A Hill Shrine, Its Pilgrims And The God

As a constitution bench of the Supreme Court of India sits to decide the fate of pilgrims and religious practices at Sabarimala Temple in Kerala, questions about constitutional conscience and social balance spout out of the wellspring of religious antiquity and legal principle. The Sabarimala case, painted with a liberal brush should not be mistaken for a textbook case of exclusion and equality, for it rests on the capacity of the Indian Constitution to acknowledge the sacred element in the nature of its functioning. Religion and the Constitution have shared a permanent relationship of functional alliance and occasional cross-cutting within the judicial framework. The Sabarimala issue is perhaps a high-voltage case, where the judicial domain is tested for its penetrability into areas of faith and belief.

Multidimensional Equality, Gender Conflict And Harmony

Article 14 of the Constitution, the pillar of a democratic society, contextually expounded and subjectively expanded, should not be confined to scenarios of exclusion alone. Interpretative technique requires historical, contemporary and holistic proprieties, which must be used to raise equality from becoming a contest between anti-thetical variables, placed at a distinct advantage and isolated disadvantage, but rather flow into a harmony of existence.

Equality in the modern sense of the term has a history, beginning with the ancient view of equality as an analogy of the manner in which the Earth supports all living beings equally (Manu-IX, 31) to the acknowledgment by late justice E S Venkataramaiah in “K C Vasanth Kumar’s case (1985)”, about Karna’s call for equal treatment and journey to the writings of De Tocqueville and Rousseau according itself with the European heritage of law and social elements, and its effectual impact on the state and its instrumentalities. In fact, the theory of alienable rights was developed on the footing that no person had a value for exchange, and this was the idea that stood in the way of the state-church conflicts in the West. The scientific view of equality, which is the most appropriate to inculcate the culture of conflict avoidance and dissolution was expressed as addressing the web of life, where only networks exist, without the hierarchies of ‘above’ and ‘below’. (Fritjof Capra, 1996)

The Sabarimala debate should not become a dispute of gender conflict, where the real and essential question is one of constitutional religion, perceptions on equality and the sacred domain in modern law. Gender harmony, which acknowledges the sacred dimension and conforms to Article 14 should be a preferred reading within the parameters of the Constitution, not discrimination-based exclusion and the consequent dismantling of faith-based natural networks of arrangement, which grossly undermines the social and religious underpinnings of the matter.

In its simpler essence, equality was best understood by the late justice K K Mathew (1978) as involving the “margin of sufficiency, identity of response to primary needs”. It is obvious that primary needs and religious/spiritual needs must not be clubbed as one and treated alike, since they pertain to distinct spheres of human activity, the former being characterised by immediacy while the latter depends on subjectivities.

There must be a clear and marked difference between equality and uniformity before the law. Homogenising tendencies and trying to superimpose categories of groups with a view to conform to idealisms of uniformity are certainly not the meaning and content of Article 14. The gender plurality of constitutional religion cannot be homogenised under the pale of judicial verdict. This gender diversity is central to constitutionalism and cannot be bargained with creating uniformity through enforcement of forms of worship. Gender plurality and complementary roles are touched with the anvil of gender cooperation, co-existence and conflict avoidance. Gender equality must recognise and uphold gender identity and diversity of operative fields, which are of practical import in Article 14.

Gender Identity And Human Distinctiveness

In understanding gender equality vis-a-vis fundamental rights and constitutional principles concerning development of classification, it is submitted that a nuanced view of human distinctiveness and consequently, gender distinctiveness (contrasted with gender inequality and division) is relevant. late justice K K Mathew (1983) methodically emphasised the incontrovertible fact of the relativity of human nature when he wrote that this nature is realised in each aspect of creation in different ways.

This view of human relativity is the basis for gender identity and difference, which is not discrimination. It is this view of relativity that has formed the basis for the fundamental rights and not gender competition or exclusivity, as accepted by the apex court in the famous “Kesavananda Bharati case (1973)” that the philosophical foundation of natural law mandates that the “that law is deduced not from any speculative void but from the general condition of mankind in society”.

Sacred Dimensions In The Constitution

It is settled that Article 25, which deals with the valued freedom of religion, protects religion in every aspect and not in parts of convenient extrication. ‘Religion’ and ‘worship’ assume connotations of sacred meaning and there are aspects of religion that pertain to a scope beyond conventional understanding.

It is also remarkable that a religious experience is markedly different from a secularised pattern of religious worship, since its sacred fervour is unique to each shrine and its legends. Any freedom of religion cannot exist without a sacred dimension, which is the nerve centre of the manner and form of worship. It follows that the manner and form of worship is an aspect of freedom of religion, which is constitutionally protected.

This argument has been indirectly alluded to by the Supreme Court in an earlier judgement in the “Ahmedabad St Xavier’s Educational Society Case (1974)”, where the court has, in effect and substance, accepted that it is not possible to extricate the sacred dimension.

Judicial Doman: Overreach

It is also to be seen that in these matters of symbolism, faith and religious ritual, the law cannot be normally applied and requires appreciation of the intrinsic nature of the sacred dimension. The ‘impenetrability of the law into such domains’, evidencing its non-applicability in judicially manageable standards was stated in “West Virginia State Board of Education Vs Barnette (319 US 624)” –

In appreciating and interpreting the sacred dimension, it is argued that the sacred notion extends and enriches the intrinsic worth of life rather than resulting in discrimination.

It is true that this view alone can explain the accommodative and expansive sweep of Indian religious traditions, since it integrates reason into higher levels of consciousness, beyond rational experiences. The social costs involved in jettisoning culturally sensible views of constitutional religion have been another product of socio-legal experiences and its consequences are not of particular taste as it would sandpaper away the civilisational basis of constitutional religion, which accepts change with the rhythm of acknowledging the uniqueness of identity.

(The views expressed in this article are the author’s independent opinion on the subject. No part or portion of this article may be reproduced in any form or medium without the express permission of the author)