James A.R. Nafziger, in his article titled ‘The functions of religions in the international legal system’, defines religion as a practice of ultimate concern about our nature and obligations as human beings, inspired by experience and typically expressed by members of a group or community sharing myths and doctrines whose authority transcends both individual conscience and the state. As such, it is a realm in which the role of reasoning is reduced substantially which necessitates intervention by courts and the State.
In a pluralistic, multi-religious society like India, with a wide range of customary practices followed by people within the same religion, the question as to when courts should intervene and rule on religious practices becomes more important than the question as to what extent their interference should be. The recent verdict of the Supreme Court of India on entry of women in Sabarimala temple offers an excellent case-study on this aspect.
The current litigation arises from a Public Interest Litigation (“PIL”) filed by Indian Young Lawyers Association against State of Kerala seeking directions against the Government of Kerala to ensure entry of female devotees between the age group of 10 to 50 years to the Ayyappa Temple at Sabarimala. When this case came up before a three-judge bench of the Supreme Court on October 13, 2017, the following questions, inter alia, were referred to a larger bench of five judges:
Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to “discrimination” and thereby violates the very core of Articles 14, 15 and 17 and not protected by ‘morality’ as used in Articles 25 and 26 of the Constitution?
Whether the practice of excluding such women constitutes an “essential religious practice” under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?
What constitutes a religious denomination?
On September 28, 2018, the Supreme Court, while answering the above referral questions, held that the practice of exclusion of women of the age group of 10 to 50 years being followed at the Sabarimala Temple cannot be regarded as an essential religious practice. Further, it was also held that the devotees of Lord Ayyappa do not constitute a separate religious denomination.
Chief Justice Misra, who wrote an opinion for himself and Khanwilkar J, states that the devotees of Lord Ayyappa are “exclusively Hindus” and do not constitute a separate religious denomination. There is also an express finding that the devotees of Lord Ayyappa do not have common religious tenets peculiar to themselves, which they regard as conducive to their spiritual well-being, other than those which are common to the Hindu religion. This conclusion is flawed due to the following facts:
Devotees of Lord Ayyappa are not exclusively Hindus. Believers of all religions are allowed in Sabarimala Temple; and the devotees of Lord Ayyappa follow a 41-day “vratham”, and call themselves as Ayyappans. The practice of vratham includes abstinence and seclusion from members of the opposite sex, including one’s own spouse, abstinence from meat and intoxicants, walking bare-foot, preparing one’s own food etc., for a period of 41 days. These beliefs and practices are a result of the belief that Lord Ayyappa at Sabarimala Temple is in the form of a Naishtik Brahmachari.
Therefore, these practices are unique to the devotees who undertake a pilgrimage to Sabarimala, and this is sufficient to establish the special nature of the shrine at Sabarimala. Despite these facts, the Supreme Court held that Ayyappans do not form a religious denomination. This is how:
To answer the question on religious denomination, the Supreme Court largely relied on a rigid formula provided in its own previous decision in The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Thirtha Swaminar of Sri Shirur Mutt  SCR 1005. The Supreme Court, in Shirur Mutt, held that the following three conditions are essential for a religious denomination:
first, it must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, that is, common faith;
second, common organisation; and
third, designation by a distinctive name. Justice Dipak Misra (for himself and Khanwilkar J), surprisingly, in para 96 of his opinion, holds that there is nothing on record to show that the devotees of Lord Ayyappa have any common religious tenets peculiar to themselves, which they regard as conducive to their spiritual well-being, other than those which are common to the Hindu religion.
He goes on to hold that there is no identified group called the ‘Ayyappans’. The reasons for these conclusions are absent in his opinion.
Justice Nariman, in his concurring opinion, takes an interesting route. In para 26 of his opinion, he records as follows:
“…From this, it is also clear that Hindus of all kinds, Muslims, Christians etc., all visit the temple as worshippers, without, in any manner, ceasing to be Hindus, Christians or Muslims. They can therefore be regarded, as has been held in Sri Adi Visheshwara (supra), as Hindus who worship the idol of Lord Ayyappa as part of the Hindu religious form of worship but not as denominational worshippers.”(emphasis mine)
The Sri Adi Visheshwara decision which Justice Nariman refers to, held that the Hindu believers of Shaiva form of worship are part of the Hindu form of worship and are not denominational worshippers. It did not deal with a case where believers were from different religions. Thus, the question which Justice Nariman ignored in the Sabarimala case is whether believers from different religions with a common identifiable faith form a religious denomination?
However, the above mentioned question was touched upon by Justice Chandrachud in his concurring opinion. In para 69 of his opinion, Chandrachud J holds as follows:
“69. Adherence to a ‘common faith’ would entail that a common set of beliefs have been followed since the conception of the particular sect or denomination. A distinctive feature of the pilgrimage is that pilgrims of all religions participate in the pilgrimage on an equal footing. Muslims and Christians undertake the pilgrimage. A member of any religion can be a part of the collective of individuals who worship Lord Ayyappa. Religion is not the basis of the collective of individuals who worship the deity.Bereft of a religious identity, the collective cannot claim to be regarded as a ‘religious denomination’.”(emphasis mine)
Does this mean that believers from different religions with a common identifiable faith do not have constitutional protection? Indeed, the answer to this question depends on the interpretation of Article 26 of the Constitution which deals with freedom to manage religious affairs. Interpretation of the phrase “religious denomination” assumes significance in the context of Article 26 because it gives them special rights which includes right to manage their own affairs in matters of religion. It is equally pertinent to note that neither the Constitution nor the General Clauses Act, 1897 defines the word “religion” or the phrase “religious denomination”. The role of a judge becomes critical here-an interpretative faux pas would result in denying a group their right to manage religious affairs under Article 26.
