Conflicting rights: equality or religion?

Sabarimala Judgement

Controversy characterises the Supreme Court judgement that the Sabarimala temple be opened to women of all age groups. The judgement evoked widespread protests and the temple remains temporarily closed while a ‘ready to wait’ campaign is underway. The National Ayyappa Devotee Organisation, Chetna Conscience of Women and the Nair Service Society have filed review petitions. Besides, the women devotees of Lord Ayyappa also do not approve of the judgement.

The majority opinion of the bench held that the exclusionary practice of the temple was violative of Article 14, 15 and 17. Justice Chandrachud likened the bar on women based on the physiological aspect of menstruation as a form of untouchability.

Such a restriction was derogatory to women and amounted to discrimination. The court struck down rule 3(b) of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, that barred entry of women into the temple.

Interestingly, Justice Indu Malhotra, the sole woman judge on the bench, recorded her dissent. She held that the practice of barring entry of women of notified age group 10-50 years was protected under the right to freedom of religion and is not in violation of the right to equality. It did not matter whether the said practice is logical or rational. It is a matter of the liberty of faith, belief and worship.

Courts cannot interfere with religious communities that exercise their freedom of religion as long as it is not pernicious or oppressive. Courts should not venture to rationalise matters of religion and faith and courts cannot undertake judicial review of the same, she opined.

It would negate the freedom of religion of the devotees. Public Interest Litigation by anyone other than devotees need not be entertained as it would damage the secular fabric of the country. Any challenge to this is only to be made by an aggrieved person. Justice Indu Malhotra rejected the contention that the exclusion on physiological basis is a form of untouchability. She said it was about the celibate nature of the deity and not about women of a certain age.

Can a secular State interfere in matters of faith, belief and customary religious practices? The Preamble to the Constitution mentions as its goal the liberty of thought, expression, belief, faith and worship.

Article 25 provides for citizens the freedom to practice and propagate religion, but this right is not absolute. It is subject to public order, morality, health and to the other fundamental rights guaranteed under the Constitution. It also highlights that the State can make a law for social welfare and reform and throw open religious institutions of a public character to all classes and sections of Hindus.

Secularisation bid

During the Constituent Assembly debates in 1947-50, there was an apprehension over the compatibility of the right to equality with the right to freedom of religion. The two women members on the sub-committee on fundamental rights, Hansa Mehta and Rajkumari Amrit Kaur, were sceptical about the inclusion of the right to religion as it was generally guided by ritualised practices with no rational basis.

It gave the right to equality but effectively diminished the same through the grant of freedom of religion. After deliberations it was agreed that the State would make the necessary laws for reforms when the need arose. It made freedom of religion subject to other fundamental rights.

The secularisation bid has seen reforms in personal laws, triple talaq, Devdasi systems, animal sacrifice, women priests, etc. Clearly, though, the apprehensions of the Constituent Assembly appear to be revisited in the Sabarimala issue.

Today, the dominant view is that the deity is a living person and has a right to privacy. Women cannot impose themselves on a deity who does not wish that girls and women devotees in the 1050 age group worship him. In the Indian legal system, in many cases the deity has been deemed to be a juristic person but ambiguity surrounds this thinking. For how will the wishes of the deity be known? And who will represent the deity in the courts?

While the head priest has expressed his unhappiness over the decision, the Dewasom Board has shifted positions on the recent judgement. People for Dharma, an NGO, argued for the right to privacy of the deity. Given the public character of the temple, such arguments are invalid, especially due to the difficulty in determining the deity’s wishes.

While Article 14 of the Constitution enjoins the State against discrimination between men and women, Article 25 guarantees the right to profess, practice and propagate their religion. Between the two rights, the right to religion is subject to the right to equality and protection of dignity.

Undoubtedly, the apex court has ruled favourably for women who want to enter the temple, but in doing so negated the belief and faith of a section of people. Now how exactly the review court will decide the matter remains to be seen.

(The writer is Associate Professor, School of Law, Christ Deemed to be University, Bengaluru)