Erroneous Shabarimala Verdict: If the Supreme Court has decided to raise its pitch on “constitutional morality”, equality and gender justice, it could have chosen a case more befitting than Shabarimala.
By coming down on a hapless Kerala shrine’s practice of barring women in the age group of 10-50, in consonance with the reigning deity’s celibate status, it has chosen an exceptional case to underline a broad principle. Unique cases make for bad law.
The final verdict, which went 4:1 in favour of ending this limited form of exclusion at this one temple, pits the combined wisdom of four male judges against one female.
Chief Justice Dipak Misra and Justice AM Khanwilkar wrote a common judgment, while Justices RF Nariman and DY Chandrachud produced separate ones while arriving at the same conclusion. Only Justice Indu Malhotra dissented, puncturing some of the pretensions of the majority verdict.
The major issues at stake were the following:
a) whether the temple’s exclusionary practice amounted to discrimination under articles 14 (equality before the law), 15 (non-discrimination) and 17 (outlawing untouchability);
b) whether this exclusion was part of an “essential religious practice”, and hence protected under Article 25 (freedom of conscience in religion);
c) whether the followers of Swami Ayyappa constituted a separate “religious denomination”, and thus entitled to additional protection under Article 26;
d) whether Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, which bars women between the ages of 10 to 50, is unconstitutional?
The majority judgment answered yes to the first question, and no to the next two. All four held Rule 3(b) to be discriminatory and struck it down, thus throwing open the temple to all women devotees, regardless of age. The dissenting judge, Indu Malhotra, said the exact opposite.
One aspect of the judgment emphasised by Justice Chandrachud needs critiquing. He drew false equivalence between the Shabarimala exclusion and the pernicious practice of caste untouchability. Justice Chandrachud said:
“The social exclusion of women, based on menstrual status, is a form of untouchability … Notions of ‘purity and pollution’ which stigmatise individuals, have no place in a constitutional order.” In doing so, he extended the ambit of Article 17 to areas well beyond caste.
The Shabarimala rules on temple entry do not constitute a general form of social exclusion of women. Justice Malhotra junks this idea: “The limited restriction on the entry of women during the notified age group does not fall within the purview of Article 17 … The analogy sought to be drawn by comparing the rights of Dalits with reference to entry to temples and women is wholly misconceived and unsustainable.
The right asserted by Dalits was in pursuance of the right against systematic social exclusion and for social acceptance per se. In the case of temple entry, social reform preceded the statutory reform, and not the other way about, The reforms were based upon societal morality, much before constitutional morality came into being.”
The real tension lies in the contrasting arguments used by Justice Chandrachud and Justice Malhotra. While the former uses high constitutional principle to put down one unique temple’s practice, Justice Malhotra strikes a balance between two sets of fundamental rights one favouring non-discrimination against any individual or group, and another allowing religious diversity in a secular polity.
The “discrimination” allegedly practised by the Shabarimala temple is unrelated to any common sense meaning of the term, for women can always worship Swami Ayyappa in their homes or in hundreds of other temples across India.
To claim you want to worship Swami Ayyappa and not have respect for what he stands for is the worst form of hypocrisy. More so when Hinduism does not restrict your choices of god to a grand total of one.
Both Justice Chandrachud and Justice Malhotra agree on one thing: it should not be the court’s job to decide what constitutes essential practice in a religion, or which group constitutes a separate denomination. But this does not stop the former from deciding that the Shabarimala practices are inessential to the practise of religion.
while Justice Malhotra simply states the obvious: “The issue of what constitutes an essential religious practice is for the religious community to decide. It is not for the courts to determine which of these practices of a faith are to be struck down, except if they are pernicious, oppressive, or a social evil, like Sati.”
Another point which none of the majority judgments even sought to address is basic: can somebody who isn’t even an aggrieved party claim discrimination? For Justice Chandrachud the “heart of the matter lies in the ability of the Constitution to assert that the exclusion of women from worship is incompatible with dignity, destructive of liberty and a denial of the equality of all human beings.” Justice Malhotra offers another perspective.
“The right to move the Supreme Court under Article 32 for violation of Fundamental Rights must be based on a pleading that the petitioners’ personal rights to worship in this temple have been violated,” she says, pointing out that the petitioners in this case had no skin in the game. On the contrary, genuine women believers in Swami Ayyappa launched a #ReadyToWait movement in support of the temporary entry restriction. Whose rights need more protection?
A closing thought: constitutional morality is an important check on religious obscurantism but when carried to an extreme it can also be destructive of harmless variety and difference.
There is a danger of reducing the Constitution itself to another unquestionable “holy book”, killing diversity in the name of countering discrimination.>