DESPITE its syncretic genesis as a temple devoted to the god considered to be a son of Lord Shiva and the female avatar of Vishnu (Mohini), the Sabarimala temple is better known for the protracted litigation on the issue of the customary denial of access to women between the ages of 10 to 50. The prohibition is justified on mythological grounds as the deity is considered to be a practicing celibate by conviction (Naishthic Brahamachari) and therefore the devotees (both male and female) defend the tradition of exclusion of young women from entering the temple as an essential and integral part of the Ayyapaa denomination. The critics/reformers see this exclusion as reinstatement of the long-standing stereotype of women as agents of contamination. The age group 10 to 50 years is indeed a way to exclude women who are menstruating and thus are seen as impure/polluted.¹

The customary restriction on the entry of women took the shape of a formal rule 3(b) framed by the Devaswom Board under Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965. The Kerala Hindu Places of Worship (Authorisation of Entry) Act, 1965 was enacted following the constitutional mandate to ‘throw open’ Hindu temples of public character to all sections of Hindus.² While Section 3 of the act authorized entry into the temple of all sections/classes of Hindus, rule 3(b) of the rules framed under the enactment carved out an exception to Section 3 by banning the entry of women falling in the age group of 10 to 50 years.³

One cannot miss the irony of the executive order banning women issued under a law which was aimed at authorizing entry to Hindu temples. Such a paradoxical rule was given a lease of legitimacy by the High Court of Kerala in 1993 through its judgement⁴ which upheld rule 3(b) on the technical and unconvincing grounds that ‘the prohibition is only in respect of women of a particular age group and not women as a class.’⁵ The court also endorsed the customary practice and the denominational claim of the sect to ‘manage their own affairs’ under Article 26(b) of the Constitution. In 2017, a three judge bench of the Supreme Court heard the appeal against the judgement of the High Court of Kerala and referred the issue to be decided by a constitutional bench.⁶ This led to the formation of the larger bench to decide upon the Sabarimala controversy.

 

In 2018, the constitutional bench of the Supreme Court overruled the Kerala High Court decision and by majority (4-1) declared rule 3(b) as unconstitutional and allowed the entry of women inside the temple of Lord Ayyapaa. Indian Young Lawyer’s Association & Others v. State of Kerala & Other⁷ has been celebrated as a key feminist judgement delivered by the Supreme Court in the year 2018.⁸ Arguing that it is easy to miss the pitfalls of ‘progressive’ decisions due to the rhetorical charm of some of the reasoning and eventual conclusions reached by courts, this essay seeks to, through a careful and close reading of this case, uncover the faultlines in the legal reasoning adopted by the court to arrive at its conclusions and claims that it might not be a progressive judgement at all.

The focus is on two points raised by the majority decision which have implications for the future understanding of religious freedom under the Indian Constitution: one, the expansion of Article 17 (hitherto limited to caste based exclusions) to also include within its fold the exclusion of women from temple entry; and two, the discourse of constitutional morality, which promises a constitutionalism that would transform the landscape of Indian law and its relation with community practices, especially when the question is to decide upon what constitutes essential practices of religion.

The judgement of Justice Chandrachud is the key text as he has engaged with the above questions at length and also because his opinion is articulate and purporting to deal with important issues concerning feminism and gender justice. I would argue that the implications of his decision, if taken seriously, are counterproductive and contradictory in relation to the intended outcome of feminist justice: counterproductive as the judgement fails to notice the prospect of over-criminalization inherent in the expansive interpretation of Article 17, and contradictory to the extent that Justice Chandrachud relies on constitutional morality (which is inherently anti-majoritarian) but simultaneously endorses community sentiment (as he aligns himself with the scholarship on doctrine of essential practices that provides, despite pretensions to the contrary, too much latitude to the community in the determination of the essence of a religion).

