RIGHT TO RELIGION VS EQUALITY- A CONSTITUTIONAL CONCERN FOR SABARIMALA by Hemanth Kumar

INTRODUCTION

There has been a heated debate and discussion in the recent times, regarding the entry of women between the age of 10-50 years in the hill temple of Lord Ayyappa situated at Sabarimala, in the case of young India lawyers association vs. the state of Kerala, the supreme court in its judgment dated 28 September 2018 with a  4:1 verdict, had observed that the practice followed was flawed and considered it to be unconstitutional, breaking the age-old custom and allowing women of all ages to enter the temple, this judgment was not welcomed by the followers of the deity and members of the religion. Following the judgment as many as 60 review petitions were filed before the honorable court, for revisiting its decision, the court on that basis in its order dated 14 November 2019 referred this to a larger bench of seven judges and latter it was allotted to a nine-judge bench for hearing this matter. The primary aspect of this article is to study and analyze the constitutional status of the various fundamental provisions associated and related it to the facet of constitutional preview and competence of the court in entertaining such issues.

BASIS OF RELIGION UNDER THE INDIAN CONSTITUTION

We live in a country wherein for years people belonging to various religions, origins, cultures, languages have been residing together and have been following some practices, moral or religious codes which eventually with the passage of time become a way of performing or following a tradition, this is called a customary practice. Due to the presence of such religious pluralism in our country, the framers of our constitution emphasized providing certain provisions for protecting and propagating them it, inserted articles 25[1] and 26[2]which are incorporated in part three of the constitution dealing with the fundamental rights. In this case, the most interesting portion is the in-principle opposition to the interpretation of article 14 which provides for the right to equality and also is the religion which most of the times does not possess any scientifical or logical background, can such concept which is the basis of human belief in his/her subconscious mind, ever be determined, ratified or even be constitutionally defined or demarcated, especially in our nation? The answer to this requires various intellectual opinions, deep understanding of constitutional philosophy, experts of constitutional jurisprudence, interpretation of both logical and illogical nature and many more such sources, but there cannot be any straight jacket formula or approach for such complex constitutional issues.

In this case, the court refused to consider the devotees of Lord Ayyappa as a separate religious denomination, and even did not consider this practice(barring women of 10-50 years of age from entry ) as part of essential practices, categorically classifying this as not a core portion of the religion. Then the question arises that what practices should be considered essential to a religious sect and whatnot, this substantive question of constitutionality can be better answered or interpreted with the help of article 26  of the constitution which contains provisions for the management of one’s religious affairs, for which a religious institution must qualify as a denomination in itself and clearly in this case the temple at Sabarimala completely satisfies all the required norms and regulations as specified for constituting a religious testament(denomination) and this so-called test of eligibility can be verified and justified by a plethora of supreme courts judgments, like in the case of S.P. Mittal vs. Union of India[3] the court precisely mentioned the essentials to be qualified as a separate religious denomination firstly- the organization must have adherence to a common framework of faith or belief, secondly, the individuals following the common faith must also adhere to the organization, that is belonging to a common organization. Thirdly categorized or be accepted/ known by a designation, in simple terms must have a distinctive name.

These were the three defined principles established by the supreme court to qualify as a separate religious denomination, the temple in this case that is Sabarimala completely and unambiguously satisfies them, it complies with all the aspects, that is having its common faith in the form of worship of a particular deity(Lord Ayyappa), it has its own religious body ( Travancore Devaswom Board) and finally, all the followers have a particular distinctive identity, therefore satisfying all the norms to attain a separate denomination legally, constitutionally and religiously.[4]

 This test of the denomination can be further classified and understood in the case of Brahmachari Sideshwar Sahai vs. State of West Bengal[5], wherein there were followers of Ramakrishna, having a common belief and organization, they were en masse called as Rama Krishna matt/mission, in this case, the court applied the above-mentioned conditions for affirming the status of a denomination.

In the light of article 26 of the constitution, the supreme court had specified and highlighted the rights given to the religious organizations under clause (d) of this article, in the case of D.R.R Varu v. state of Andhra Pradesh,[6] had stated that if a religious organization is considered a denomination, then it has the autonomy to manage its religious affairs, which fall under the provisions prescribed in this article rendering it constitutionally protected. This judgment completes rests the arguments challenging the authority of the religious body in defining the code of worship, including the practices observed by the religious organization.

