Sabarimala: Here’s An Argument Supreme Court Didn’t Consider Since It Wasn’t Made

by Anand Prasad - Feb 7, 2020 02:58 PM +05:30 IST
Sabarimala: Here’s An Argument Supreme Court Didn’t Consider Since It Wasn’t MadeWomen take part in a protest against the SC’s verdict. 
  • The Supreme Court has had no occasion to consider some arguments since none of the litigants made these points in the earlier court hearings.

    Here are some of the missed arguments.

As the Supreme Court of India begins to reconsider its 2018 Sabarimala temple ruling, two starkly divergent images from the months that followed the ruling stand out.

The first was of people celebrating the court’s ruling in television studios and in the news media. The other was of street protests in Kerala, which had agitated common folk, both men and women, protesting any move to allow women in the prohibited age category from entering the shrine.

The problem with the latter set of images is that Kerala is one of the more progressive Indian states, in both a social and an educational sense, with a population that is politically Left leaning. As such, one would have expected these folks to be supportive of all socially progressive state action.

However, to the contrary, the state witnessed massive street protests. So, what were we missing?

As a quick recap, the question was whether a religious practice that prohibited women of menstruating age from entering the Sabarimala shrine, and incorporated into local Kerala state law through a couple of notifications and statute, was unconstitutional.

In the public space, we think of the issue as one pertaining to unfair discrimination against women.

However, in the 2018 ruling, the Supreme Court approached the issue principally in terms of the right to practise religion under Article 25 of the Constitution of India.

In constitutional terms, such a debate is different from the one centred around a woman’s right to be treated equally and live her life with liberty and dignity (articles 14 and 21 of the Constitution).

For the sake of completeness, however, let’s analyse the prohibition in all the relevant constitutional contexts, ie, the constitutional right (a) under Article 25, available to women in their menstruating age, who are prohibited from entering the Sabarimala shrine, (b) available under Article 26 to those that manage the Sabarimala shrine, to preserve religious practices, and (c) of equality, liberty and dignity, available to women of menstruating age under articles 14 and 21.

But first, a preliminary word. The Supreme Court has had no occasion to consider the arguments articulated below, since none of the litigants made these points in the earlier court hearings.

Tersely stated, the rules of entry into Sabarimala prohibit entry to all individuals that fail to complete the requisite 41/42-day vratham (explained below).

The prohibition is not directed at women per se.

However, since women of menstruating age, cannot for physiological reasons, complete the 41/42-day vratham without disruption, they have been specified as a sub-category to be prevented from entering the Sabarimala shrine.

I. Article 25 – Freedom To Practise Religion

In simple terms, Article 25 gives all persons the freedom to practise, profess and propagate religion.

However, Article 25(2) gives the state (which includes the legislature, executive and the judiciary) an over-riding authority to make law in the interest of social welfare reform and throw open Hindu religious institutions to all Hindus. The legal view on the extent of the state’s authority pursuant to Article 25(2) has evolved over the decades.

Broadly speaking, this progression in case law (ie, law as interpreted by the courts), which has had a non-linear evolution, has taken the following route.

In the 1950s, the view was to allow the law to reform secular activities associated with religion, but not essential religious practices.

The early to mid-1960s saw the courts noting that the right under Article 25 was an individual right, that the law could not reform religion out of existence and that it was for the community to determine what religious practice was integral to that religion.

The 1990s saw a reiteration of the earlier established principle but added the legal construct that the protection in Article 25 (and 26) was also available to acts done in furtherance of religion.

Specifically, it was ruled that constitutional protection was extended to rituals, practices, observances, ceremonies and modes of worship that are integral to religion.

The early 2000s saw a reining in of the earlier principles and it was held that a religious practice, if opposed to public policy or social decency, would not be protected. This period also saw the clear articulation of the phrase ‘essential practices’ as being those religious practices without which the religion would not be a religion, ie, would not survive.

However, this was not the end. The last few years have seen the law evolve further and limit the protection to essential religious practices by constitutionally acceptable parameters, which would include the rights under articles 14 and 21.

Since the constitutional right under Article 25 is about the practice of religion, the question would be, what is “religion”?

In the context of Sabarimala, since the issue is about the right to practise Hinduism by entering the Sabarimala shrine, the question is also, what is “Hinduism”?

