- Abhijith S Kumar
“Should judges ignore the disaffection caused by decisions? The spirit of the law demands a considered appreciation of the social milieu. The invocation of battle [review petition] metaphors to sanctify a review-worthy judgment is nothing but an apology for judicial absolutism”, opined a civilian in response to the review application against the Sabarimala verdict. However, a large section also maintains that “the decision reaffirms the Constitution’s transformative character and derives strength from the centrality it accords to fundamental rights.” Both observations raise cardinal issues on the judicial process and constitutional aspirations, which is sought to be addressed hereafter. Even when the author desires to side with the revolutionary evolution of feministic jurisprudence in this judgment which upholds constitutional morality as against the patriarchy driven ‘public morality’, the glitches in the majority opinion cannot be overlooked and therefore falls in a dilemma.
The judgment rendered by Dipak Mishra, J. opens thus: “The irony that is nurtured by the society is to impose a rule, however unjustified, and proffer explanation or justification to substantiate the substratum of the said rule”. The learned judge goes on to acknowledge the long history of oppression that women had to suffer and traces dualism in religion driven by gender stereotypes as reasons resulting in indignity to women. The rape culture prevalent in India and gender-specific violence and discrimination stems from the factum of gender role attribution. As a social institution, the courts in India also have a socio-moral obligation to interfere in such matters. However, one of the very basic issues that popped up in the judgment was the constitutional authority of courts to comment on religious matters.
Faith and religion are so intertwined with the culture and social fabric of the nation that often more rights are attributed to deities as opposed to the hapless subjects who are ‘living’. The very discussion of celibacy and austerity exposes the vulnerability of Indian society, which sadly doesn’t seem to do anything other than suppressing dissent voices, the protests that followed being proof. Unfortunately, that arguments were raised to extend constitutional rights to the deity beyond the property rights, the extension of which was the reason for conferring a juristic personality.
Placing reliance on the concept of secularism, Indu Malhotra, J. vehemently attacks the interference of courts in religious matters. Whereas, D Y Chandrachud, J. condemns the Bombay High Court decision in Narasu and holds that immunising customs and usages takes away the primacy of the Constitution and thereby exorcises the ‘Ghost of Narasu’. Religion being yet another social institution, leaving it unregulated beyond the purview of the judiciary may open a Pandora’s box. For this reason, the majority opinion holds good.
The court discussed among the above-mentioned issue, the issues pertaining to the right to worship, dimensions of public morality, conceptual clarity of ‘essential religious practice’ doctrine and untouchability. Then remains the initial premise from where we started – the acceptable limits of judicial activism and consideration of public sentiments and practicability of enforcement.
The right to worship stems from Article 25 of the Constitution. The majority opinion places emphatic reliance on the usage ‘all persons’ within the Article to put across that the right is available to everyone irrespective of their gender. This is not denied in the dissenting judgment. However, the reasoning given by each of the judges suffer from clarity or rather are conflicting interpretations of the same premise.
Dipak Mishra, J. explaining the tenets of religious freedom, draw observations from Nar Hari Shastri:
“Once it is admitted that the temple is a public place of worship, the right of entrance into the temple for…. worship is a right which flows from the nature of the institution itself, and for the acquisition of such rights, no custom or immemorial usage need to be asserted or proved.”
The excerpt is a positive statement that negates the need for any evidence of customary practice to acquire the right of entry. But it is noteworthy that the same doesn’t negate the evidentiary value of custom to restrict entry. The challenge is posed in the further paragraph:
“Right of entering the temple…is a legal right in the true sense of expression but it can be exercised subject to restrictions which the temple committee may impose in good faith…for ensuring proper performance of customary worship.”
Section 15A of the Travancore Cochin Hindu Religious Institutions Act, 1950, the provisions of which formed the basis for the finding of the temple in dispute as a public temple limits the functions of the Board “to see that the regular traditional rites and ceremonies according to the practice prevalent in the religious institutions are performed promptly.” Thus, it seems that the learned judge contradicts at this juncture.
But the view on constitutional morality seems to rectify this defect. The limitations under Article 25 include public order, morality and health, and all the judges had limited the discussion to public morality. The discussion on public morality is rather interesting. Deepak Mishra, J. concurred by R F Nariman, J. equated public morality to constitutional morality. Even when doubt exists as to the veracity of this conclusion, from the observations in Manoj Narula, wherein it states that the traditions and conventions have to grow and sustain the value of constitutional morality, it is clear that constitutional morality can form some force reshaping traditions. This idea is further backed by SC’s finding in Navtej Singh wherein SC acknowledges the diversity of thought and aspirations but insists on non-abridgement of others’ rights, upholding the principle of constitutional morality.
D Y Chandrachud J. even goes on to reject the ‘prevailing social conception’ test of evaluating public morality which has been propounded in the context of Article 19. He goes on to develop the concept in terms of justice, liberty, equality, and fraternity. The learned judge purports an exalted value to ‘dignity’ and identifies constitutional morality as the resort to ensure it and hence opined: “The founding faith upon which the Constitution is based in the belief that it is in the dignity of each individual that the pursuit of happiness is founded”.
