The Sabarimala temple in Kerala has been at the center of a heated legal debate in recent years over its practice of barring women of menstruating age from entering the inner sanctum. This custom was challenged before the Supreme Court as being discriminatory and violative of women’s fundamental rights. In a landmark 4:1 verdict in Indian Young Lawyers Association v. State of Kerala in 2018[1], the Supreme Court held this practice unconstitutional. However, this closely contested judgment reveals the difficulties courts face in balancing competing claims of gender equality and religious freedom guaranteed under the Constitution.
Background on the Sabarimala Temple
The Sabarimala temple is one of the largest Hindu pilgrimage centers in the world, attracting over 50 million devotees annually[2]. The presiding deity is Lord Ayyappa, who is believed to have taken a vow of celibacy. The customs of the temple prohibit women between the ages of 10 to 50 years from undertaking the pilgrimage to Sabarimala on grounds that the presence of women of menstruating age would disrupt the celibate nature of the deity[3].
In 1991, the Kerala High Court upheld this custom as an essential religious practice of the temple. The Indian Young Lawyers Association filed a public interest litigation in the Supreme Court in 2006 challenging Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 which authorised the prohibition[4]. The petition argued that banning entry of women based on a biological factor exclusive to the female gender is unconstitutional.
Constitutional Provisions Involved
The case involved interpretation of Articles 14, 15, 17, 25 and 26 of the Constitution. Article 14 guarantees equality before law and equal protection of laws. Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth. Article 25(1) grants freedom of conscience and right to profess, practice and propagate religion subject to public order, morality and health. Article 26 grants religious denominations the right to manage their own affairs in matters of religion. Article 17 abolishes untouchability and its practice in any form.
The petitioners argued that excluding women from the temple is discriminatory under Article 15(1) and violates the right to practice religion under Article 25. The devotees contended that the practice is essential to the Sabarimala temple’s religious beliefs and protected under Article 26. The Court had to balance these competing claims and examine whether the practice qualifies as an ‘essential religious practice’.
The Essential Religious Practice Test
The ‘essential religious practice test’ emerged from the Supreme Court’s decision in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt[5]. Here, the Court held that the term ‘religion’ under Article 26 will cover practices which are regarded by the community as integral parts of religion. This test requires the Court to determine whether a practice is essential to follow that religion.
The test has been inconsistently applied over the years. In some cases, the Court has refused to adjudicate on theological aspects and deferred to the community’s views[6]. In others, it has held the test to be violative of religious freedom by allowing judges to become arbiters of religious interpretation[7].
In Sabarimala, the majority examined the tenets of the worshippers and texts governing the temple and concluded that the exclusion of women was not an essential practice. Justice Indu Malhotra’s dissent found this reasoning flawed and warned against a rational review of religious beliefs by the Court. She held that determining what constitutes essential religious practice should be left to the worshippers.
Constitutional Morality vs Religious Beliefs
The majority verdict invoked the doctrine of ‘constitutional morality’ to hold that practices derogatory to women conflict with the values enshrined in the Constitution[8]. The dissent cautioned that constitutional morality cannot override the freedom to practice religious beliefs under Article 25.
The Court has often grappled with navigating the line between protecting religious freedom and ending discrimination justified as religious custom. In cases like triple talaq[9] and temple entry of Dalits[10], it has denounced practices that transgress constitutional values of dignity and equality. Critics argue this amounts to the Court imposing progressive values without regard for religious pluralism[11].
The dissent in Sabarimala echoes this criticism of the essential practices test being used to invalidate customs at odds with constitutional morality. However, proponents counter that the Constitution envisages a transformative role for the Court beyond merely protecting tradition[12]. Preventing exclusion of women based on medieval patriarchal notions is part of this transformative mission.
Notions of Untouchability and Exclusion
The judgment also examined whether the prohibition amounts to a form of ‘untouchability’ under Article 17. The majority relies on the phrase ‘in any form’ in Article 17 to hold that notions of impurity and pollution attributed to menstruating women establish a form of untouchability[13].
Justice Chandrachud’s concurring opinion reasons that restricting entry of women based on physiological features associates them with inferiority and amounts to exclusion from worship in violation of Article 17[14]. Critics argue that equating the practice with untouchability trivializes the stigma historically faced by Dalits[15]. However, proponents justify a broad reading of Article 17 to cover newer forms of exclusion and subordination[16].
The dissent holds that Article 17 must be given a narrow meaning limited to caste-based untouchability. Justice Malhotra also cautions against an over-expansive interpretation that could jeopardize religious freedom and plural traditions[17]. This debate over the scope of ‘untouchability’ demonstrates the difficulties in delineating boundaries between social reform and religious autonomy.