 

Hitherto the meaning of ‘untouchability’ under Article 17 of the Constitution has been understood as limited to caste untouchability. This is how the courts have interpreted the parenthesis or inverted commas used for the term ‘untouchability’ under Article 17 specifying the historically specific nature of caste exclusion. Justice Chandrachud with his emphasis on the terms ‘in any form’ under Article 17⁹ interprets it broadly to include the exclusion of women in Sabarimala.¹⁰ In his own words: ‘The addition of the words "in any form" in the initial draft prepared by the Sub-Committee on Fundamental Rights is [an] unambiguous statement to the effect that the draftspersons wanted to give the term "untouchability" a broad scope’ (emphasis in original). He refuses to read the parenthesis as ‘circumscribe [ing] the constitutional width of the expression.’¹¹ Historically, this anti-discrimination provision of the Constitution is referred to and used analogically to combat and reject the exclusionary practices of religious communities.¹² However, the expansion of the provision in unambiguous and categorical terms beyond caste discrimination is unprecedented.

 

What are the implications of such a broad reading of Article 17 and applying it to all classes of women denied entry to place of worship on biological grounds? Justice Chandrachud focuses on the abolition of untouchability ‘in any form’ but what he overlooks is that the provision also mandates that it ‘shall be an offence punishable in accordance with law.’¹³ The implications of a broader interpretation of Article 17 would mean the creation of fresh punishable offences for all such exclusions. This would necessarily amount to over-criminalization, compelling the state to use its repressive apparatus to outlaw all such exclusions.¹⁴ This would be a call for un-freedom for women entailing the strengthening of the security regime and state paternalism with aggressive criminal law measures governing gender and aligning feminist demands as only attainable through a stricter surveillance regime.

Janet Halley has warned against such feminist alliances with stricter security measures leading to what she describes as ‘governance feminism’, encouraging a call for repressive state machinery and aligning it with feminist human rights advocacy.¹⁵ For these reasons, the collapsing of all forms of discrimination within Article 17 is a misplaced and confused understanding of the constitutional struggle against combating discrimination.

 

It is one thing to use Article 17 as an analogical device to better understand constitutional aspirations, but it is quite another matter to literally expand its ambit to all classes of women excluded from entering places of worship. After all, it certainly is an attainable task to fight against patriarchy and the discriminatory exclusion of women on biologically essentialist grounds; a literal expansion and application of Article 17 is not required to achieve this purpose. Without clearly appreciating the dangerous repercussions, such an expansion borders on populist pronouncements based on rhetorical, supposedly feminist, proposals which would eventually be counterproductive to a progressive feminist struggle.

 

One of the issues that the Sabarimala case had to wrestle with concerned the Doctrine of Essential Practices (or the Essential Practices Test). The majority judges declared that the practice of excluding women from the Ayyapaa temple is not an essential practice of the sect. The dissenting opinion left the matter as beyond judicial review, allowing the concerned community to have the last word, declaring that ‘what constitutes an essential religious practice is for the religious community to decide.’¹⁶ The only exception when judicial intervention is considered legitimate by the dissent is when such practices are ‘pernicious, oppressive, or a social evil, like Sati.’¹⁷

In the majority opinion of the court, Justice Chandrachud was the only judge who, despite concluding that the practice of women’s exclusion is not an essential practice, makes a move towards the eventual abandonment of the doctrine of essential practices, advocating for a ‘close look […] in an appropriate case in the future.’¹⁸ For Justice Chandrachud, the secular court needs to restrain itself from deciding upon a matter of faith. He categorically points out:

‘By entering upon doctrinal issues of what does or does not constitute an essential part of religion, the court has, as a necessary consequence, been required to adopt a religious mantle. The court would determine as to whether a practice is or is not an essential part of religion. This has enabled the court to adopt a reformist vision of religion even though it may conflict with the views held by the religion and by those who practice and profess the faith.’¹⁹

The community view should be decisive in matters of religion and the judicial review should limit itself only, according to Justice Chandrachud, to issues where there is an exclusionary practice observed by the community. This ‘anti-exclusion principle’ becomes the only exception where courts ideally should interfere with matters of religion.

