menstruating and those not in the first place? The discrimination is based on two levels – it targets women as a group at first instance and then employs an age filter to exclude menstruating women. If the classification was not based on sex, it should not have excluded women only. But the obvious fact is that classifying on the basis of menstruation will end up being a default classification on the basis of sex. Additionally, the objective of differentiation itself is constitutionally suspect and illegitimate. The objective of menstruating women is disallowed because they are seen as “incapable of being celibate” or “impure”. This is a refined way of saying they are impure because they can menstruate and they can reproduce. Purity is not and cannot be a constitutional ideal, especially since the measures of purity are defined by and sculpted from vicious structures and wellsprings of casteism and patriarchy.
The Critical Balance: Individual and Group Rights
When confronted with the question of the relationship between individual and denominational rights, the high court took the literal route and reasoned,
“The freedom of conscience and freedom to speak, profess and propagate religion guaranteed under Article 25 of the constitution is subject not only to public order, morality and health, but also subject to the other provisions of Chapter III. It necessarily implies that the right to freedom of religion guaranteed under Article 25 is subject to the freedom to manage religious affairs guaranteed under Article 26(b) of the constitution.”
This means that if there is a conflict between individual claims of religious freedom and denominational claims of management of religious affairs, the denominational claims can completely abrogate the rights of the whole group such as women, Dalits and dissidents. No attempt was made to balance these rights or even harmonise them. This is constitutionally questionable, even regressive for various reasons. The court failed to consider if a group right makes sense independently on its own without the individual right to practise religion.
Deserting the mandate of social reform
According to Article 25(2) (b), the state has the overriding power to bring a legislation to provide for social reform or throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. This power can be used to reform all retrograde aspects of religious practice and customs, especially in matters of temple entry. Article 25(2) (b) is living proof that the constitution-makers were quite wary of unfair, discriminatory practises within religious customs and committed to purging them. The claims of sacrosanctity of religious customs are belied by the history of legislative interventions banning customs relating to Sati, child marriage, Devadasis and untouchability.
The controversial Kerala Hindu places of Public Worship (Authorisation of Entry) Act 1965 was born out of this very constitutional prerogative. Section 3 of the Act provides that no Hindu, of whatever section or class, shall in any manner be prevented, obstructed or discouraged from entering such place of public worship (meant for Hindus), or from worshipping or offering prayer, there at, or performing any religious service. Though Section 3 of the Act prohibits discrimination against any class in temple-entry, Rule 3(b) goes on to do exactly that by preventing women who were customarily prohibited from entering or worshipping at any place of public worship. It is an established and fundamental rule of statutory interpretation that ‘rule making’, which is delegated legislation, cannot be interpreted in a way to supplant the provisions of the enabling Act but only to supplement it. The state cannot claim rule-making power for the objective of facilitating temple entry and proceed to achieve exactly the opposite goal. There is more than a mistake here – Rule 3(b) has the odour of bad faith and all the trappings of a concealed constitution scandal. The rule cannot be allowed to swallow the whole edifice of the social reform legislation itself and therefore must be struck down.
Where will this end ?
The Sabrimala Case has traversed a decade. The Sabarimala case represents not just the hopes of devout women seeking entry into the temple, but also those who wish a strong, cogent constitutional precedent be established for the future. The battle for gender justice, individual rights and non-discrimination cannot be waged on only observations, interim orders of the court. This case is an opportunity for the court to give us a precedent that firmly entrenches constitutional morality in our political vocabulary and liberates individual rights from the choking hold of group rights. How the Supreme Court navigates through these invisible fault lines of religious and constitutional morality will tell us if ten years were too short.