Also, how would one evaluate the applicability of the essential practices doctrine to the Sabarimala situation, what indeed is the essence of the Sabarimala tradition and who ought to have the right to challenge the local state law that regulates entry to the shrine, ie, who ought to have locus standi?

Religion: Indian courts have struggled with interpreting the term “religion”. Many court rulings note that the term was left undefined in the Constitution and that it may not be capable of any precise definition.

Further, there has been an issue with devising a precise definition which could apply to all religions, including for the reason that certain religions and traditions are atheistic (ie, reject the idea of god and divinity), while others are theistic (ie, accept the idea of god and divinity).

Hence, how does one evaluate the right in respect of a legal construct that is imprecise, and at times contradictory?

Hinduism: This confusion gets compounded when once seeks to explore the scope of Article 25 in relation to “Hinduism”, particularly since, like with the term religion, the courts have also struggled with arriving at a precise definition to the term “Hinduism”.

In many of its rulings, the Supreme Court has contemplated on the term as a mix of different theologies that exist in a country with a high degree of religious pluralism. It has been observed that different denominations and sects in India profess different religious faiths, beliefs and practices and that all these collectively have been described as “Hinduism”.

The courts have also noted the fact that these different theologies and schools have meant different things in different epochs and that Hinduism has evolved over multiple millennia, ie, from its early days to its current position in the modern era.

The analysis has noted the differences between the Agama and Vedic traditions as separate religious traditions, the paths of knowledge, karma and of bhakti, and the theistic traditions, on the one hand, and the atheistic on the other.

The courts have also noted explanations made by certain sects of Hindus that for them Hinduism was “science”.

Going further, the courts have also recognised and accepted the practical benefits of certain scientific practices in Hinduism, such as transcendental meditation, to achieve specific social outcomes.

This diversity in theologies poses a challenge in law, particularly since no Hindu is a believer or subscriber to all versions, theologies and practices that fall within the extensive canvass of the religion called “Hinduism”.

Hinduism, therefore, points to an agglomeration of different theologies, religious traditions, faiths and practices that exist on the Indian subcontinent. Hinduism is not, and therefore ought not to be considered, in the way one can do with monotheistic religion.

Compounding this problem is the fact that Hindu practices and belief systems vary through the country.

A few easy examples noticed in court rulings are (a) the north Indian practice of entering the sanctum sanctorum and touching the idol, while in southern India a devotee would not be allowed such a privilege, (b) the differences between the Shaivite, Vaishnavite and Shakta traditions, etc.

The courts have also recognised the implications of different Agama traditions and practices in different regions and in different temples. The truth is that one school or practice or Agama tradition is capable of being as different from the other as Christianity might be from Islam.

The issue is, therefore, whether these different theological traditions in Hinduism ought to be treated as different and distinct traditions, like with Christianity and Islam, etc.

A separate analysis would be needed to explore the divergent theologies that constitute the Hindu religion, and its evolution over multiple millennia, all of which brings us to today’s modern Hinduism.

There are too many moving parts to consider, particularly when the court is required to evaluate the right of a modern Hindu to practise a distinct Hindu tradition which is not part of his or her culture, roots or ethos.

Essential Religious Practice: Adding to this maze of moving legal constructs is the principle that the courts would only protect essential religious practices under Article 25. So how does one offer protection to a set of essential practices that are integral to Hinduism, a religion that is incapable of any precise definition. A nightmare of a problem, which needs some very careful threading.

Given the diversity of Hinduism, should the notion of essential religious practice be considered with respect to each distinct religious tradition as against the ambivalent catch-all idea of “Hinduism”?

The Supreme Court, in a 2015 ruling, noted that what is found and held to be prescribed by one set of Agamas for a solitary temple or a group of temples would be determinative of the issue. This observation is also consistent with a long line of court rulings that have evaluated the legal construct of essential practices and practices integral to religion in the context of specific individual temples and/or group of temples.

Hence, one might conclude that a determination of essential practices and the right to practise Hinduism under Article 25 needs a flexible approach. In the context of special and localised religious traditions, such as the case of the Sabarimala tradition, the right must be construed in the circumstances inherent in that specific religious tradition and not in the backdrop of the general idea of “Hinduism”.

Consequently, the search for essential practices in respect of the Sabarimala shrine ought to be undertaken in the context of that specific Tantric traditions in play at the shrine.