 

The irony of this posture in the opinion of Justice Chandrachud becomes clear at least at three levels. One, his opinion itself is a testament that ‘exclusion’ cannot be understood as any exclusion in simplistic terms. After all, he takes pains to elucidate that in the Sabarimala case the nature of exclusion is such that it is comparable to caste exclusion and it reinforces the stereotype of menstruating women as contaminating beings or agents of pollution and impurity. One is tempted to ask how is the ‘anti-exclusion principle’, as it is applied in the Sabarimala case by Justice Chandrachud, fundamentally different from the practice being ‘pernicious, oppressive or a social evil’ as suggested by the dissenting Justice Indu Malhotra? Differently put, the transformative prescription for future constitutional jurisprudence by Justice Chandrachud does not seem, on a closer look, radically different from the problematic formula put forth by Justice Indu Malhotra for limited judicial review in favour of due deference to the religious community.²⁰ Indeed, following the argument in the second section, it appears that for Justice Chadrachud such exclusions deserve immediate criminalization by the state machinery which might in itself be pernicious on some feminist registers.

 

Two, there seems to be a paradox in the simultaneous evocation of the elevated notion of ‘constitutional morality’ which forms the cornerstone of Justice Chandrachud’s opinion, couched as it is in terms of ‘autonomy’ and the ‘dignity of individual’ and his deference to the community opinion for determination of essential aspects of religion. Even eventual relinquishment of the doctrine of essential practices would leave the issue to the community, allowing secular judges to wash their hands off matters of faith.

Third, the court deviates into a taxonomical fallacy by assuming that the category of ‘community’ is monolithic and not polyvocal. It is as if the metaphorical wheel of law has come full circle as deference to the community to decide upon matters of religion was the position taken by the Supreme Court in the initial years of the inauguration of the doctrine of essential practices.

The origin of the doctrine dates back to 1954 of the Supreme Court in The Commissioner of Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Sirur Muth.²¹ A seven judge bench of the court declared certain provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951 which empowered the state officials’ administrative and financial control over a religious establishment (Mutt) as unconstitutional as they intruded upon ‘integral parts of religion’ (emphasis mine). The Supreme Court both in this and a later case²² observed, on the grounds that the court is a secular court, that it must show normative deference to the community in determination of essential practices. The court observed that no ‘outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the state to restrict or prohibit them in any manner.’²³

 

It was the later decision of Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan²⁴ (1964) where the Supreme Court acknowledged the perspectival limitations of the previous decisions which gave latitude to the community to determine what is essential to religion. In the famous and oft-cited passage, the court, speaking through Justice Gajendragadkar, observed:

‘This formula may in some cases present difficulties in its operation. In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices the court may not be able to resolve the dispute by a blind application of the formula that the community decides which practice is an integral part of its religion, because the community may speak with more than one voice and the formula would, therefore, break down.’²⁵

 

This passage, in categorical terms, poses a critique, coming from within the judicial narrative, of the fictional category of ‘community’ discursively invested in by the judicial discourse as something to which we have transparent access. It exposes the fact that behind the secular posture of judicial deference to matters of faith exists a denial. The denial is of the fact that there is no one religious community but communities and practices which are often mutually contradictory and marked by contestation. Such denial produces the construction of an imagined ‘community’ as a monolithic entity.

Understood in this fashion, the court insists on evidence based on affidavits to decide upon what is integral is an attempt to engage with the polyvocal community and decide, within its limited capacity, which voice is worthy of constitutional protection.²⁶ Such an effort cannot provide a ready-to-offer-formula to dissolve the muck of religious affairs. In contemporary times or indeed at any point, one cannot relegate the issue of religion to community alone. There is an incessant need to engage with the contested voices that constitute community in constitutional and public discourse.²⁷

Undoubtedly, such efforts can deviate into the donning of a theocratic mantle by the court, as the judicial effort may meander into tricky terrain, or worse, lead to unimaginable failures. However, sometimes it is the discomfort of failure that may create new possibilities, an endeavour toward a constitutional morality constituted by confronting contradictions in the articulations of community.