“Public interest” in religious affairs
The current PIL challenging the exclusionary practices at the Sabarimala Temple was filed by an association of lawyers who are involved in social developmental activities especially activities related to upliftment of women and creating awareness among them as to their legal rights. As noted already, the right to equality claimed by the petitioners under Article 14 conflicts with the rights of the worshippers of the Sabarimala Temple which is also a fundamental right guaranteed by Articles 25, and 26 of the Constitution. Justice Indu Malhotra, in her dissenting opinion, rightly holds that the right to move the Supreme Court under Article 32 for violation of fundamental rights, must be based on a pleading that the petitioners’ personal rights to worship in this Temple have been violated. The majority opinion dismissed this point by terming it as a mere “technicality”. This is not a mere technicality and the Supreme Court should not decide upon religious questions at the behest of persons who do not subscribe to that particular faith, and who are not personally affected by the rights violation in question.
Justice Malhotra is right when she stated that permitting PILs in religious matters would open the floodgates to interlopers to question religious beliefs and practises, even if the petitioner is not a believer of a particular religion, or a worshipper of a particular shrine. More importantly, the perils are even graver for religious minorities if such petitions are permitted. When the Court makes no apparent effort to engage with the individuals whose rights are actually in question, would it not amount to misappropriation of the voice of such individuals? In the context of Sabarimala, it would not be wise to dismiss the protests staged by women in Kerala as mere manifestations of internalised patriarchy. It would rather be beneficial to hear out their grievances, if any, to begin with.
Justice Misra (for himself and Khanwilkar J) records at para 122 that –
“In the absence of any scriptral or textual evidence, we cannot accord to the exclusionary practice followed at the Sabarimala temple the status of an essential practice of Hindu religion”.
At the same time, Justice Malhotra, in her dissenting opinion, cites the ‘Memoir of the Survey of the Travancore and Cochin States’ written by Lieutenants Ward and Conner (published in two parts in 1893 and 1901), and a comprehensive thesis by Radhika Sekar titled ‘The Process of Pilgrimage: The Ayyappa Cultus and Sabarimalai Yatra‘, to hold that the respondents have made out a plausible case that the practise of restricting entry of women between the age group of 10 to 50 years is an essential religious practise of the devotees of Lord Ayyappa at the Sabarimala Temple being followed since time immemorial. These authorities were also not cited by Chandrachud and Nariman JJ in their respective opinions. It would suffice to say that all five judges had access to similar sets of documents.
Justice Chandrachud, in para 46 of his opinion, analyses the Triple Talaq judgment in the following manner:
“While the majority based its conclusion on an examination of the substantive doctrines of Islam and the theological sanctity of triple talaq, the minority relied on the widespread practice of triple talaq to determine its essentiality. The majority and minority concurred, however, that the belief of a religious denomination claiming a particular practice to be essential must be taken into consideration in the determination of the essentiality of that practice.”(emphasis mine)
If the highlighted portion above is the law declared by the Supreme Court, then, the Court, in the instant case, should have dealt with the special characteristics of Sabarimala Temple. This includes, primarily, the belief that Lord Ayyappa at Sabarimala Temple is in the form of a Naishtik Brahmachari.
The Court proceeds with the reasoning that the exclusionary practise is based on notions of impurity attached to menstruation. However, there is no substantial discussion on whether the exclusionary practise is a direct result of the special nature of the deity i.e. a Naishtik Brahmachari. The presupposition of exclusion on the grounds of impurity demonises the practice of vratham, which the pilgrims undertake for 41 days before visiting the shrine at Sabarimala.
Justice Chandrachud’s conclusion is that the effect of the practice is to impose the burden of a man’s celibacy on a woman and construct her as a cause for deviation from celibacy. Such a conclusion holds water in a society untouched by religious faith. The protests staged by women in Kerala cannot be seen in isolation-it wouldn’t be wrong to state that these women think that the Court’s approach has been paternalistic.
Leaving the politics aside, the believers have all the right to question the verdict of the Supreme Court which has imposed an ideology which is alien to their faith. The factual errors and other legal/logical reasoning provided above clearly show that the approach of the Supreme Court lacked discipline. When alis pertains to religious practises, the judges shouldn’t impose their ideology on the believers. As eminent jurist H.M. Seervai observed, what is “superstition” to one section of the public may be a matter of fundamental religious belief to another. It is through this prism that the judges should adjudicate matters related to religious practises. The indiscipline showed by the Court, as explained above, should not be the new standard while deciding cases on religious practises. As Justice Malhotra pointed out, it is not for the courts to determine which of the practises of a faith are to be struck down, except if they are pernicious, oppressive, or a social evil.
Rahul Unnikrishnan is an advocate practising in Madras High Court, India.