Relevance: GS Paper II (Polity & Governance)
Why has this issue cropped up?
On September 28, the Supreme Court delivered a 4:1 verdict throwing open the doors of the Sabarimala temple to women of all ages.
The questions at stake
At stake were several thorny questions:
- How deep must the judiciary’s inquiry go in deciding whether to intervene in matters of religion?
- Should the court disturb ethical choices made by a community of believers?
- How must the integrity behind these practices be judged?
- Are religious exercises susceptible to conventional constitutional standards of justice and equality?
The scope of Article 26
The ban on entry of women was justified chiefly at two levels.
- First, the temple, they argued, enjoyed denominational status under Article 26 of the Constitution, which allowed it to determine for itself the manner in which it managed its religious affairs.
- Second, prohibiting women of menstruating age from entering Sabarimala, they contended, is supported by the temple’s long-honoured custom: since Lord Ayyappan is a “Naishtika Brahmachari”, allowing women aged between 10 and 50 years to enter the temple, it was claimed, would affect the deity’s “celibacy”.
Refutation of above arguments
The Court found no doctrinal or factual support for the temple’s claim for denominational status. The devotees of the Sabarimala temple, it found, were in no way distinct from the larger community of Hindu believers.
The dissent
Justice Malhotra ruled that the Sabarimala temple constitutes a separate religious denomination, and, therefore, the temple’s administrators were at liberty to make customary exceptions in matters of religious practice. This freedom, in her opinion, extended power to the temple to proscribe women from entering its precincts.
Essential practices doctrine
- Ordinarily, in determining whether a purportedly religious command is constitutionally protected, the courts have sought to test whether such a belief is essential to that religion.
- Here, for instance, the Court found that the practice of excluding women aged between 10 and 50 years from the Sabarimala temple is dispensable, in that the “nature” of the Hindu religion would not be “fundamentally altered” by allowing women to enter the temple.
- Although an examination of this kind is strongly backed by precedent, Justice Malhotra was especially critical of the approach. In her belief, the power of judicial review ought not to accord to courts the authority to judge the rationality of a matter of faith. “The issue of what constitutes an essential religious practice,” she wrote, “is for the religious community to decide.”
- Further, she noted that there may well be practices that are so pernicious and oppressive which might well demand the court’s interference. These, in her words, would include a “social evil, like Sati”.
The questions raised
The dissenting opinion begs a question. It leaves us wondering how far the right to freedom of religion can really extend. And to what extent a group’s collective liberty can trump an individual’s equal right to freedom of religion. Would, for example, denial to women of the right to serve as priests, or to be ordained as bishops, be considered oppressive?
The solution
- It has been suggested that the court must look beyond the essential practices doctrine and examine claims by applying a principle of “anti-exclusion”. Or, in other words, “where a religious practice causes the exclusion of individuals in a manner which impairs their dignity or hampers their access to basic goods, the freedom of religion must give way to the over-arching values of a liberal Constitution.”
- The Constitution must be seen as a document that seeks to bring about a transformed society. When a religious practice goes so far as to deny women equal status in society, when notions of purity and pollution are employed to perpetuate discrimination, the Constitution ought to mandate a shattering of the conventional divides between the private and the public.
- The real test is to assess whether an exclusion founded on religious belief, essential or otherwise, encroaches on a person’s basic right to dignity. Or in other words, discrimination couched as plurality cannot be allowed to undermine the Constitution’s basic “quest for equality”.
Constitution
The Constitution exists not only to disenable entrenched structures of discrimination and prejudice, but to empower those who traditionally have been deprived of an equal citizenship.
