LLSabrimala:
Key Constitutional Issues
(The following post is based on my understanding of how oral arguments progressed in
Court, since I do not have access to the pleadings. Pointing out of errors would be very
welcome)
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Arguments in the Sabarimala Temple Entry case are underway before a three-judge
bench of the Supreme Court. Based upon the proceedings so far, it is important to
consider the following important constitutional questions, which the Court must address
in order to arrive at a satisfactory decision.
Recall that the key issue in the Sabarimala Case is the denial of entry to women between
the ages of 10 and 50, into the Sabarimala temple. This denial is justified by Rule 3 of
the Kerala Hindu Places of Public Worship Rules, framed under Section 4 of the
identically-named Act. Rule 3 prohibits women from entering a place of public worship
“at such time during which they are not by custom and usage allowed to enter.” The first
issue, therefore, pertains to the vires of the Rule itself.
A. Vires of Rule 3
As I understand it, Petitioners have argued that Rule 3 is ultra vires the parent Act, since
Section 3 of the Kerala Hindu Places of Public Worship Act specifies that
“notwithstanding anything to the contrary contained in any other law for the time being
in force or any custom or usage or any instrument having effect by virtue of any such
law or any decree or order of court, every place of public worship which is open to
Hindus generally or to any section or class thereof, shall be open to all sections and
classes of Hindus; and no Hindu of whatsoever section or class shall, in any manner, be
prevented, obstructed or discouraged from entering such place of public worship, or
from worshipping or offering prayers thereat, or performing any religious service
therein, in the like manner and to the like extent as any other Hindu of whatsoever
section or class may so enter, worship, pray or perform.” When this argument was raised
before the Kerala High Court twenty-five years ago, it was rejected on the ground that
women between the ages of 10 and 50 did not constitute a “class” or a “section” of
Hindus. This seems to me to be completely fallacious. Read plainly, a “class” or a
“section” is constituted by persons sharing certain common characteristics. Women
between the ages of 10 and 50 have been grouped together by the temple authorities
themselves, on the stated ground that they are likely to disturb the “celibacy” of the
deity. It is difficult to see how, in such circumstances, they do not constitute a “class”.
Even though the historical context of the legislation was to ensure the removal of castebased disabilities, it is crucial to note that the legislature chose not to use the word
“caste”, but used the much broader “class” and “section”. To read these words narrowly,
then, does not appear to me to be justifiable.
Section 3, however, also goes on to state that “Provided that in the case of a place of
public worship which is a temple founded for the benefit of any religious denomination
or section thereof, the provisions of this section shall be subject to the right of that
religious denomination or section, as the case may be, to manage its own affairs in
matters of religion.” The proviso, therefore, overrides the right under Section 3 in cases
of denominational institutions. In fact, the proviso echoes the language of Article 26(b)
of the Constitution, insofar as according religious denominations autonomy in
determining questions pertaining to religion. If, therefore, the conditions of the Proviso
are satisfied, then there might be a problem: the Court could read down the Rule to be
limited to situations where the proviso is satisfied. In other words, not every “custom or
usage” is protected by the Rule, but only such customs are usages that fall within Article
26(b). It is doubtful whether the Court can read down Rule 3 to this extent (I doubt that
it can), but it is certainly an option open to it. Consequently, let us consider other
arguments.
Assuming, therefore, that the Rule has been read down to accord with Section 3, the
second leg of the argument, then, would challenge the exclusion of women under the
said rule as being unconstitutional. Let us therefore consider the constitutional
arguments:
B. Constitutionality of Rule 3
The arguments on the constitutionality of Rule 3 would proceed along the same
direction. It is well-established, in Madhu Kishwar vs State of Bihar, that custom or usage
is subject to Part III of the Constitution. Therefore, the exclusion of women, insofar as it
is justified purely by reference to custom, is unconstitutional (it violates Articles 14, 15
and 25(1)). And insofar as Rule 3 permits such exclusion, it is unconstitutional (I am
assuming here that, as secondary legislation, the Rule is subject to Part III). However,
once again, the core question remains must be addressed separately: what happens if
the Rule – and the exclusion that it permits – is justified by recourse to the Constitution
itself? Let us therefore move to the constitutional arguments.
C. Article 25(1) as the Foundation of the Petitioners’ Case
The Petitioners have argued that they have an Article 25(1) right to enter the Sabarimala
Temple for the purposes of worship, since it is part of their constitutionally protected
“practice” of religion. While in most cases, a Court would not contradict this claim, as
long as it is genuinely and sincerely held, the Indian position – as we have seen earlier –
is rather different when it comes to judicial intervention into questions of faith. The
position is somewhat complicated by precedent: in Ismail Faruqui, the Supreme Court
held that “the right to worship is not at any and every place, so long as it can be
practised effectively.” However, the Court followed this up by noting “…unless the right
to worship at a particular place is itself an integral part of that right.” The distinction
between mosques and temples is relevant here: in monotheistic Islam, an individual
mosque may not have specific religious significance – while in Hinduism, individual
temples dedicated to specific deities are not substitutable in the same sense. For this
reason, despite Ismail Faruqui, the right to worship at a “particular place” could well be
“an integral part of… [the] right [to worship]” simpliciter in the present circumstances,
especially since the Sabarimala Temple is dedicated to a specific deity.
Notable, unlike other provisions of Part III, Article 25(1) is not, in its terms, only
enforceable against the State. It stipulates that “all persons are equally entitled to
freedom of conscience and the right freely to profess, practice and propagate religion.”
