The Sabarimala Verdict: Whose Morality, Whose Freedom?
October 30, 2018
Image Courtesy: Live Mint
A significant social and political churning is underway on the question of temple entry at the Sabarimala shrine in Kerala. The verdict of the five-judge constitution bench on 28th September, granting women between the ages of ten and fifty the right to enter the shrine, has set the stage for a direct confrontation between contrary worldviews and social currents. Ranged on one side are defenders of the status quo who see the entry of women of menstrual age into Sabarimala as an assault on their traditions and religion. These champions of orthodoxy include the high priests of the temple, the erstwhile Pandalam royal family, upper caste organisations like the Nair Service Society, and hardline outfits like the Ayyappa Dharma Sena which have the direct backing of the Rashtriya Swayamsevak Sangh. Opposed to these forces are a range of progressive organisations and movements which view the Sabarimala issue as a question of gender justice. They seek to use the Supreme Court judgment to advance the struggle against social prejudice and patriarchal mindsets. In this they have received the active support of the Left-led state government.
That these contrasting viewpoints have great social import is visible in the heated, and sometimes violent, nature of the disputes on the Sabarimala question. The violent agitations by a section of the Sabarimala devotees have been an important subject of public discussion over the last few days. The ideological conflict has implications for the basic character of our polity as well. It involves fundamental questions about the kind of constitutional democracy we aspire to have. The essence of this ideological dispute can be seen in the individual judgments delivered on 28th September. The five-judge bench delivered four separate judgments: four ruling in favour of women’s entry and one ruling against. Of the four, two judgments in particular stand out in so far as they present starkly contrasting constitutional visions. The majority opinion of Justice D Y Chandrachud and the dissenting view of Justice Indu Malhotra are important statements within the ongoing ideological debate.
The main issue which divides the two constitutional visions is the centrality of individual rights within constitutional democracy. Justice Chandrachud’s entire judgment is based on the premise that individual dignity lies at the core of liberal constitutionalism. The Indian constitution, on his view, recognizes this centrality by enumerating justice, liberty, equality and fraternity as overarching political ideals in its preamble. All constitutional provisions including the freedom of religion, therefore, must be interpreted in view of this larger objective. Individual dignity must serve as the principal value guiding the public life of the country.
This emphasis enables Justice Chandrachud to identify a deep connection between constitutional interpretation and tasks of social transformation. Drawing on the commitment of towering Constituent Assembly members like B.R. Ambedkar to objectives of social change, he argues that constitutional governance in India must be centrally concerned with ending caste and gender-based discrimination. Constitutional morality, in other words, partly consists in enabling society to break out of the shackles of oppressive and unequal social institutions.
In line with this understanding of constitutional morality, Justice Chandrachud interprets Article 25 of the Constitution as fundamentally dealing with the individual’s freedom of religion. On the basis of this interpretation, he is able to argue that entering the Sabarimala shrine is a part of the individual woman’s fundamental right “to profess, practice and propagate religion”. Within the history of judicial pronouncements on the right to freedom of religion under Articles 25 and 26, this marks a significant change. The bulk of the litigation under these articles has resulted from religious groups and institutions challenging state intervention in their practices. Freedom of religion under the Indian constitution has acquired, as a consequence, the character of group entitlement vis-à-vis the state. This is despite the fact that Article 25, particularly in its second clause, does provide ample scope for intervention by the state.
Justice Chandrachud breaks from this trend by arguing that freedom of religion under Article 25 also empowers individuals to make claims against groups. Thus, denial of rights to worship to any particular section within a religion or denomination could amount to a violation of Article 25. Prohibiting women between the ages of ten and fifty from entering Sabarimala, therefore, amounts to a violation of their freedom of religion. This interpretation of freedom of religion under Article 25 transforms in one fell swoop a provision which has often been used by religious groups to preserve unjust discriminatory practices into a weapon of reform and transformation. Through a simple interpretive innovation, equality and individual dignity as yardsticks which religious practices can be judged by.
This shift in interpretation is related to another striking argument by Justice Chandrachud. Through a long and complex history of judicial interventions, the Supreme Court has set up a requirement that practices must belong to the essence of a religion in order for them to enjoy protection under Articles 25 and 26. This “essential practices” doctrine obviously raises the question of how the essence of a religion is to be determined, an issue which has received much judicial deliberation. Early on, in cases like Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt (1954), judges adopted a cautious approach leaving it to the followers of a religion to determine what its essential practices were. Over the next few decades, however, the judiciary came to adopt a more rigorous standard. In Durgah Committee, Ajmer v. Syed Hussain Ali (1962), for instance, Justice Gajendragadkar held that the judiciary needed to rigorously study the history and doctrine of a religious group to determine what the latter’s essential practices were.
