Challenge to social reform

THE Indian Constitution seeks to merge freedom of religion with a mandate to the state to intervene in religious affairs on certain specified grounds.

Thus, Clause 1 of Article 25 says: “Subject to public order, morality and health and to other provisions of this Part [that is, Part III dealing with Fundamental Rights] all persons [that is, including non-citizens] are equally entitled to freedom of conscience and the right to freely profess, practise and propagate religion.” Clause 2 of the same Article says:

“Nothing in this article shall affect the operation of any existing law or prevent the State from making any law (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) 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.”

Constitutional backing

As the Supreme Court’s three-judge bench of Justices Dipak Misra, V. Gopal Gowda and Kurian Joseph continues to hear a challenge to the constitutionality of restrictions on women entering the Sabarimala temple in Kerala, it has the onerous responsibility of reconciling these provisions with justifications for the restrictions, which also claim constitutional backing.

The petitioner before the Supreme Court, the Indian Young Lawyers Association (IYLA), is an association of young lawyers practising in the Supreme Court and different High Courts. It filed the petition in 2006 under Article 32 of the Constitution, challenging the constitutional validity of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which bars women from entering the temple premises at such time when by custom or usage they were not allowed to enter a place of worship. Ironically, the 1965 Act under which the Rules were framed was passed by the Kerala Legislative Assembly with a view to permit entry of all sections of Hindu society, including those belonging to the Scheduled Castes and Scheduled Tribes.

The IYLA filed its petition even though the Kerala High Court had, on April 5, 1991, in S. Mahendran vs The Secretary, Travancore Devaswom Board, Thiruvananthapuram and Others , upheld the ban on the entry of women to the Sabarimala temple as an integral part of the Hindu religion. This judgment holds the field as the State government did not appeal against it in the Supreme Court.

High Court upholds ban

The High Court had held that the right to freedom of religion guaranteed under Article 25 was subject to the freedom of every religious denomination or any section thereof to manage their religious affairs guaranteed under Article 26 (b) of the Constitution subject to public order, morality, and health.

The High Court then held that a religion could not only lay down a code of ethical rules but also prescribe rituals, observances, ceremonies and modes of worship. These observances and rituals, the court held, were regarded as integral parts of that religion. On the reason why women were not permitted to worship at the Sabarimala temple, the Devaswom Board told the High Court that women in the age group of 10 to 50 would not be in a position, for physiological reasons, to observe penance for 41 days, as required by tradition, before starting the trek to the temple.

The second reason, stated by the tantri of the temple to the High Court, was that the deity was in the form of a Naisthik Brahmachari. The phrase “Naisthik Brahmachari” is used to describe a man who is not inclined to marry and wants to remain a perpetual student and pursue his studies, living the life of a bachelor all his days. More important, a Brahmachari, the High Court was told, had to control his senses. “He has to observe certain rules of conduct which include refraining from indulging in gambling with dice, idle gossip, scandal, falsehood, embracing, and casting lustful eyes on females, and doing injury to others”. ( Manusmriti Chapter II, Sloka 179, was cited to substantiate this proposition.)

In Paragraph 41 of its judgment, the High Court held thus: “Since the deity is in the form of a Naisthik Brahmachari, it is therefore believed that young women should not offer worship in the temple so that even the slightest deviation from celibacy and austerity observed by the deity is not caused by the presence of such women.” The High Court concluded that the restriction imposed on women aged above 10 and below 50 was in accordance with the practice prevalent from time immemorial. However, while holding that such a restriction was not violative of Articles 15, 25 and 26 of the Constitution, or the Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, the High Court reasoned that the women of a particular age group did not constitute a class, and so the grievance of discrimination against them as a class was not sustainable.

But the High Court ignored the fact that in terms of the board’s own reasoning, girls/women in the 10 to 50 age group shared the characteristic of menstruation and, therefore, as persons with a similar characteristic, did constitute a class. In its petition before the Supreme Court, the IYLA submitted that the Sabarimala temple was partially funded by public money as the Kerala government gave the temple board Rs.8 lakh every year in grants. Therefore, it argued, the temple was accountable to comply with the basic constitutional standards of equality.