The historical eminence of this temple and its practices followed are since time immemorial, and not allowing a female above the age of ten and below the age of fifty is also a part of the customary practices followed,  making it an essential aspect of common belief and tradition, this issues if looked from both the legal and religious aspect is acquiescent with the concept of constitutional morality, which is very much relevant with this case, the concept defines the core idea and principles objectified by the constitution, clearly in this case defined with the interpretation of article 25 and 26, but is also equally in accordance with the provisions of others fundamental principles providing reasonable classification, the positivity of the constitution can be upheld only with the help of impartial judicial interpretation and if needed then a harmonious resolution among the fundamental rights, this delicate balance should always be maintained and protected.[7]

There are many arguments raised by the counsels and rights activists, based on scientific and logic behind such practice, which appear to be sounding valid but if looked upon then can we even argue on such grounds, because religion, faith or a belief do not have any substantial scientifical element or background involved, neither do they have any documentary evidence nor any such proof to justify it, they follow it as did their past generations but surely there is some mythological and religious logic to behind it, like in this Lord Ayyappa is considered a celibate. Hence it will be improper to question a religion or even an individual associated with it to justify such a custom.

Coming to the issues of the fundamental right to equality provided under article 14[8], the very statement that women are not allowed in the Sabarimala temple is wrong because only the women who fall under the category of restricted age group are not allowed and rest all are welcomed after observing mandatory penance of 41 days, known as the vratham. This does not fall under the classification of discrimination but attracts the reasonable classification principle and his principle is defined by the article itself, it profoundly permits the reasonable classification of objects, transactions and even persons. Mere reading this article without understanding its provisions and constitutional ratio present in, renders it in contrast with other fundamental principles.

Further, we arrive at another question of till what extent can a court of law interfere in the religious matters of a community, I think this can neither be defined by the court nor by the law itself, but there are certain constitutional barriers present and which have been highlighted in some judgments of the supreme court, like in the case of H.R. & C.E, Madras v. Sree Lakshmindra Thirtha Swamiar of Sri Shiruru Mutt[9], the court highlighted the fact that a religion has the right to prescribe the code of conduct for worship, also has the authority to prescribe other rituals, their modes of worship, observances for people seeking entry into the place of worship. In common terms it means that a religious organization has been provided authority to determine its own affairs, it is again a horizontal interpretation of article 26 of the constitution. This judgment observes that the court has a certain limitation in matters of religion, which is the function of a religious organization.

CONCLUSION

The problem arises when this issue is looked upon from only a single dimension, and sometimes even the court observes in this way, then here we see that the delicate fabric of constitutional morality gets interpreted from only one perspective, but in this issue of religious importance it is impossible to ignore various aspects related to it, if we don’t understand this and start following the rudimentary principles written in ink, then actually we start undermining the wider aspect and essence of the principle. This becomes a threat to the fundamental principle and ultimately the constitution, for which the court itself is the guardian. Such religious beliefs may not necessarily have scientific reasoning but are entwined with the unfathomable and irrefutable faith of millions and are protected under the principles of the constitution, the court of law can only lay down certain provisions for the entitlement of the religion, but if it is managed by the certain religious body then deep judicial intervention cannot be justified morally, legally and even constitutionally.

Name- Hemanth Kumar

Institution- Maharashtra National Law University, Nagpur

Education- pursuing B.A.LL.B (Hons), studying in 1st year, Semester – II

Phone number – 9693731834

Email ID- Hemanth10kr@gmail.com

 

[1] Constitution of India, Part III- Fundamental Rights, Article 25-(1) Subject to public order, morality and health and to the other provisions of this Part, all persons is equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law— (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

[2] Constitution of India, Part III- Fundamental Rights, Article 26- Subject to public order, morality and health, every religious denomination or any section thereof shall have the right— (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law.

[3] S.P.Mittal vs. Union of India- AIR 1983 SC 1.

[4] Rashi Sharma, Religious denominations under the Indian constitution, URL- https://blog.ipleaders.in/religious-denominations-indian-constitution/ ( assed on 25 December,2019) (23:14 pm IST).

[5] Bramachari Sideshwar Sahai vs. State of West Bengal- (1995) 4 SCC 646.

[6] D.R.R Varu v. state of Andhra Pradesh- AIR 1970 SC 181.

[7] V. S. Krishna , N. Parmesh Entry of women in Sabarimala Temple, A Right or A Right in disguise Published in International Journal of Trend in Scientific Research and Development, ISSN: 2456-6470, Volume-2 | Issue-5, August 2018, pp.1338-1342- URL: https://www.ijtsrd.com/papers/ijtsrd17092.pdf  ( assessed on 27 December,2019) ( 21:30pm IST).

[8] Constitution of India, Part III- Fundamental Rights, Article 14-The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

[9] H.R. & C.E, Madras v. Sree Lakshmindra Thirtha Swamiar of Sri Shiruru Mutt- AIR 1954 SC 282.

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