 

In the context of Sabarimala, how would one read the foregrounding of the conviction of celibacy of Lord Ayyapaa and a simultaneous insistence on forceful exclusion of women by the Ayyapaa devotees? Doesn’t the fear that the presence of young women would threaten the Lords’ conviction of celibacy end up making a mockery of celibacy demonstrating the fragility of God’s vow of celibacy which can be kept only by ensuring the absence of women around him? Isn’t this the projection of one’s own psychic vulnerabilities on one’s Gods? Further, has prayer become the performance of patriarchal sociality couching itself in the sanctity of the Lord’s celibacy to disavow the perverse underside of misogyny forming the cornerstone of institutionalized religion?

Jacqueline Rose, in her reading of Freud’s Moses and Monotheism says that ‘there is no sociality without violence, that people are most powerfully and effectively united by what they agree to hate. What binds the people to each other and to their God is that they killed him.’²⁸ How would voices which might attempt to salvage the deity from the patriarchal stranglehold find a place if there is no engagement of secular courts with the religious traditions in the contradictions of their own ‘logics’?

 

By contrast, Justice Chandrachud’s opinion in the Sabarimala case, after contradictorily claiming the practice unconstitutional in its morality, takes recourse to the longstanding and more enduring fantasy of deference to a community which has no complexity or contradiction. In suggesting this as a hope for the future, he unconsciously slides into the past with the only exception/addition of an ‘anti-exclusion principle’ to the old formula. The fragility of hope in the simplicity of an anti-exclusion principle is self-evident.

It may further be asked if there was no egregious narcissism in the judiciary’s determination of what is exclusionary from the high mountain top of constitutional morality shutting its eyes to the cosmologies of those upon whom they adjudicate. Would it not be preferable to dirty one’s hands, put one’s head into the religious quagmire, than to wash religion off, even as one nods to a flattened (and most often hegemonic) version of it? After all, the idea of constitutional morality originates from a man who is known for his unfettered engagement with contradictions and relentlessly remembered for his speech in the Constituent Assembly about the entry of the Indian republic into the life of contradictions.

 

* The author would like to thank Ashley Tellis for his meticulous reading of the first draft and useful suggestions. He would also like to thank the students of JGLS with whom he was able to discuss the ideas presented in this paper.

Footnotes:

1. More precisely, the issue of menstruation arises as the devotees are required to observe a fast (vratham) for forty days before, on their way to visit the deity. Since this period would be marked by the days of monthly menstruation for women, their exclusion is considered appropriate.

2. Section 3 of the act under which Dewaswom Board issued the rule of exclusion in categorical terms reads: ‘no Hindu of whatsoever section or class shall, in any manner, be prevented, obstructed or discouraged from entering […] or from worshipping or offering prayers thereat, or performing religious service therein…’

3. The rule was framed under Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965.

4. S. Mahendran v. The Secretary, Travancore Devaswom Board (AIR 1993 Ker 42).

5. Id. The question remains that why would women of a particular age group not constitute a class in themselves?

6. See, Indian Young Lawyers Association v. State of Kerala (2017) 10 SCC 689.

7. Writ Petition (Civil) No. 373 of 2006 decided on 28 September 2018. Hereafter, Sabarimala case.

8. Joseph Shine v. Union of India, (2018) SCC SC 1676 is another important decision which declared Section 497 of IPC as unconstitutional. For a critical analysis of legal reasoning of this case, see, Latika Vashist, ‘Joseph Shine v. Union of India’, ILI Newsletter 20 (3), July-September 2018, pp. 23-24.

9. ‘Article 17 – Abolition of Untouchability: Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of Untouchability shall be an offence punishable in accordance with law’ (emphasis added).