The IYLA counter

The IYLA relied on the decision of the Supreme Court’s seven-judge bench in Commissioner, Hindu Religious Endowments, Madras, vs Shri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) to submit that what was protected under Articles 25 and 26 was the essential part of the religion, which was to be ascertained from its basic tenets. Therefore, discrimination in matters of entry into temples was neither a ritual nor a ceremony associated with the Hindu religion. On the contrary, in the Hindu religion women were placed on a higher pedestal than men. Therefore, discrimination against women was totally anti-Hindu, it argued. The ILYA thus contended that the Kerala High Court’s judgment, insofar as it justified this discrimination, went against the Supreme Court’s judgment in Shirur Mutt .

Another judgment that the IYLA has relied on is the Constitution Bench’s judgment in Sri Venkatramana Devaru vs State of Mysore (1958). In this case, the court held that the right of a denomination to wholly exclude members of the public from worshipping in the temple under Article 26 (b) must yield to the overriding right declared by Article 25 (2) (b) in favour of the public to enter a temple for worship. The IYLA also submitted that the right under Article 26 was limited not only to religious denominations but also to any of its sections, including the class of women, and that in case of conflict between the right of a religious denomination and that of an individual, it was the individual’s right that was to be given preference.

The IYLA pointed out that there was no prohibition on women entering the temple in the olden days. Many female worshippers within the age group of 10 to 50 had gone to the temple for the first rice-feeding ceremony of their children, the petition said. It submitted that a statutory board such as the Travancore Devaswom Board could not violate the constitutional provisions, namely, Articles 14, 15 and 25, and was duty-bound to give effect to Article 51A (e) of the Constitution, which lays down a fundamental constitutional duty to renounce practices derogatory to the dignity of women.

Ups and downs

The case in the Supreme Court, over the past 10 years, has gone through ups and downs. In 2006, a three-judge bench ordered issue of notices to the parties. Yet, the case was listed before a two-judge bench in 2007 and 2008, until it was directed to be listed again before a three-judge bench. This bench came to be constituted only in January this year.

In 2007, the then Left Democratic Front (LDF) government of Kerala filed an affidavit in the Supreme Court supporting the entry of women into the temple. The LDF government favoured the appointment of a commission of scholars to facilitate the change, stating: “It is not fair to deny a section of women from entering the Sabarimala temple and make worship.”

However, after the three-judge bench began hearing the matter this year, the Congress-led United Democratic Front (UDF) government withdrew the 2007 affidavit and filed a fresh one stating that the restriction on the entry of women was a matter of religion and that the decision of the priests was final in the matter. It further submitted that the restriction was consistent with the idol concept of the temple and, therefore, an integral part of the right of practice of religion of a devotee. The State government contended that it had a duty to protect the right of devotees to practise religion, and described the 2007 affidavit as erroneous.

The revival of the pending case in the Supreme Court led to some fanatics issuing threats to the president of the IYLA, Naushad Ahmed Khan, who approached the Supreme Court seeking to withdraw the petition and claimed that he was not personally involved in the filing of the petition. Refusing permission to withdraw the petition, the court asked the Delhi Police to ensure security to Naushad Ahmed Khan and probe the complaints of intimidation.

The bench appointed the eminent advocate Raju Ramachandran as the amicus curiae to assist the court. On April 18, Ramachandran submitted that while he would not question the beliefs of devotees, they were subject to the morality of the Constitution ingrained in Article 25. A practice detrimental to the dignity of a gender cannot be countenanced, he told the court, and added that the argument that only women of a particular age group could worship at a public temple was facile.

Indira Jaising, senior counsel for the intervener “Happy To Bleed”, also insisted that the expression “morality” mentioned in Articles 25 and 26 should be construed as “constitutional morality”, which would include within its ambit the concept of gender equality, which would prevail over any perceived custom or practice followed by a denomination.

Justice Dipak Misra, during the course of the hearing, observed repeatedly that the bench would be concerned only with the constitutional parameters and not with the nature of the deity or the value of a custom. The observations by the bench so far indicates a pronounced tilt in favour of gender equality in the exercise of the right to worship. It appears that the court will prefer to be on the right side of history and interpret the constitutional provisions dealing with the practice of religion with the objective of promoting social reform.