Supreme Court’s “Sabarimala” Verdict: Eagerly awaited
Not just by Devotees and Legal Luminaries but also by Citizens in general
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”.
Of the Fundamental Rights, the Right to Life and Personal Liberty, enshrined in the Article 21, has been held to be most sacred and pristine among the Fundamental Rights — rightly so, because in absence of this Right, all other Rights are rendered effectively meaningless. This valuable right extends to “all persons”, including citizens and non-citizens. Over the decades since Independence, the Supreme Court has gradually expanded the meaning of life and liberty from one of mere animal existence and physical restraint/ confinement respectively; it now includes the right to travel abroad as well as the Right to Privacy.
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.
In the arguments before the Apex Court, it has been submitted by the women petitioners that Articles 14 and 15 can be enforced against the State as well as the so-called autonomous, statutory religious bodies, which are merely instrumentalities of the State, dedicated to running and maintaining religious places of worship. Also, that “every exclusion does not ipso facto about to discrimination”. Article 25 (2) enables the State to make any law “regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice” (Article 25 (2)(a)) and “providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus” (Article 25(2)(b)). Whereas the first part of the Article allows the State to regulate or restrict the “non-religious” components of any religious practice”, the second part applies only to Hindu (i.e. Hindu, Sikh, Jaina and Buddhist religious institutions or devotees, as per the Explanation II to the Article 25). It also appears that Article 25 (2)(b) has been enacted qua “Hindu religious institutions of a public character” in the context of the obnoxious and age-old practice of “untouchability”. This practice, in any case, has been explicitly dealt with under the separate Article 17 and abolished and forbidden and made an offence punishable under the law.
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.
Not going to be touched in the “Sabarimala” case is the question of ex-communication of an individual from a particular religion/ sect/ denomination, in which the Fundamental Rights of an individual citizen/ devotee are juxtaposed against that of the religious denomination as a body that is supposed to govern autonomously its own religious affairs. This matter is separately under the consideration of the Apex Court and the submissions therein also invoke reference to the abolition of “untouchability” under Article 17.
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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K.B.S. Sidhu. The author is an IAS officer of 1984 batch of Punjab cadre. The views expressed are his own.
He can be reached on kbs.sidhu@gmail.com or @kbssidhu1961 or https://www.facebook.com/kbs.sidhu