Sabarimala Specifically: Moving to the specifics of the practices pertaining to the Sabarimala shrine, it is erroneous to view this in the limited context of entry into the shrine or to view its traditions in the context of Hinduism as a monothetic religion.

The correct perspective would be to appreciate the entry rules to the Sabarimala shrine in accordance with the purpose for which the shrine was established, ie, a pilgrimage to the shrine is meant to be a culmination of a special Tantric spiritual process, which begins on the first day of the vratham and ends with a darshan of the Deity.

The entry rules are not to be viewed as a standalone effort to regulate entry to the shrine. This is not a shrine where people, be it man or woman, are permitted to casually stroll in and offer prayers or pass through to appreciate Hindu culture and tradition or appreciate the beauty of the temple.

Whether one is to go by the Puranic tale of Prince Manikandan formulating the rules of the pilgrimage or one looks to find the underlying Tantric explanation, the goal of this tradition has been to bring about an acceleration in the spiritual development of a pilgrim.

This acceleration is brought about in two stages:

(a) As the first step, the expectant pilgrim undertakes a 41/42-day vratham/penance (computed as seven days to cleansing each of the five levels of the human being, with the sixth week dedicated to cleansing the auric body, and ending on day 42 – a Tantric construct).

(b) As the second step, the pilgrim proceeds on pilgrimage carrying the traditional holy bundle, ascending the sacred 18 steps and entering the shrine to get darshan of the deity.

This entire process is capable of being disrupted by various occurrences, both voluntary and involuntary, but regardless of the reason for the disruption, the scriptures prohibit entry to the shrine for all individuals that fail to perform the entire 41/42-day vratham.

The prohibition is meant primarily to protect the energy of the deity from disruption and desecration, which would occur if the deity’s energy were to be exposed to an unending stream of incompatible human energies (the theological perspective being that unless one performs the full 41/42-day vratham, their energies would be incompatible with the energy at the shrine and damaging to the deity’s energy).

The prohibition is also meant to prevent possible adverse consequences to persons that visit the shrine without undertaking the prescribed cleansing vratham exercise.

Some of the involuntary ways the vratham could be disrupted include the possibility of a death or birth in the family, which applies to both men and women, and or the occurrence of menstruation, which is relevant only to women.

Given the impossibility of being able to identify those that had failed to complete the vratham and prevent them from entering the shrine, the local state notification follows a two-step approach.

Principally, the notifications prescribe the need to complete the vratham and disqualify those that fail to complete the same. Thereafter, the notifications leave it to the pilgrims to self-regulate the requirement to complete the vratham.

As an addition to the principal requirement, the notifications proceed to identify the one category of individuals that were unlikely to complete the 41/42-day vratham, ie, women in the menstruating age, since menstruation would normally occur at least once in a 42-day period, thus breaking the vratham.

The Tantri, in his dream, and the Devaprashnam (both accepted processes in Keralite Tantra), in different ways, articulate the issue faced by women of menstruating age, who for physiological reasons could never comply with the 41/42-day vratham requirement.

Hence, the state notification went on to specify women in a menstruating age (ie, between the ages of 10-50) as a prohibited category. This is not meant to demean women, but only to identify the one category that could possibly never comply with the religious requirement of a vratham.

Having said that, nobody has ever explored the possibility of a woman who stops menstruating before the age of 50 or one starts menstruating prior to the age of 10, the age limits prescribed in the local state law.

Adding to the confusion, there is the possibility of a woman consuming pills to delay her menstrual cycle so as to be able to undertake the entire 41/42-days vratham. Since these issues have never been raised, there has been no occasion for anyone to explore these possibilities. Maybe the mystics and Tantrics would have a view on the subject; however for the present, this possibility is left unanalysed.

Clearly, the prohibition on entry imposed on those that did not fulfil the requirement of a 41/42-day vratham is of a religious character and not a secular practice, and it is an essential religious practice which is integral to the Sabarimala tradition and since time immemorial.

The prohibition, in addition, can be described as a religious practice that is not outside constitutionally acceptable parameters, given that its object is not to discriminate or demean anyone, or look down on any naturally occurring bodily phenomenon. As such, this ought to be a right that is allowed protection under articles 25 and 26.

A follow up analysis could take up the task of explaining the Tantric aspects of the Sabarimala tradition and the workings of the 41/42-day vratham. Once that aspect is understood, it would also be apparent that allowing individuals who had not fulfilled the need for a 41/42-day vratham in large numbers would be a negative for the shrine.