Critique of the Court’s Reasoning
The Sabarimala judgment has been critiqued for its problematic reasoning on essential practices, untouchability and exclusion. First, the essential practices test is an unsatisfactory doctrinal tool as it leads judges to interpret religious texts and customs beyond their expertise[18]. It impinges on religious freedom by allowing the Court to determine the content of a religion.
Second, equating the prohibition on menstruating women with untouchability stretches the boundaries of Article 17. The practice does not originate from notions of purity and pollution associated with caste hierarchy[19]. Applying Article 17 to any form of discrimination dilutes its purpose of abolishing caste-based exclusion.
Third, the judgment inadequately balances individual dignity with group rights[20]. Constitutional provisions protecting religious freedom signify the importance accorded to community traditions. Invalidating customs based on individual dignity alone without limiting principles threatens religious pluralism.
The Way Forward
The Sabarimala controversy reveals gaps in constitutional jurisprudence on navigating tensions between gender justice and religious freedom. Meaningful social change requires going beyond a court-centric approach. Sustainable solutions emerge through campaigns changing social attitudes and reform from within religious communities[21].
Legislative intervention to frame guiding principles may be preferable to case-by-case judicial scrutiny of religious practices. The Court must exercise restraint and recognize limits in determining theological questions on essential practices. Sensitivity to religious diversity is vital while addressing discriminatory customs. Managing conflicting rights claims under the Constitution requires an incremental balancing carefully rooted in constitutional values of dignity, equality and religious freedom.
References
[1] Indian Young Lawyers Association v State of Kerala, (2018) 1 SCC 1.
[2] Ritu Mishra and Sonia Sharma, “Sabarimala temple: A guide to the historic temple and the issue surrounding it” (The Indian Express, 5 November 2019) https://indianexpress.com/article/research/sabarimala-temple-kerala-lord-ayyappa-women-entry-supreme-court-verdict-5414960/ accessed 30 January 2023.
[3] Indian Young Lawyers Association v State of Kerala (n 1).
[4] S. Srinivasan v. State of Kerala, AIR 1972 Ker 42.
[5] Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282.
[6] Sardar Syedna Taher Saifuddin Saheb v State of Bombay, AIR 1962 SC 853.
[7] Ratilal Panachand Gandhi v State of Bombay, AIR 1954 SC 388.
[8] Indian Young Lawyers Association v State of Kerala (n 1).
[9] Shayara Bano v Union of India, (2017) 9 SCC 1.
[10] Sri Venkataramana Devaru v State of Mysore, AIR 1958 SC 255.
[11] Ronojoy Sen, Articles of faith: Religion, secularism, and the Indian Supreme Court (Oxford University Press 2010).
[12] Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts (HarperCollins 2019).
[13] Indian Young Lawyers Association v State of Kerala (n 1).
[14] ibid.
[15] Pratap Bhanu Mehta, ‘Sabarimala, women’s rights and the idea of ritual purity’ The Indian Express (New Delhi, 30 October 2018) https://indianexpress.com/article/opinion/columns/sabarimala-temple-kerala-devaswom-board-supreme-court-women-entry-banned-5415495/ accessed 30 January 2023.
[16] Gautam Bhatia, “The Sabarimala Judgment – III: Justice Chandrachud and Radical Equality” (Indian Constitutional Law and Philosophy, 30 October 2018) https://indconlawphil.wordpress.com/2018/10/30/the-sabarimala-judgment-iii-justice-chandrachud-and-radical-equality/ accessed 30 January 2023.
[17] Indian Young Lawyers Association v State of Kerala (n 1) (Malhotra J dissenting).
[18] Ronojoy Sen (n 11).
[19] Pratap Bhanu Mehta (n 15).
[20] Gautam Bhatia, “The Sabarimala Judgment – II: Justice Malhotra and Group Autonomy” (Indian Constitutional Law and Philosophy, 29 October 2018) https://indconlawphil.wordpress.com/2018/10/29/the-sabarimala-judgment-ii-justice-malhotra-and-group-autonomy/ accessed 30 January 2023.
[21] Alok Prasanna Kumar, “Beyond Courtrooms: Case for a ‘Common Sense’ Approach to Resolving Sabarimala Row” (The Wire, 23 November 2018) https://thewire.in/law/beyond-courtrooms-case-for-a-common-sense-approach-to-resolving-sabarimala-row accessed 30 January 2023.
