Supreme Court’s “Sabarimala” Verdict: Eagerly awaited

The Supreme Court of India is hearing the “Sabarimala” Temple case on day-to-day basis

History of Dispute: Entry of Women devotees barred

Sabarimala” is one of the four historical temples associated with Lord Ayyappa and is situated in Kerala. As an age-old practice, women between the ages of 10 to 50 are not allowed to enter the temple as the Presiding Deity is believed to be in a state of “Brahmachara”. No such restriction has been imposed in respect of the other three temples, where the Deity is regarded as being in different stages of life. This age-old restriction qua women was upheld by the Kerala High Court in the year 1991 and now the matter is before the Constitutional Bench of the Supreme Court of India at the instance of the women devotees and is being argued on a day-to-day basis. Our take is that the imminent verdict of the Apex Court in this case should be a matter of interest not merely for the litigating parties and the legal luminaries but also the ordinary citizens. This is so because the Supreme Court shall decide not merely whether the women devotees are to be allowed entry to the shrine but, in doing so, adjudicate as to whether the Fundamental Rights of the individual citizen are to be given primacy over the regulatory powers of the State as well as over the Fundamental Rights of the collective body of a religious denomination.

Fundamental Rights

Part III of the Indian Constitution deals with Fundamental Rights of the citizens as well as of “other persons”. This part confers various Fundamental Rights on its citizens and, at the same time, limits or circumscribes the powers of the State to restrict or regulate these rights. The Fundamental Rights are placed at a pedestal superior not only to the other laws, whether Central or State enactments, but also vis-à-vis the other provisions of the Constitution. As far back as 1973, the Supreme Court had held by a wafer-thin (7–6) verdict in the Kesavananda Bharti’s case that the constituent power of the Parliament includes the power to amend the Fundamental Rights but in doing so, it cannot alter the “basic features” of the Constitution. Also, limited judicial review by the superior judiciary was one of the “basic features”.

The Sabarimala Temple in Kerala, dedicated to Lord Ayyappa

Fundamental Rights of Women Devotees versus those of the Deity

Nearly the entire gamut of litigation surrounding the Fundamental Rights has originated with the private citizens submitting/ arguing that the State has initiated measures, legislative or otherwise, to curtail, infringe upon or otherwise invalidate their Fundamental Rights. However, there are very few cases, where the Fundamental Rights of one class of citizens has been pitted against those of a religious denomination or a deity. In the “Sabarimala” case, the Fundamental Rights of the latter to “establish and maintain institutions for religious and charitable purposes” and “to manage its own affairs in matters of religion” are asserted under Articles 25 and 26, whereas those of the women devotees are argued under Articles 14 and 15, as well as under Article 25(1) (a). Interestingly, the “Deity” is also regarded as an artificial juridical person that is subject to taxation etc. and would thus have its own Fundamental Rights under the foregoing Articles.

Whose Fundamental Rights have primacy?

The Apex Court shall be called upon to adjudicate whether devotee Hindu women can be construed be a “class and section” of the Hindus, or the same is to be seen only through the prism of caste and class. It may also be pointed out that the enabling law-making power granted to the State under Article 25(2)(b) is to include, rather than to exclude. The other question that has been vehemently raised by the traditionalists is as to how a woman devotee, once she is claims to be following the “maryada”/ customary practice of a deity/ the shrine, can demand something which is flagrantly at loggerheads with such” maryada”. The doctrine of “essentiality” as part of the religious practice, as laid down by the Supreme Court in the Shirur Mutt Case (1958 AIR 255) may also be re-visited. In latter case, the Apex Court had tried to segregate the core religious functions from the auxiliary/ subsidiary ones, while interpreting Articles 25 and 26.

Expected outcome and its impact

Our take is that the Constitutional jurisprudence has evolved in a direction where the Fundamental Rights of an individual are being given a more liberal and expanded interpretation as against the reasonable restrictions that the State can impose within the constitutional framework as well as qua the Fundamental Rights of the collective religious denomination/ sect/ group. Thus women devotees may well be permitted by the Apex Court to enter this shrine and offer prayers, breaking an age-old tradition and, according to some, changing the very nature of the shrine and the worship thereat. This shall also give a great boost to the Fundamental Rights of the individual citizens, especially women. Let’s wait and see.

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KBS Sidhu, ex-IAS

KBS Sidhu, ex-IAS

Dad, Leo, Mentor, ex-IAS, 1984 batch, superannuated as Spl. Chief Secretary, Punjab. Electronics Engineer, University of Manchester, UK, and Harvard Alumnus.