Judgment in Plain EnglishSabarimala Temple Entry
Today, September 28th 2018, the Supreme Court delivered its verdict in the Sabarimala Temple Entry case. A 4:1 majority held that the temple’s practice of excluding women is unconstitutional. It held that the practice violated the fundamental right to freedom of religion – Article 25(1) – of female worshippers and struck down Rule 3(b) of the Kerala Hindu Places of Public Worship Act as unconstitutional. Rule 3(b) allowed for Hindu denominations to exclude women from public places of worship, if the exclusion was based on ‘custom’.
The Court delivered four separate opinions written by: Chief Justice Misra, Justice Nariman, Justice Chandrachud, Justice Malhotra. Justices Nariman & Chandrachud concurred with the opinion of Chief Justice Misra. The dissenting opinion in the case was delivered by Justice Indu Malhotra.
Chief Justice Misra’s opinion
CJI Dipak Misra, speaking on behalf of Khanwilkar J & himself, observed that religion is a way of life intrinsically linked to the dignity of an individual and patriarchal practices based on exclusion of one gender in favour of another could not be allowed to infringe upon the fundamental freedom to practice and profess one’s religion. He stated that the exclusion of women between the ages of 10-50 years practiced by the Sabarimala Temple denuded women of their freedom of worship, guaranteed under Article 25(1).
Further, he held that the devotees of Ayyappa did not pass the constitutional test to be declared a separate religious identity. He said that they are Hindus. The temple’s denominational right to manage its own internal affairs, under Article 26(b), was subject to the State’s social reform mandate under Article 25(2)(b). Article 25(2)(b) provides that the State can make laws to reform Hindu denominations. Specifically, it allows the State to make any law that opens a public Hindu institution to all ‘classes and sections‘ of Hindus. Justice Misra interpreted ‘classes and sections‘ to include the gendered category of women. He concluded that the Sabarimala custom of excluding women is subject to State mandated reform.
He also held that the exclusion of women between ages 10-50 by the Sabarimala Temple cannot be an essential religious practice. He held that if the Ayyappans are Hindus, the practice of excluding women cannot be held to be an essential religious practice.
He struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules of 1965. He said that is both in violations of the Constitution and ultra vires to Sections 3 and 4 of its parent Act. Sections 3 and 4 of the Act were written with the specific aim of reforming public Hindu places so that they become open to all sections of Hindus. Rule 3(b) achieves the opposite — it allows public Hindu places of worship to exclude women on the basis of custom. Hence, CJI Misra concluded that the rule not only violates the Constitution, but also stands in conflict with the intention of the parent Act.
Justice Nariman’s opinion
Justice Rohinton Nariman delivered a concurring opinion. He held that the worshippers of Ayyappa do not constitute a separate religious denomination. He labeled them as Hindus who worship the idol Ayyappa. Thus he held that the Sabarimala Temple’s denominational freedom under Article 26 is subject to the State’s social reform mandate under Article 25(2)(b).
He declared that the exclusion of women from the temple effectively rendered their right under Article 25 meaningless. He emphasised that Article 25(1) protects the fundamental right of women between the ages of 10-50 years to enter the Sabarimala Temple and exercise their freedom of worship. He stated that there was sufficient material to conclude that the exclusion of women from Sabarimala violated Article 25(1).
He concluded that the Ayyappans’ custom of excluding women, between the ages of 10-50 years, from the Sabarimala Temple was unconstitutional. He also struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules of 1965 as unconstitutional.
Justice Chandrachud’s opinion
In a separate and concurring opinion, Justice D Y Chandrachud held that the exclusion of women between the ages of 10-50 years by the Sabarimala Temple was contrary to constitutional morality and that it subverted the ideals of autonomy, liberty, and dignity. He held that the morality conceptualised under Articles 25 and 26 of the Constitution cannot have the effect of eroding the fundamental rights guaranteed under these Articles. Justice Chandrachud concurred with the opinions delivered by CJI Dipak Misra & Justice Nariman to hold that the Ayyappans, or worshippers of Lord Ayyappa, did not satisfy the judicially enunciated requirements to be considered a separate religious denomination. He held that the exclusion was not an essential religious practice.
Justice Chandrachud further emphasised that physiological characteristics of women, like menstruation, have no significance or bearing on the entitlements guaranteed to them under the Constitution. The menstrual status of a woman cannot be a valid constitutional basis to deny her the dignity and the stigma around the same had no place in a Constitutional order. Significantly, Justice Chandrachud addressed the argument that the exclusion was a form of untouchability prohibited under Article 17 of the Constitution. He observed that a perusal of the Constituent Assembly Debates would show that the makers of the Constitution had deliberately chosen to not give the term untouchability a specific meaning. He concluded that this was to ensure that it was not understood in a restrictive manner and must therefore be given an expansive meaning. He further held that Article 17 is a powerful guarantee against exclusion and cannot be read to exclude women against whom social exclusion of the worst kind has been practiced and legitimized on notions of purity and pollution.
Justice Malhotra’s dissenting opinion
Justice Indu Malhotra delivered a dissenting opinion. She argued that constitutional morality in a secular polity, such as India, requires a ‘harmonisation‘ of various competing claims to fundamental rights. She said that the Court must respect a religious denomination’s right to manage their internal affairs, regardless of whether their practices are rational or logical.
She held that the Sabarimala Temple satisfies the requirements for being considered a separate religious denomination. She therefore held that the Sabarimala Temple is protected under Article 26(b) to manage its internal affairs and is not subject to the social reform mandate under Article 25(2)(b), which applies only to Hindu denominations. Note that Article 26, denominational freedom of religion, is subject to ‘public order, morality and health‘. Justice Malhotra held that ‘morality’ (constitutional morality) must be understood in the context of India being a pluralistic society. She stated that the State must respect the freedom of various individuals and sects to practice their faith.
She held that the fundamental right to equality guaranteed to women under Article 14 cannot override Article 25, which guarantees every individual the right to profess, practice and propagate their faith.
She held that Rule 3(b) does not stand in conflict with its parent Act, the Kerala Hindu Places of Public Worship Act. She emphasised that the rule ‘carves out an exception in the case of public worship‘. She held that the rule was consistent with Article 26(b) of the Constitution.
She dismissed the argument that the Sabarimala custom violates Article 17 of the Constitution. Article 17 pertains to untouchability and prohibits discrimination on the basis of impurity. She stated that, in the context of the Article and the Constitution in general, untouchability refers to caste and does not extend to discrimination on the basis of gender. Like Justice Chandrachud, she referred to the Constiuent Assembly Debates to establish how the founder intended to use the term untouchability. Unlike Justice Chandrachud, she concluded that untouchability does not extend to gender.