NEW DELHI: The Left Democratic Front (LDF) government of Kerala today informed the Supreme Court that it had no contestation over the entry of women of all age groups in the historic Sabarimala temple in the state. The counsel for the state government, which had earlier supported the ban on women’s entry into the temple in its additional affidavit filed in July this year, told the apex court it will now go by its original response filed in 2007 favouring entry of women in the temple premises.
Initially, the LDF government had taken a progressive stand in 2007 by favouring women’s entry into the temple, which was overturned by the Congress-led United Democratic Front (UDF) dispensation later.
The UDF, before losing power to the LDF this year, had said that it was against the entry of women of the age group of 10-50 years into the temple as such a practice had been followed since time immemorial.
With the recent air of bans and banned entries, the ban on temple entry of ‘menstruating women’ was enforced under Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965, which states that “Women who are not by custom and usage allowed to enter a place of public worship shall not be entitled to enter or offer worship in any place of public worship”. It is as distressing an irony as any that these rules were made under a legislation, Kerala Hindu Places of Public Worship (Authorisation of Entry) Act 1965, meant to attack discrimination and facilitate temple entry. In 1991, the Kerala high court upheld the ban in the S. Mahendran v the Secretary, Travancore case and directed the Devasom Board to implement it. The judgment went unchallenged for 15 years until the India Young Lawyers Association revived the issue in Supreme Court through a PIL contending that Rule 3(b) violates constitutional guarantees of equality, non-discrimination and religious freedom (Articles 14, 15 and 25). The PIL, filed in 2006, has seen many benches and weathered many retirements. and is currently before a bench headed by Justices Dipak Mishra, R. Bhanumathi and C. Naggappan of the Supreme Court.
The Kerala high court in 1991 held that the Sabarimala temple was within its rights to decide what were essential practices and to that extent, the custom of disallowing menstruating women into temple enjoyed constitutional sanction. It further held that the restriction on menstruating women was a restriction based on age and not ‘women’ as a class. In para 22 of the judgment, the high court said:
“The position that emerges is that a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion. No outside authority has any jurisdiction to interfere with the decision of such religious denomination. Article 26(b) gives complete freedom to the religious denomination to manage its own affairs in matters of religion. The only restriction imposed by that article is that the exercise of the right is subject to public order, morality and health.”
Article 26(b) of the constitution reads: “Subject to public order, morality and health, every religious denomination or any section thereof shall have the right to manage its own affairs in matters of religion”. The high court erred grievously in interpreting the limitations on the exercise of Article 26(b). For the custom of disallowing menstruating women to pass constitutional muster, it must have satisfied two tests – (i) the custom should have formed part of ‘essential religious practice’, and then examined on the touchstone of ‘public order, health and morality’. And the test notwithstanding, the denominational right to manage internal affairs can’t be wide enough to totally abrogate the individual right of religion for women.
Twin tests of essential religious practice and constitutional morality
The constitution guarantees individual rights [Article 25(1)], as well as group rights [Article 26(b)], but these guarantees are for ‘religious practices’ and not for all practices associated with religion. Over the years, the Supreme Court has developed a controversial doctrine of ‘essential religious practices’ to determine which religious practices enjoy constitutional protection. The career of the doctrine has been marked by shifting jurisprudence on what constitutes essential religious practices.
For quite some time now, the high threshold under this doctrine requires the denomination to demonstrate a contested practice as so central that its absence will change the nature of the religion fundamentally (Ananda Margi II case, Haji Ali case). So while the “non-entry” of women can be a religious tenet, in this case, it cannot be readily presumed that its regulation will fundamentally and irreversibly challenge the existence of the sect and its core belief system.
Even if this battle can be won by the Devasom Board, the constitution has subjected all essential beliefs and customs to a further test to allow regulation in the limited category of cases where public order, health or morality are imperilled. After all, a plurality of religious practices that predate the idea of nationhood and constitutionalism by centuries can sustain practises that are essential but still offend the spirit of the constitution in dangerous ways. In the landmark judgments of Naz Foundation and Shreya Singhal, ‘morality’ has been interpreted as ‘constitutional morality’ and not popular or individual morality. Constitutional morality may be understood as the core framework of values and principles like equality, non-discrimination, dignity, rule of law etc., that characterises and justifies the constitution. In the Sabarimala case, there is a very strong presumption that the controversial custom of restricting women offends the value of ‘non-discrimination’ which is the central pillar of that constitutional morality.