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Questioning the Dissenting Voice in the SabarimalaVerdictPRAKHAR SINGHPRAGYA ROY

Prakhar Singh (prakhar.lamp@gmail.com) is a LAMP Fellow from the 2017–18 cohort.Pragya Roy (roypragya35@gmail.com) is an MA student at Jawarharlal Nehru University,New Delhi.Vol. 53, Issue No. 44, 03 Nov, 2018

Justice Indu Malhotra set a dangerous precedent by stating that courts should not delve intothe rationality of religious practices. This article contests the arguments made by this lonedissenter to the majority verdict permitting the entry of women into the Sabarimala templein Kerala.

On 28 September 2018, Justice Indu Malhotra, the lone woman on a five-judgeconstitutional bench in the Supreme Court dissented with the 4:1 majority verdict thatdeclared the practice of barring entry for women in the Sabarimala temple between theages of 10 and 50 unconstitutional.

The CaseThe exclusion of women from the Sabarimala temple was sanctioned by the Kerala HinduPlaces of Worship (Authorisation of Entry) Act, 1965”. Rule 3(b) of the act states that “women who are not by custom and usage allowed to enter aplace of public worship, shall not be entitled to enter or offer worship in any place of publicworship.” However, this contradicts Section 3 of the same act which states that, places of

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public worship are to be open to all sections and classes of Hindus. The judgment countersthe provisions of this act under Articles 14, 15, 17), 25(1), and 26 of the Indian constitution.While the four judges expressed their views against this practice by pointing out its inherentgender discrimination, Justice Indu Malhotra countered by arguing that the right to equalitycannot override the right to worship. This attracted severe criticism from various quarters.

Arguments and Counter-argumentsAn attempt has been made to review the arguments made by Justice Malhotra in defence ofher standpoint.

Article 14 states that the state shall not deny to any person equality before the law ongrounds of religion, race, caste, sex, or place of birth. Malhotra argues that this article canbe “invoked only by persons who are similarly situated, that is, persons belonging to thesame faith, creed, or sect”; a definition that disqualifies the petitioners because they areconceived of as third-party interveners in this case.

Her argument, therefore, expects people, especially the women belonging to thiscommunity, to fight for their own cause. However, the deep internalisation of patriarchalreligious values may prevent them from recognising their own forms of oppression. There isalso an attempt to relegate this issue to the realm of internal affairs which is exclusivelyexpected to be taken up within the community. Prima facie, it appears that she expects theso called “third party” or petitioners to oversee the issue as mere passive spectators.However, this is not simply a matter pertinent to the community in question. While thetemple remains open to all men irrespective of their class, caste, religion or race, it deniesaccess to space to women on grounds of their physiological attributes. This makes it asubject of gender discrimination. Hence, every citizen, regardless of their individual socialpositions, has the right to question such customary practices that privilege one group whilemarginalising the other.

Article 15 (2)(b) asserts that no citizen on grounds of sex can be subject to any disability,liability, restriction or condition with regard to places of public resort. The appeal of theamicus curiae to include the temple as a "place of public resort” is invalidated by JusticeMalhotra on grounds that there was a “conscious deletion” of “temples” and “places ofworship” by the Constituent Assembly while writing the Indian constitution.

Article 17 abolishes “untouchability” and its practice in any form. Historically,untouchability was never understood to apply to women as a class and was simplyunderstood as untouchability based on caste prejudices. Hence, Justice Malhotra mentionsthat this particular form of exclusion would not tantamount to untouchability.

