The Sabarimala Case: What Works And What Doesn’t

The Sabarimala Case: What Works And What Doesn’t

by Nihal Sahu - Monday, August 6, 2018 02:53 PM IST
The Sabarimala Case: What Works And What Doesn’tThe Sabarimala shrine. (Shankar/The India Today Group/Getty Images)
  • While Constitutional freedoms are important to the courtroom debate in the case, it is the argument of ‘essentiality of religious practice’ that should ideally be the clinching factor

The Supreme Court concluded oral submissions in Indian Young Lawyers Association vs. State of Kerala days ago, reserving judgement. The question before the court is whether a rule effectively prohibiting the entry of women of menstrual age into Sabarimala temple is constitutional. We will examine the arguments in favour of striking down the prohibition and the incalculable damage to constitutional text, legal reasoning, and common sense such an argument would require.

Such an argument will provide for the invalidation by judicial fiat of the practices of a religious denomination that has existed far longer than the court itself. The argument will provide for a radical rereading of the Constitution. It, if accepted, will neuter Article 26 (Freedom to manage religious affairs), sweep aside swathes of constitutional law precedent and make a mockery of statutory and constitutional interpretation.

In the case in which the US Supreme Court legalised same-sex marriage, the Chief Justice’s dissent began with these words: “Petitioners make strong arguments rooted in social policy and considerations of fairness.”

In the Sabarimala case, you could say the same. There is no reasonable excuse for prohibiting women of a menstrual age from entering a temple, just as there is no sane justification for regarding menstruation as unclean in the first place. The petitioner’s claims are eminently reasonable, as is their incredulity at women not being granted equal treatment in religious institutions. Equally important, however, is that their legal claims are ridiculous.

In the first place, reasonableness is not an argument that works against the brazen illogicality and unscientific nature of religious practice. To quote Justice Scalia: “Well, religious beliefs aren't reasonable. I mean, religious beliefs are categorical. You know, it’s what God tells you. It’s not a matter of being reasonable.” (OA in Holt v. Hobbs) This is precisely why the Right to Freedom of Religion Articles exist in the first place. Secondly, we do not recognise considerations of fairness where constitutional text stands to the contrary. This is as it should be. A legal system built on the personal moral beliefs of judges is no legal system at all. It is also the legal system we currently live under.

Second, we address the constitutional claims. The relevant Articles 14, 15, and 17 relate to equality before law, prohibition of religious discrimination, and the abolition of untouchability respectively. We can dispatch with the Article 17 claim without much analysis. Since women under the age of 10 or above the age of 50 can enter the Sabarimala temple, it makes no sense to argue that it violates a constitutional provision entitled the Abolition of Untouchability, of all things. Such a claim is not supported by textual analysis, history, or logic.

Next, let us consider Article 14 which says “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” An argument based on Article 14 runs into an immediate issue: the Devaswom Board is not ‘State’.

The term ‘State’ is defined in Article 12 as including “...local or other authorities within the territory of India” among other things. In Ajay Hasia v. Khalid Mujib, the Supreme Court laid down a fairly comprehensive test to discover whether a body was an instrumentality of the government or not. The intent of the test, however, was to ensure that the government was not able to subvert fundamental rights using the legal veil of another entity. Here, the government is not acting through another body for its own ends. It is, instead, codifying in its rules an existing custom.

And even if the Devaswom board were a state under Article 12, how would it violate Article 14? The jurisprudential Article 14 test is whether the classification you create has a rational connection with the object of the legislation. The object of the legislation in this case is the preservation of the customs of the temple. Hence, the classification is entirely reasonable.

A claim under Article 15, regarding the prohibition of religious discrimination, runs into similar issues. Article 15(2) reads:

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public [emphasis mine]

Straight out of the gate, the claim runs into a major issue. To say that Article 15(2)(b) even applies to the temple, you must first show that the temple is maintained ‘wholly or partly out of State funds.’ The provision at issue is Article 290A, which requires that a sum be paid out of the Consolidated Fund of the State of Kerala every year to the Devaswom fund. Considering this, all would be well for the petitioners. All would be well, of course, if you ignored the history, the intent, and the impact of Article 290A. In his written submissions, advocate Sai Deepak rebuts the Article 290A argument with reasoning that is devastating of the petitioner’s contention.

The origin of 290A lies in an obligation the Princely State of Travancore acquired along with the landed properties of the Devaswom boards. This was an obligation which the Union of India took over when the State of Travancore was integrated into the Union. Hence, it is quite ridiculous to say that the Sabarimala temple is ‘maintained wholly or partly out of State funds.’ It should be quite a surprise to those who make the 290A argument that Sabarimala makes about Rs 200 crore in annual revenues and that the paltry Rs 4,650,000 the Board receives under Article 290A are of no consequence whatsoever.

The Supreme Court’s essential religious practice test was laid down way back in 1954. The test states that if you can show your religious practice is essential to your religion, you are exempt from a fundamental rights challenge. The court will wade into the fatally marshy waters of theological interpretation and decide, on a case-by- case basis, what is truly part of a religion, and what is not, and therefore, what will receive constitutional protection, and what will not. The correctness or the uniform application of this test is another matter. For now, the question before us is whether the practice of prohibiting women of a menstrual age from entering Sabarimala is truly an essential religious practice. This issue was convincingly settled in the original 1991 Kerala High Court Case regarding Sabarimala. Paragraph 41 reads:

Since the deity is in the form of a Naishtika 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.

Since it is quite obvious that the relevant prohibition is clearly an essential religious practice as defined in the court’s jurisprudence, every single argument listed so far in this piece is redundant. The essentiality test is exhaustive in every sense of the word. Even if petitioners succeed in every one of their constitutional claims, they still fail.

Attempting to predict the judgements of the Supreme Court of India is as trying as it is futile. Yet try we must. Why, though? Despite all its faults, the Supreme Court of India is a venerable constitutional body. It is the closest India has to a separation of powers, and it is an admirable protector of personal liberty. It has not, however, been a protector of the Constitution. Until that comes to pass, and a respect for the constitutional text permeates the apex court, we must point out fallacies, explode myths, and question the unconstitutional wielding of judicial power. The attempts of an eternally vigilant people to safeguard their democracy by the constant questioning of governmental authority and action are made impotent if we neglect to restrain the excesses of the judicial branch.

Nihal Sahu is a first-year BA LLB (Hons) student at the National University of Advanced Legal Studies, Kochi. He blogs at

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