FR v. FR — Part III: Liberty of Faith v. Right to Equality
By Satya Paul Sabharwal
This paper forms the third part in the series on conflict between fundamental rights. The first part deals with privacy and protests, while the second part deals with waiver of fundamental rights. This third paper will deal with questions of law pertaining to the right to pray which are currently before a 9-Judge Bench of the Supreme Court of India. It will primarily examine Articles 25 and 26 in contrast with Article 14 and assess whether the practices at Sabrimala Temple are constitutionally protected or violate the principle of equality.
Basics of the law
The underlying principle is that equality before the law or equal protection of laws does not mean the same treatment to everyone. It is important to understand that how, no-two humans are equal in all respects. For example: One cannot assess a 3rd grade student and a 10th grade student on the basis of the same mathematics problem. It would be far more prudent, and ‘equal’ if all 3rd grade students are judged as a group while 10th grade students are judged as one. Therefore, the underlying principle of equality is not uniformity of treatment to all in all respects, but rather to give them the same treatment in those respects in which they are similar and different treatment in those respects in which they are different. This concept is called equals must be treated equally and while unequals must be treated differently.
The right to practice one’s religion is a Fundamental Right guaranteed by Part III of the Constitution, without reference to whether religion or the religious practices are rational or not. Religious practices are constitutionally protected under Articles 25 and 26(b).[1] Article 25(1) confers on every individual the right to freely profess, practice and propagate his or her religion.[2] The right of an individual to worship a specific manifestation of the deity, in accordance with the tenets of that faith or shrine, is protected by Article 25(1) of the Constitution. If a person claims to have faith in a certain deity, the same has to be articulated in accordance with the tenets of that faith. Article 25(2)(a) sets out what lies beyond the realm of the state. It cannot enter into the private belief or practice of an individual, but when religion has a political or economic manifestation, it can be regulated by the state.
Article 26 of our Constitution guarantees every religious denomination or a section of it, the right to establish and maintain institutions for religious and charitable purposes and manage its own affairs in matters of religion. Unlike Article 25, which is subject to the other provisions of Part III of the Constitution, Article 26 has a different set of limitations on the rights enjoyed therewith. Thus, it is submitted that the right enjoyed by the ‘denomination’ herein are not subject to Articles 14 or 15 and as they do not cause hinderance to maintenance of law and order or public health, the same must not be made subject to additional limitations.
Recently, the clash between the Right to Equality and the Right to Freedom of Religion was taken-up by the Hon’ble Supreme Court, where the Apex Court on 28th September 2018, permitted women to enter the Sabarimala temple. The verdict was passed with a 4–1 majority where then Chief Justice Dipak Misra, and Justices A. M. Khanwilkar, R. F. Nariman and D. Y. Chandrachud favoured permitting women to enter the temple striking down Rule 3(b) of the Rules 1965, while Justice Indu Malhotra dissented.
Subsequent to the judgement, multiple review petitions were filed. Admitting the review petitions the Apex Court considered framing of certain issues and referring it to a larger bench of Seven Judges. They also considered clubbing of similar issues of different community, as fresh Writ Petitions were filed involving the exclusion of women in their places of worship. Now, the debate about the constitutional validity of practices entailing into restriction of entry of women generally in the place of worship is not limited to this case, but also arises in respect of entry of Muslim women in a Durgah/Mosque as also in relation to Parsi women married to a non-Parsi into the holy fire place of an Agyari. There is yet another seminal issue pending regarding the powers of the constitutional courts to tread on question as to whether a particular practice is essential to a religion or is an integral part of it, in respect of female genital mutilation in Dawoodi Bohra community. Subsequently, a Nine-Judge Bench was set up to hear related matters. While the court reframed certain issues, the final questions of law to be decided are still up to the Court and may be elaborated on when the bench, next sits. That core issues, as reframed, are reproduced below:
1. What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
2. What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?
3. Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?
4. What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?
5. What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?
6. What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution of India?
7. Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by ling a PIL?
Factual Background
Before, getting into the question of law i.e. clash between Article 14 and Articles 25 & 26, it is also important to understand certain facts and history of the pratishtha of the temple and the divine deity.