The “essential practices” doctrine has provided the judiciary an opportunity for religious reform. By holding regressive and discriminatory practices to be inessential to the basic tenets of specific religions, the judiciary has deprived many such practices of constitutional protection. It must be remembered that a number of these cases, like Sri Venkataramana Devaru v. State of Mysore (1958), have been concerned with the entry of Dalits and other oppressed sections into public temples. Justice Chandrachud points out that there have been, nevertheless, two basic problems with the doctrine. First, as means of reform it allows an assessment of religious practice only in terms of religion itself. Thus, as long as a practice is understood to be essential to a religion or denomination, it would pass judicial muster no matter how oppressive or discriminatory. Second, it puts the court in the position of a theological arbiter using theological standards, rather than a custodian of the constitution using constitutional standards of assessment. In effect, it puts religion outside the pale of assessment in terms of its compatibility with the constitutional values of individual dignity and equality. Justice Chandrachud proposes, instead, an “anti-exclusion” principle, wherein the judiciary does not judge a religious practice in terms of essentiality, but rather only enquires into its relationship with the range of freedoms that underpin the constitutional framework. A religious practice, thus, would be bereft of constitutional protection if it simply fell afoul of core constitutional values. Again, it must be noted that this shift from “essential practices” to “anti-exclusion” is premised on the centrality of individual dignity, equality and social transformation to the constitutional project.
As against this pervasive stress on individual dignity, Justice Indu Malhotra keeps group entitlement at the centre of constitutional morality. Laying stress on “secularism” rather than justice and equality, she argues for an overall attitude of judicial non-intervention in religious matters. Constitutional morality, in her account, is not geared to a transformative project. Articles 25 and 26, therefore, continue to be seen as “secular” bulwarks affording protection to religious groups and their practice. The individual freedom of religion under Article 25 is given short shrift.
This constitutional vision is reflected in Justice Malhotra’s treatment of the “essential practices” doctrine. While for Justices Chandrachud, Mishra and Khanwilkar, the exclusion of women from entering Sabarimala fails the test of essential practice, and Justice Nariman remains ambivalent on the question, Justice Malhotra categorically sees the practice as an essential one. One of the chief reasons behind Justice Malhotra’s opinion on this point is that in interpreting the “essential practices” doctrine she goes back to the judgment in the Shirur Mutt case which granted almost “complete autonomy” to the members of a religious community in defining its practices, thereby ignoring decades of jurisprudential development on this question. Through this she denies in effect any independent role for the judiciary in ascertaining the essential doctrine of a religious group. This amounts to an acceptance, in other words, of all the problematic features of the “essential practices” doctrine while rejecting whatever little scope for reform it afforded.
Why would Justice Malhotra ignore an entire series of landmark judgments in understanding the “essential practices” doctrine? Why would she take the word of representatives of a religious community in defining what the latter’s practices are? Given the overall character of her judgment, one can plausibly seek answers in the centrality of group entitlement, as against individual dignity, in her conception of constitutional morality and secularism. It must be remembered that self-proclaimed representatives of a religious community or denomination, in litigations or otherwise, often represent the most powerful and influential sections of that community. Identification of essential religious practice can square very neatly then with the blanket preservation of tradition no matter how inegalitarian elements of the latter may be. The idea underlying Justice Malhotra’s position seems to be that uncritical reverence is the only permissible attitude that the constitutional framework can have towards religious groups. Reform and change are none of the constitution’s business.
It is interesting to note that proponents of women’s entry into Sabarimala, from Left activists to leaders of women’s groups, have explicitly characterized the entry ban and its supporters as “communal”. In doing so, they have invoked a notion of secularism and constitutional morality that unambiguously gives a central place to individual dignity and equality. Rejection of age-old prejudice and removal of discrimination seem to be a vital part of this secular ideal. Caste and patriarchy are openly identified as the antithesis of constitutional values.
In a sense, Amit Shah’s recent statement that “courts should only pass judgments that can be implemented” captures the core of the ideological conflict. While he was referring to courts and their powers, he might as well have talked about the constitution.
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