10. Sabarimala case, Justice Chandrachud para 72.

11. Id., para 79. The dissenting opinion preferring an alternative reading of the same provision rejected the application of Article 17 to women as in her understanding ‘Article 17 pertains to untouchability based on caste prejudice. Literally or historically, untouchability was never understood to apply to women as a class.’ Justice Indu Malhotra (para 14.2).

12. For instance, the Supreme Court referred to Article 17 in the case of Sri Venkataramana Devaru v. State of Mysore (AIR 1958 SC 255) where a sect of Gowra Brahmins claimed to bypass the provisions of Madras Temple Entry Authorisation Act, 1947; Justice Sinha in his dissenting opinion in Saifuddin Saheb v. State of Bombay (AIR 1962 SC 853).

13. Article 17, Constitution of India, see note 9.

14. This would be a compulsive mandate for the state as Article 17 is a fundamental right of criminalization claimed against the state which in turn is under a duty to punish practices of exclusion under Article 17. Upendra Baxi has elaborated on the unique nature of Article 17 describing it as ‘constitutional criminal law’ which is uniquely placed under the chapter of fundamental rights. See, Upendra Baxi, ‘Emancipation as Justice: Babasaheb Ambedkar’s Legacy and Vision’, in K.I. Vibhute (ed.), Dr. Ambedkar and Empowerment: Constitutional Vicissitudes. University of Poona Press, Pune, 1993.

15. Janet Halley, ‘Introduction to Governance Feminism’, in Janet Halley, Prabha Kotiswaran et al. (eds.), in Governance Feminism: An Introduction. University of Minneapolis Press, 2018.

16. Sabarimala case, Para 8.6 Justice Indu Malhotra (Dissenting opinion).

17. Id., para 8.2.

18. Sabarimala case, para 112.

19. Id., para 108.

20. Justice Indu Malhotra’s dissent is fraught with faulty legal reasoning (relying on the textual hierarchy of denominational right over the individual’s right to practice religion due to the non-subjection of Article 26 to ‘other provisions’ of Part III) and a regressive reading of the Constitution. She denies ‘standing’ to the petitioners on the ground that they are interveners who are ‘gender rights activists working in and around the state of Punjab […] that they learnt of the practice of restricting the entry of women…from three newspaper articles…’ (para 1). Such a conception to deny standing to North Indian lawyers makes the phenomenon of Social Action Litigation (SAL) redundant which permits any public-spirited litigant to approach a court of law. Further, this understanding endorses a regressive model of identity politics where one is only permitted to speak if one shares an identity or experience.

21. AIR 1954 SC 282.

22. Ratilal Panachand Gandhi v State of Bombay(1954) 17 SCJ 480.

23. Ibid.

24. AIR 1963 SC 1638.

25. Id., para 57.

26. In its effort, the court, through its tiresome engagement with the complex web of mythology and history woven around the religious sect declared, inter alia, that the management of the property was a purely secular practice/affair and thus could not seek protection under the constitutional freedom of religion. In doing so, the court succeeded in unmasking the grim fact that behind the claim of free exercise of religion was the claim for temple property, which the court declared is not the private property of the high priest. The materiality behind the claim couched in terms of the right to religion is usefully deciphered with an engagement with religious tenets in this case.

27. Margaret Davis in her insightful feminist critique of the standard liberal notion of western secularism argues for engagement with the religious in public discourse. She raises the concern that by ‘excluding religion from political discourse…we also silence those who would challenge dominant interpretations of their faith…’ In her view, the exclusion of the sacred from politics is both ‘undemocratic’ and ‘unfruitful’ as it delegitimizes the possibilities of dissenting voices proposing alternative readings of the sacred and reinstates the dominant orthodox view as the only possible viewpoint. See, Margaret Davies, ‘The Future of Secularism: A Critique’ in Nadirsyah Hosen and Richard Mohr (eds.), Law and Religion in Public Life. Routledge, Abingdon, 2011. pp. 52-66.

28. Jacqueline Rose, ‘Response to Edward Said’, in E. Said and J. Rose (eds.), Freud and the Non-European. Verso, NY, 2004.