Hence, if the law is changed to permit many non-compliant individuals into the shrine, the deity would be disturbed and/or desecrated, and this specific religious tradition would have been reformed out of existence, it would be destroyed.

Such an outcome, as noted in many court rulings, is not the purpose of law. Hence, even if there is a reasonable possibility that such a desecration could occur, the courts ought to stay away from striking down the prohibition.

Locus Standi: The above also brings us to the issue of who can challenge a state law that incorporates a religious tradition. Relevant to the context is that courts have held that the word “religion” in article(s) 25 (and 26) as being personal to the person having faith and belief in the religion.

Hence, the legal ability of any Hindu to challenge the prohibition in Sabarimala ought to consider the challengers’ personal subscription to belief in the tradition under challenge. Though lack of importance to locus standi has been remarked on in the 2015 Supreme Court ruling, it has gained significance in the Sabarimala case.

Locus standi was never an issue in the past, since in all relevant court rulings, the petitioners were seeking enforcement of the right as a personal right. In all these instances, the petitioners personally subscribed to the religious practice they were seeking to protect and in fact the petitioners were priests or managers of religious shrines and were trying to protect their right to lead worship or manage those religious institutions.

This is not true in the context of the Sabarimala dispute since the petitioners, though they could fall within the general description of the term Hindu, cannot be said to be subscribers or believers in the Sabarimala religious tradition. They are at best Hindus seeking to assert a casual walk-in right, available to devotees, pilgrims or visitors at most other Hindu shrines.

The issue of locus standi has specifically been flagged as a point of contention in the dissenting 2018 ruling on Sabarimala. While most judges side-stepped this issue, one of the majority rulings held that locus standi ought not to be a road block for the challengers.

In doing so the ruling relied on the above mentioned 2015 ruling and the principles applicable to public interest litigations (PILs), ie, a third party’s right to seek legal remedy in public interest.

However, what has been ignored is the fact that the doctrine of locus standi in PILs was evolved in the context of secular rights, ie rights capable of being personalised and comprehended by all citizens.

In the context of Article 25, given that a religious need is capable of being fully comprehended only by a subscriber to or a believer in that religion, this principle should not apply.

For example, a Christian ought not to be permitted to challenge a practice in Islam. In one case, the Supreme Court has ruled that worshippers lay great store by their rituals and ceremonies, and whatever other people, not of the faith, may think of these rituals and ceremonies, they are part of the Hindu religious faith and cannot be dismissed as either irrational or superstitious.

Hence, it is essential that anyone challenging the prohibition on entry into the Sabarimala shrine be a subscriber or believer to the practices and tradition being followed at Sabarimala. It would be a travesty if a non-believer or non-subscriber in the specific religious tradition at Sabarimala can challenge its practices merely because they are one kind of Hindu.

To conclude on the issue of freedom under Article 25, and the related locus standi issue, it would be fair to think of the right as being available to a believer or subscriber of a specific tradition, and not a right available to Hindus across different religious traditions.

The principles of PIL ought to apply to the extent that the challenger, being a believer/subscriber, is viewed as a representative of other believers/subscribers. The mere fact that the challenger is a Hindu ought not to be sufficient to give locus standi since there are many traditions and faiths that have been grouped together to create the Hindu religion.

II. Article 26

Article 26 becomes relevant only in the context of a right to manage and preserve the Sabarimala religious tradition. Language in the Constitution implies that the right is available to a religious denomination or a section of a denomination.

The term denomination in a religious sense has been viewed as a collection of individuals with a common set of beliefs or common faith, with a common organisation and classed together under the same name.

In the Sabarimala case, the Supreme Court held that since the devotees did not have a common name, it was not a religious denomination. A closer look would establish that this view was narrow and erroneous in this context, and hence resulted in an uninformed outcome. The court had failed to notice two critical aspects of relevance.

One, that in past cases, the petitioners who had asserted rights under Article 26 were not denied the right merely because they did not fall within the strict parameters used to analyse the term “denomination”.

Two, given the way the term “Hindu” is defined, ie, in an all-encompassing sense, Hindus would never check all the boxes needed to be categorised as a denomination and hence their rights under the said Article 26 would be interpreted out of existence and they would be denied its protection. This could never have been the objective of Article 26.