The counter-arguments presented by Justice Malhotra in rejecting the merits of article 15and 17, come from a restrictive practice of constitutional interpretation through an“originalist approach” that is based on the intent of the framers of the Constitution at the

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time of drafting the text. Raj (2018) writes that over time, originalism as a method ofconstitutional interpretation has been subjected to serious criticism while the “living tree”doctrine (the constitution as an evolving and organic instrument) has gained prominence.This calls for a thorough review of traditional institutions like caste and religion throughnovel approaches. Therefore, the exclusion of women from religious spaces on the groundsof them menstruating is a specific form of untouchability and social segregation. In thiscase, women belonging to the restricted age group become a caste category in themselves,subordinated by men, within religious dogmas of purity and pollution. Menstruation isviewed as a social taboo which dismantles the ceremonial purity that Ayyappa communitytries to preserve. Caste here is not perceived as an individual or a social or cultural group,but rather as a tool of oppression to create a sense of hierarchy between genders. Article 25 states that all persons are equally entitled to freely profess, practise andpropagate their religion. Over the years, the Supreme Court has developed a doctrine of“essential religious practice” that is protected under this article. Justice Malhotracontradicts the majority judgment and sides with the Travancore Devaswom Board forupholding exclusion of women as an “essential religious practice,” thereby guaranteeingprotection to this custom under Article 25. In absence of any scriptural evidence, she solelyleaves this determination to the Ayyapan community itself. She further argues that thecourts should not delve into the rationality of religious practices or try to determine whichpractices of a faith are to be struck down, except for the ones which are pernicious,oppressive, or a social evil, like Sati.

Article 26 gives freedom to every religious denomination to establish, maintain and manageits own affairs. As per S P Mittal v Union of India & Ors (1983), a religious denominationmust be a collection of individuals who have (i) a common faith; (ii) common organisation;and (iii) designation by a distinctive name. It was contended by petitioners that the devoteesof Lord Ayyappa do not constitute a religious denomination as they do not have a commonfaith, or a distinct name. The devotees are not unified on the basis of some distinct set ofpractices. Every temple in India has its own different set of rituals. It differs from region toregion. In contradiction to this view, Justice Indu Malhotra, taking a “liberal interpretation”,accords the Ayyapans a separate religious denomination.

ConclusionsAll these constitutional rights portray the contradiction between individual and collectivefaith systems. While premodern societies were governed by traditional religious bodies inpublic realms, contemporary societies have their own modern forms of governance, such asthe state and judiciary which perceive religion as a private affair giving the individualsfreedom to choose and practise their faith. This is not to contend that religion as agoverning institution has completely disappeared or that its influence in social, economic orpolitical domains has decreased in impact. Religion has morphed into differentconfigurations in modern societies and hence we need more holistic approaches tocomprehend its complexities.

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Justice Malhotra’s understanding of the “essentiality” of religious practices in Ayyappacommunity is flawed, because it is not formulated in isolation, but is influenced bypatriarchal structures which establish an ideological hegemony within the religious group.The rationality of any religion or a particular ritual is mostly determined and propagated bythe male leaders and members in the group. In order to perpetuate their domination, theytend to devise customs, often by the irresponsible interpretation of traditional texts, whichconsequently results in the subordination of women.

Further, her argument around demolishing certain social “evils,” while accepting others as“essential,” hierarchises violence and justifies it. Until a woman is burnt alive orexperiences violence which is as “severe” as Sati, she is expected to endure other “inferior”forms of violence.

Justice Malhotra sets a dangerous precedent by stating that courts should not delve into therationality of religious practices. One should not forget that if it were not for the judiciary’sactivism, the rigid societal structures would have still clawed on to the unbendingorthodoxy. A prerequisite of this judgment, however, would have been to find ways tosensitise the community and garner support from the Ayyappans themselves.

References:

ReferenceRaj, Thulasi K (2018): “Ways to Read the Constitution,” 28 August, Hindu,https://www.thehindu.com/opinion/op-ed/ways-to-read-the-constitution/art...

Case CitedS P Mittal v Union of India & Ors (1983): AIR, SC, p 1.

Image-Credit/Misc:

Image Courtesy: Modified. Wikimedia Commons/ AnjanaMenon at Malayalam Wikipedia[CC-BY-SA-3.0]