- Iqra Khan
India is a country of diverse religions; every religion has its own set of beliefs. Sometimes, the ideas of faith of a particular section of religion differ from the ideas of another section of people from the same religion. People might perceive the religion according to their own beliefs and that might contradict with the provisions that are enshrined in the Constitution of the country.
The Constitution of our country safeguards the rights of the people, but as said above India is a country of diverse religions and people are very closely attached to one’s own religion and its belief. They consider their faith as something that is between them and their God and no third person should interfere in it.
Can the judiciary interfere in such matters of faith? Can the law of the country be above the law of the religion or are we supposed to consider religious laws as the supreme command of God?
The issue of Sabrimala, a temple located in the district of Pathanamthitt, in Kerela is somewhat similar. It is a temple dedicated to eternal celibate deity, Lord Ayappa. Site of one of the world’s largest annual pilgrimage, Sabrimala temple debars entry of women from the age group of 10 to 50 years i.e. the menstruating age and it is sanctioned by Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, but on the other hand their entry is only prohibited only in this temple of Lord Ayappa, while they are allowed in other temples of Lord Ayappa.The reason behind this practice of prohibiting women is that this practice is essential to safeguard the Naistik Brahmachari(celibate) character of Lord Ayappa. A PIL was filed challenging the constitutionality of the rule. This judgment is a great example of gender equality but at the same time makes us question that since religion is attached to emotions, can the rationality of law be applied to matters of faith?
Whether this practice of exclusion of women is essential to religion?
An essential part of religion means the core beliefs upon which a religion is founded & essential practice means those practices that are fundamental to follow a religious belief. The test to determine the essentiality of practice in religion was laid down in the case of Commissioner of Police & Ors. v. Acharya Jagadishwarananda Avadhuta & Ors Ors.)[i], in which it was held that in determining if a practice forms an essential part of that religion, then taking away such a practice would result in a fundamental change in the character of that religion.
The petitioners had contended that the exclusion of women was not essential to the Hindu religion, also there were no scriptures or documentary evidence to prove that the exclusion of women is essential to this temple. Also, women are allowed in all other temples of Lord Ayappa indicates that this practice is not essential.
Referring to the case of Mohd Hanif Quareshi vs State of Bihar[ii], where Supreme Court held that slaughter of cows on Bakrid was not an essential practice. Similarly, in the case of Acharya Jagdishwaranand Avadhuta vs Commissioner of Police, Calcutta, [iii], Ananda Margis, a group of people who used to perform Tandava dance carrying knives, skulls, and sharp weapons in public place, Supreme Court held that Tandava dance is not an essential practice of Ananda Margis.
The respondents have on the other hand affirmed it to be an essential practice because of the celibate character of the Lord. They argue that women are allowed in other temples and not in Sabarimala temple is also because of the reason that Lord Ayappa has manifested himself in the form of celibate deity, while in the other temples he has not.
Whether the followers of Lord Ayappa constitute a religious denomination ?
In, S.P. Mittal v. UOI & Or. [iv]it was held that three conditions must be satisfied for being a religious denomination, which -(1) it must be a collection of individuals who have a system of belief or doctrine which they regard as conducive to their spiritual well-being, i.e., a common faith; (2) a common organization; & (3) designation of a distinctive name.
It was contended that the followers do not constitute a separate religious denomination, and due to this protection under Article 25 and 26 could not be provided since it is available to the religious institutions. But when we look at the tests, moving from condition one, the followers of Lord Ayappa do believe in the celibate nature of Lord Ayappa, secondly, they constitute a common organization which was maintained under the temple board, also the followers are known by the name Ayappans, which shows that all the conditions for religious denomination are fulfilled in this case.
Are women treated as untouchable and if so article 17 is also violated by such practice?
Another issue that raised was this practice of exclusion tantamount to treating women as untouchable due to their menstrual nature and it would not matter that Article 17 discusses untouchability in terms of caste system, because as far as constitutional interpretation of the word is concerned, it has not been defined in the Constitution.
The main question that can be asked and which practically is to be decided before moving forward with any of the contentions is of the maintainability of the PIL?
It was Justice Indu Malhotra, who discussed the issue of maintainability in this case, which is of extreme importance. It is of no doubt that if such cases are allowed where a person who doesn’t follow a religion gets a chance to question the faith and beliefs of other people, then such would open the floodgates of such PILs. In a country like India with so many cultures and beliefs, it is important to respect each other’s beliefs provided they do not create a problem for the public.
The judgment of the Supreme Court
After hearing all the arguments of both the parties the Supreme court in a majority of 4:1, declared that the practice is not essential to the religion, and hence will not get protection under Article 25 and 26, and finally held the practice as unconstitutional.
It is to be seen that the Supreme Court gave supremacy to the laws of the land over faith. When we see the dissenting judgment of Justice Indu Malhotra, we have to agree that if such kinds of PIL are allowed in the first place, then it would open the flood gates to such PILs challenging religious practices of different faiths. India has such diverse cultures and each culture should be respected by not interfering in the matters which remain essential to the religion. We see that it was not the women who were the followers of Lord Ayappa who had stood up for their rights, but those who did not as deep faith as others. They lacked the understanding and the emotion behind such practice. There are certain practices that are attached to one’s religion deeply, like the very one in question. In this judgment, the judges definitely gave preference to the law, but the question that if the rights of the women were violated when they were not allowed to worship, then the rights of the devotees were also violated when they were not allowed to worship the celibate deity according to their belief. These questions still remain. On the other hand, when we see the judgment given by the Supreme Court, it is in consonance with the Constitution of India, after determining that this practice has not been followed uniformly, this somehow shows that the real reason is limited to “purity” which has been denied bu the temple authorities. The practice robbed women of their constitutional rights including Right to Life which includes the right to live with human dignity. Certain review petitions have been filed and the matter has been forwarded to a larger bench of seven judges. It is a very important question, that what should be given preference law or faith? but the answer to it cannot be ‘only law’ or ‘only faith’, the answer to it should remain subjective.
The author is a 2nd Year Student of Jamia Millia Islamia University.
[i] Commissioner of Police & Ors. v. Acharya Jagadishwarananda Avadhuta & Ors., (2004) 12 SCC 770.
[ii] Mohd Hanif Quareshi vs State of Bihar, (1959) SCR 629
[iii] Acharya Jagdishwaranand Avadhuta vs Commissioner of Police, Calcutta, (1983) 4 SCC 522
[iv] S.P. Mittal v. UOI & Ors., (1983) 1 SCC 51.