This issue must, therefore, be analysed in the context that Hindus have no single system of beliefs or common faith, have no common organisation, and often may not have a distinctive name.

In most prior cases, whether these related to mutts or temples, the courts entertained arguments under Article 26 though the “denomination” description may not have been passed in certain cases and all rejections were for the reason that the essential practices test was not passed, or the statute was seen to amend secular aspects of a religious practice.

Hence, it was erroneous to reject a defence of the tradition on the basis that followers of Sabarimala were not a denomination or part thereof.

Having said that, a closer look of relevant case law would also establish that this interpretation of the term “denomination” was initially enunciated as “obiter dictum”, ie, observation in the passing, and not as “ratio decidendi”, ie, rule of law, and hence not binding. But that’s too much of law for a general piece of analyses, such as this.

Concluding on the issue, a more appropriate approach may have been to view the champions of the prohibition as persons seeking to enforce rights under Article 26 as a section of the Hindu denomination.

That could then have led to a more substantive approach, ie, determining if the petitioners were seeking to protect a secular practice or were asserting a non-essential religious practice not integral to the Sabarimala tradition, or indeed if the right sought to be asserted, even if an essential practice integral to religion, was within or outside constitutionally acceptable parameters.

III. Discrimination – Articles 14 And 21

Last, but not the least, is the issue of discrimination against women based on sex, brought about by the practice of age-old patriarchy. This element of the debate holds primacy in the public mind, which often sees the dispute as being about unequal treatment of women and one of discrimination.

Textbooks could get written on the subject. Issues such as discrimination, reasonable classification, presumption in favour of the law etc, have been ruled on by the courts extensively. For the present analysis, the following principles in constitutional law would be relevant:

(i) Differential treatment need not per se violate Article 14, provided there is a nexus between the classification and the object under consideration. To be unconstitutional, there should be no reasonable basis for the differentiation.

(ii) However, to pass the test of permissible classification, a couple of conditions need to be fulfilled: (a) the classification must be founded on an intelligible differential, but this does not mean that the classification should be scientifically perfect and logically complete; and (b) the differential must have a rational relationship with the object sought to be achieved.

(iii) Only a person who is aggrieved by the alleged discrimination can move a valid challenge, though this principle has been diluted in the case of PILs for secular situations.

(iv) There is a presumption in law that favours constitutionality of legislative action. This presumption in favour of constitutionality is capable of being rebutted only with (a) intrinsic evidence – where discrimination is writ on the face of the rule/statute; or (b) extrinsic evidence – the petitioner adducing evidence to show discrimination.

(v) The burden of proving discrimination is on the person claiming discrimination.

Article 21 of the Constitution protects the right to life and liberty, which has been held by the courts to include the right to live with dignity. Considering the above analysis and the objective of the prohibition at Sabarimala, it is a stretch for anyone to claim that the prohibition was meant to demean or bring ridicule to the phenomenon of menstruation or to women of menstruating age.

The outcome, if the above principles are applied to the Sabarimala debate would be as follows:

  • There is indeed a nexus between the classification (of those that have not completed the vratham, which includes women of menstruating age) and the object of the differentiation. Limiting entry to the shrine to individuals that have completed the vratham is meant primarily to preserve the energy of the deity and to prevent it from desecration.
  • The classification is indeed founded on an intelligible differential, though the classification may not be scientifically perfect or logically complete.
  • In a religious sense, only an individual who has completed the full 41/42-day vratham is denied entry into the shrine ought to have the right to bring a constitutional challenge, including as a petitioner in a PIL. Those seeking to assert casual walk-in rights do not have locus standi.
  • Constitutional presumption must favour legitimacy to a religious prohibition incorporated into state law, and the court should not strike down a state law unless the presumption is rebutted by a petitioner in accordance with accepted constitutional principles.

One would conclude the above analysis by summarising that the prohibition on entry into Sabarimala is a religious practice, fundamental and hence essential to the religious tradition at the shrine. Without this, the religious tradition at Sabarimala would stand desecrated out of existence.

Hence, the prohibition and the religious tradition at Sabarimala is entitled to protection under Articles 25 and 26 of the Constitution of India.

And lastly, while the prohibition does involve a classification, its object is not to discriminate or be derogatory of women and hence the prohibition ought to pass the test of articles 14 and 21 and is consistent with acceptable constitutional principles.

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