SC verdict on Sabarimala a silver lining for protestors and devotees, but a lot will depend on definition of constitutional morality

There is some confusion over the implications of the Sabarimala verdict pronounced by the Supreme Court on Thursday. In a 3:2 split judgment , the five-judge bench led by Chief Justice Ranjan Gogoi and Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra have referred the issue of essential religious practices to a larger seven-judge bench. While Justices Chandrachud and Nariman have dissented, the majority of CJI Gogoi, Justices Khanwilkar and Malhotra have opined that the issues pertaining to court’s role in determining the essential practices of a religion (not just Hinduism) and what establishes Constitutional morality should be decided by a larger bench. Till the larger bench passes its verdict, the review petitions challenging the landmark 2018 Supreme Court judgment allowing women of all ages to visit Lord Ayyappa’s shrine in Sabarimala Temple, shall be kept pending. While dissenting judges (Nariman and Chandrachud) want no stay order on the earlier judgment, the majority did not touch upon the verdict passed by former CJI Dipak Misra and Justices Nariman, Khanwilkar and Chandrachud (Justice Malhotra was the sole dissenter in 2018) that had struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 — the basis for barring entry of women between the ages of 10 and 50. In absence of any clarity, it is implied that there is no legal bar on women of all ages continuing to visit the hilltop shrine in Pathanamthitta district in Kerala. [caption id=“attachment_6236401” align=“alignleft” width=“380”] A file image of protests against allowing women inside Sabarimala in Kerala. Reuters[/caption] Thursday’s ruling , that refers the issue to a larger bench to be constituted by CJI-designate SA Bobde at a future date, therefore, has come as a partial relief to the groups and Lord Ayyappa devotees who oppose the judicial decree permitting women of menstruating age to pray before the deity who is in a state of eternal celibacy (naishtika brahmachari). While it should gladden the devotees that the Supreme Court hasn’t dismissed the batch of review petitions challenging the 2018 verdict, the absence of a stay order may embolden activists who had argued in favour of right to pray and equality. Activist Trupti Desai — who tried to enter the shrine last year with six others but was forced to remain within the confines of Kochi airport due to a standoff with Sabarimala protestors — has already expressed her desire to exercise her right to pray. Since Sabarimala protestors may take Thursday’s verdict as a particle vindication of their stand, the Left Front government in Kerala has an unenviable job on its hands. Be that as it may, the majority judgment makes one important observation in referring the issue to a larger bench. It held that questions pertaining to essential religious practices should not remain restricted only to Hinduism and the entry of women in Sabarimala Temple but it should also examine issues such as legality of female genital Mmutilation in Dawoodi Bohra community, entry of women in mosques, right of Parsi women who have married outside community to enter the Fire Temple. This issue has larger implications and has split the court. While outgoing CJI Gogoi observed that whether the Supreme Court can serve as ecclesiastical and theological authority and interfere in practices that are deemed integral to a religion, dissenting judge Nariman felt that that “issues of Parsi women and Muslim women were not before the Sabarimala bench and hence the matter could not be tagged with them.” CJI Gogoi’s stance reminds one of the dissenting judgment written by justice Indu Malhotra last year where she observed that “religious customs and practices cannot be solely tested on the touchstone of Article 14 and the principles of rationality embedded therein."

The majority judgment, in effect, may be interpreted as leaning towards taking a sympathetic view of argument propounded by Sabarimala protestors and Lord Ayyappa devotees who have pointed out that the earlier judgment violates the essential customs and practices at the temple that are based on the celibate nature of the deity. This statement bears expansion.

If it is left to the courts to decide on what constitutes essential religious practices — such as whether Lord Ayyappa’s ‘naisthika brahmachari’ state may be construed as a character of the deity that is violated if certain customs are not adhered to — judiciary’s adjudication may only be based what we consider as on Constitutional morality. However, the majority judgment passed by CJI Gogoi holds that: “The expression ‘morality’ or ‘constitutional morality’ has not been defined in the Constitution. Is it over arching morality in reference to preamble or limited to religious beliefs or faith. There is need to delineate the contours of that expression, lest it becomes subjective.” This is an important observation. Unless the contours of ‘Constitutional morality’ is expressly defined, we may get differing interpretations by even the same bench. The 2018 judgment, for instance, relied on Constitutional morality to allow women of all ages to visit the “celibate” Lord Ayyappa, however in her dissenting judgment, Justice Malhotra also relied on Constitutional morality to argue that Constitutional morality gives every individual the right to practice their faith “in accordance with the tenets of their religion, irrespective of whether the practice is rational or logical”. While the court figures out the contours of Constitutional morality, it is worth refuting some of the strawman arguments surrounding the Sabarimala judgment and tradition. It has been frequently said by those who are in favour of Sabarimala Temple allowing women of all ages to visit the temple that the issue is essentially of “untouchability”, superstition and equality before law.

It is patently immoral and absurd to hold menstruating women as "impure" and justify discrimination against them. If a shrine is a public place, it cannot discriminate on grounds of any "impurity" arising from gender, caste or religion or bodily function. #SabarimalaVerdict

— Sagarika Ghose (@sagarikaghose) November 14, 2019

This is a misleading argument. The issue is not of untouchability or equality, but the rights of a deity in his abode — the temple. It is to be understood that the customs and practices being referred to are not an essential characteristic of Hinduism, not even of all Lord Ayyappa temples but only one temple where he is in a state of “eternal celibacy”. The state of naishtika brahmacharya demands strict adherence to discipline that includes staying away from women of a certain age. If the deity has taken a certain vow to be spared the company of women of menstruating age, then that vow must be respected. As this piece in Sawarajya argues, Lord Ayyappa’s vow “is central to his character, his essence. If that breaks, the temple will be desecrated. Moreover, it is his abode and it is his will which the devotees should respect.” It is preposterous to conflate this with right to equality because if a devotee (who is of menstruating age) does not respect the essential character of the deity and refuses to honour the vow that Lord Ayyappa has taken — knowing that the visit will break his vow — then that devotee is visiting the deity less out of faith and more out of a will to exercise political rights. The belief would have otherwise made it incumbent on the “devotee” to understand and respect the nature and character of the deity. It is bad logic to claim that a visit to Sabarimala being made “out of faith towards Lord Ayyappa” when someone does not even believe in his state of celibacy. There are other Ayyappa temples where the deity is not in the state of celibacy and hence there is no bar on women’s entry. Therefore, to conflate the issue of equality and untouchability with practices and customs in one temple is specious logic aimed at distracting from the main issue. Moreover, when the Supreme Court larger bench takes up the debate on essential religious practices, it shall do so in light of the Ayodhya verdict that considers the rights of Lord Ram as a deity. In light of that judgment, if Lord Ayyappa’s rights are recognised in his own abode, t will be interesting to see what conclusion the apex court reaches.