Also, Chandrachud J.’s analysis of Article 25(2) is pertinent. It is found that though this provision doesn’t place a positive duty on the State to throw open Hindu religious institutions of public nature to all sections of Hindus, analysed with the historical background in which the Constituent Assembly drafted it, it shows that the Assembly intended to protect the State measures in enforcing constitutional mandates from circumscription by Art. 25. Thus, the respected judge explains the tenets of religious freedom in correlation with constitutional morality. It is maintained that the individual right of freedom of religion is subject to the overriding constitutional postulates of equality, liberty and personal freedoms under Part III.
Whereas, Indu Malhotra J. maintains that the right to worship is to be predicated based on the affirmation of a belief in the particular manifestation of the deity in the temple. This seems to be an argument formed of the premise of identification of faith as a standard form contract wherein if one does not intend to believe the faith as to how it is, he can’t exercise the claim of his right, which is absurd. An interesting observation would be: “The right to gender equality to offer worship to Lord Ayyappa is protected by permitting woman of all ages, to visit temples where he has not manifested himself in the form of a ‘Naishtik Brahmachari’, and there is no similar restriction in those temples.” The underlying concept behind this proposition is that the right to worship doesn’t include the right to worship at any and every place of worship, as propounded in Ismail Faruqui, though the matter has not been cited or referred. But in this regard, a distinction is to be made as in Ismail Faruqui, such a conclusion was made as it involved acquisition of place of worship effectively denying the opportunity to all persons in a particular religion whereas such a proposition doesn’t stand good when one section of the community is allowed entry while a counterpart is denied the same right.
Even when Indu Malhotra, J. understands constitutional morality as achieving the objects contemplated in the Constitution, observes that notions of rationality cannot be invoked in matters of religion by courts. This seems outwardly contradictory, but a close introspection leads to the conclusion that such a deduction is made on the identification of ‘pluralistic nature’ and ‘secular polity’ as one of the elements intended to be protected by the Constitution. This leaves us in a dilemma of ranking dignity and pluralism based on the importance that the Constitution ascribes to each.
The majority judgment favoured entry of women of the impugned age group on the ground that such a restriction doesn’t qualify as an ‘essential religious practise’. What constitutes an essential religious practice must be determined concerning its doctrines, practices, tenets, historical background, etc. Thus, the taking away of such a practice, if it results in a fundamental change in the character of the religion, then it’s an essential practice. Citing Ratilal Panachand Gandhi, Indu Malhotra J. identifies essential religious practice as those which are claimed to be so. This, the author finds an incorrect proposition of law as later judgments including the latest decision in Shayara Bano allow judicial reasoning in this regard. The learned judge relies on Sheervai’s comment on Shirur Mutt: “what is ‘superstition’ to one section of the public may be a matter of fundamental religious belief to another.” The author doesn’t dispute this but points out that this along with other authorities cited had discussed this proposition in the light of the rights of religious denominations. However, herein, it cannot be satisfactorily concluded that Indu Malhotra, J. succeeds in establishing Lord Ayyappa worshippers as a separate religious denomination.
In the discussion relating to the question of whether Sabarimala pilgrims form a religious denomination, the author aligns with the majority decision that ruled in negative. The discussion on religious denomination throws up a much interesting question as to whether one can be a part of more than one religious denomination at the same point in time. Going by the minority judgment, the answer should be in affirmative, in which the author finds a dilution of the settled rules on denominations. The very idea of a denomination is the existence of a common faith, the satisfaction of which seems impossible when one simultaneously believes in another faith too.
One of the laudable findings made by Chandrachud J. is on ‘untouchability’. Adhering to usage in Article 17, untouchability of ‘all forms’, the lordship deviated from the previous SC judgments that confined the concept of untouchability to caste-based exclusions. Overthrowing the reasoning made in the precedents limiting the scope of untouchability owing to the factum of the word ‘untouchability’ being put within inverted commas (“ ”), Chandrachud J. identified the notions of “purity and pollution” as the sustaining force of untouchability and found it to be against the tenets of dignity and constitutional morality.
Even when, the majority judgment conforms to the
transformative vision of the Constitution, the public sentiment has made it in
a way impracticable to enforce. Thus, the question arises as to whether public
sentiments and the practicability of enforcement be considered while exercising
the judicial process. At times, as Cardozo himself has pointed out, the judges
will have to use knowledge other than those relating to law, including those
from life to address a social issue. This may be seen as judicial activism as
it exists today. However, consideration of public sentiments may gain
popularity to the judge but may cause serious damage to the principles of the rule
of law. The recent incident of police encounter of rape accused challenges the
very sanctity of legal conscience and is nothing less than a move instigated by
popular will. Constitutional morality also calls for respect for governmental
organs and the democratic process.
The author is a 4th Year Student currently studying at NUALS, Kochi
 Indian Young Lawyers’ Association & Ors. v. State of Kerala & Ors., 2018 SCC OnLine SC 1690.
 Narasu Appa Pattil v. State of Maharashtra, 2004 SCC OnLine Bom 1142.
 Nar Hari Shastri v. Shri Badrinath Temple Committee, AIR 1952 SC 245.
 Manoj Narula v. Union of India, (2014) 9 SCC 1.
 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
 Ismail Faruqui v. Union of India, (1994) 6 SCC 360.
 Commr., Hindu Religious Endowments v. Shri Lakshmindra Thirtha Swamiar of Shirur Mutt, AIR 1954 SC 282.
 Seshammal v. State of Tamil Nadu, AIR 1972 SC 1586.
 Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388.
 Shayara Bano v. Union of India, AIR 2017 SC 4609.