Consequently, individual interference with this right (through the temple authorities), or
interference by the Davaswom Board, would appear to be actionable under Article 25(1),
without getting into knotty questions of maintainability under Article 12. At any rate, it is
now well-established that the State’s obligations under Part III are not merely negative
obligations of non-interference, but extend to guaranteeing effective exercise of
fundamental rights. Consequently, at the very least, if the Petitioners’ claims under
Article 25(1) stand, they can call upon State aid to enforce their right of access.
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D. Article 26(b) as the Counterpoint to Article 25(1)
Article 26(b) guarantees the right of every religious denomination “to manage its own
affairs in matters of religion.” This appears to be the foundation of the Respondents’
case. It is therefore worthwhile to focus upon it a little closely. To fall within Article 26(b),
three conditions must be satisfied: (i) since Article 26(b) is subject to “public order,
morality, or health“, that preambular clause must not be attracted; (ii) the claimant must
be a “denomination”; (iii) the claim must pertain to “matters of religion“. With respect to
(iii), Petitioners are not disputing that the issue of temple entry is a matter of religion
(indeed, having themselves claimed a right to entry under Article 25(1), it is difficult to
see how they could get out of that). To the best of my understanding, they are also not
claiming that the Temple is a denominational temple – although the Supreme Court has,
in the past, laid down fairly rigorous tests in determining what constitutes a “religious
denomination” for the purposes of Article 26(b). Perhaps this is a question that will be
raised by the amici, or one that the Court will examine independently.
Petitioners are arguing, however, that the operation of Article 26(b) is barred by the
“morality” clause. In particular, they are arguing that the word “morality” is to be taken
to mean “constitutional morality” – and since “gender justice” is an integral part of
constitutional morality, denominational practices that go against gender justice are not
protected by Article 26(b). The bar on menstruating-age women, whether one spins it as
being based on the perceived uncleanliness of menstruation, or on the “celibacy” of the
deity, amounts to gross gender stereotyping, and therefore violates constitutional
morality.
I am sympathetic to the idea of constitutional morality, and have tried to fashion
arguments based on constitutional morality myself, in the past. However, I see at least
two problems with this argument, as it stands. The first is that insofar as Petitioners are
relying upon Articles 14 and 15(1) to establish gender justice as being part of
constitutional morality, both these Articles are expressly directed against the State.
Therefore, even if one was to accept that “morality” refers to “constitutional morality”,
the most that the Constitutional text seems to indicate is constitutional morality requires
the State not to discriminate on the basis of gender. In fact, a closer reading of the
constitutional text seems to militate against the Petitioners’ argument. Article 15(2),
which is horizontally applicable, is limited to securing non-discriminatory access to
“shops, public restaurants, hotels, and places of public entertainment.” Conspicuously,
religious institutions are excluded. In fact, Article 25(2)(b), which deals with the throwing
open of Hindu religious institutions to all sections of Hindus, is framed as permitting –
but not obligating – the State to make laws for temple entry. This would seem to
indicate that constitutional morality does not mandate gender equality in with respect
to access to religious institutions.
Secondly, the scheme of Articles 25 to 30 suggests that the Constitutional vision
strongly supports the rights of groups to cultural autonomy. Apart from Article
26(b), Article 29 guarantees the rights of minorities to preserving their language, script
and culture. Now, on what basis does one argue – purely from the constitutional text –
that the right to equality or gender justice necessarily overrides the principle of cultural
autonomy? On which side does constitutional morality weigh heavier? I am not arguing
that the Petitioners are incorrect – only that the constitutional text underdetermines the
question as far as constitutional morality is concerned.
My own argument – which I’ve recently made in an article – is slightly different. The
Constitution, I’ve tried to argue, is committed to an “anti-exclusion principle”: it
prohibits both the State and communities from treating individuals in discriminatory
ways, insofar as that discrimination blocks their access to crucial public goods, whether
material or symbolic. It seems to me that access to a temple is central to equal moral
membership in the cultural community, especially in a country like ours, where private
and public life is suffused with religion to such an extent. The denial of entry to women
on grounds such as menstruation, or breaking the deity’s celibacy, is a classic example
of gender-stereotyping, which would be uncontroversially unconstitutional if done by
the State. Given the place of the temple at the heart of community life, I would submit
that it is similarly unconstitutional in the present situation.
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E. The Temple as “Public Space”
The Bench appears to have framed the issue as a question of whether religious custom
can override the right to gender equality in the context of a public temple. With respect,
I do not think this is entirely correct. As argued above, the right to equality is not directly
relevant in the present case, since Articles 14 and 15(1) make it clear that it is only
enforceable against the State. The “publicness” of the temple is another matter
altogether: I would argue that if the Court is to hold that the Sabarimala Temple is a
“public temple”, then it no longer remains a “denominational” religious institution, and
loses the protection of Article 26(b) without the necessity of going into the morality
clause. In such a situation, the question becomes straightforward: the petitioners have a
right to enter the temple under Article 25(1), and the Devaswom Board has no
corresponding right to deny them entry under Article 26(b). Without the umbrella
protection of 26(b), for the reasons adduced at the beginning of this post, Rule 3 is
either ultra vires, or unconstitutional.
(Interestingly, during the first temple entry satyagraha in 1927, Ambedkar framed the
issue as precisely being one of a right to access public spaces on an equal basis. “The
issue is not entry, but equality“, he famously said).
First published here.
Original author: gautambhatia1988