In Kerala, the Sabarimala Temple, dedicated to Lord Ayyappa, tracks a centuries old tradition and building upon the ‘acharas’, beliefs and customs followed by the Temple, women in the age group of 10 to 50 years are not permitted to enter this Temple. This is attributable to the manifestation of the deity at the Sabarimala Temple which is in the form of a ‘Naishtik Bramhachari’. [One who practices strict penance, and the severest form of celibacy; as Lord was the son of two male Gods i.e. Shiva and Vishnu (as Mohini)]. It is believed that Lord Ayyappa, the presiding deity of Sabarimala had his human sojourn at Pandalam as the son of the King of Pandalam, known by the name of Manikandan, who found him as a radiant faced infant on the banks of the river Pampa, wearing a bead (‘mani’) around his neck. Manikandan’s feats and achievements convinced the King and others of his divine origin. The Lord told the King that he could construct a temple at Sabarimala, north of the holy river Pampa, and install the deity there. The King duly constructed the temple at Sabarimala and dedicated it to Lord Ayyappa. The deity of Lord Ayyappa in Sabarimala Temple was installed in the form of a ‘Naishtik Brahmachari’ i.e. an eternal celibate.
In the instant matter, the Petitioners had prayed for the issuance of a Writ of Mandamus [ordering a person to perform a public or statutory duty] to the State of Kerala, the Travancore Devaswom Board, the Chief Thanthri of Sabarimala Temple and the District Magistrate of Pathanamthitta to ensure that female devotees between the age group of 10 to 50 years are permitted to enter the Sabarimala Temple without any restriction. It was petitioned that this exclusionary practice to restrict female devotees between the age group of 10 to 50 years violates Article 14 as the classification lacks a Constitutional object. The petitioners objected to the customary practice stating that it violates Article 15(1) of the Constitution as it is based on ‘sex’ alone and the practice also further violates Article 15(2)(b) since the Sabarimala Temple is a public place of worship being open and dedicated to the public and is partly funded by the State under Article 290A.[3] The Petitioners had also argued that the exclusion was a form of untouchability which is expressly forbidden in our Constitution under Article 17. In the case of temple entry, social reform preceded the statutory reform, and not the other way about. The discrimination was not caste based, the argument of untouchability, under Article 17 of the Constitution is stretched and unnecessarily petitioned.
For qualifying any case to be an exception under Article 14, it has to pass two-tests. The first, being that of intelligible differentia i.e. discrimination is a sensible one for a good reason and the second test of rational nexus i.e. the connection with the good which is sought to be achieved. The Kerala legislature under Section 4 of the Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965 had framed certain rules on the practice of excluding women of the age group of 10 through to 50 years to enter the temple. Under Section 4, the Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry Rules, 1965 (Rules 1965) was framed stating: “Women at such time during which they are not by custom and usage allowed to enter a place of worship” which was the basis of the practice of excluding women of the age group of 10 through to 50 years to enter the temple. This was upheld by the Kerala High Court in 1993, as its usage prevalent from time immemorial and further opined that the chief priest was empowered to decide on traditions. When we apply the first test of intelligible differentia, it is imperative, that the discrimination is not against all women, but only women between ten and fifty years of age. Applying the second test of rational nexus, we can understand the object of the exclusion that the temple at Sabarimala contains the Naishtik Brahmachari form of the deity.
The intent of the petitioners, just as in any petition and as highlighted in the issues framed by the Honourable Supreme Court, should also be tested herein. One truly dedicated to worship Lord Ayyappa, will also understand the value and sanctity of the Lord in that particular state installed in the temple. The right to equality in matters of religion and religious beliefs has to be viewed in the proper context i.e. adjudging should be amongst the worshippers of a particular religion or shrine, who are aggrieved by certain practices. In such matters, Article 14 should be invoked only by persons who are similarly situated, that is, persons belonging to the same faith, creed, or sect. Though, Petitioners in the case of Sabarimala Temple do not state that they are devotees of Lord Ayyappa, who are aggrieved by the practices followed in the Sabarimala Temple.[4]There are about 1000 temples dedicated to the worship of Lord Ayyappa, where the deity is not in the form of a ‘Naishtik Brahmachari’. In those temples, the mode and manner of worship differs from Sabarimala Temple, since the deity has manifested himself in a different form. There is no similar restriction on the entry of women in the other Temples of Lord Ayyappa, where women of all ages can worship the deity. The form of the deity in any temple is of paramount importance as explained. For instance, Lord Krishna in the temple at Nathdwara is also in the form of a child but the entry of women is not restricted as the deity therein is not associated with a vow of celibacy.
Essential Practices
An important aspect, as also discussed by the court, is whether the exclusion an essential religious practice for the denomination to practice and if it offends public order, morality or health. Courts interfere or intervene in settling of a certain custom/practice being essential or inessential part of a religion. Justice Indu Malhotra while addressing the non-interference of Courts in issues of deep religious faith and sentiments stressed upon far-reaching ramifications and implications, not only for the Sabarimala Temple in Kerala, but for all places of worship of various religions in this country, having their own beliefs, practices, customs and usages, considered to be exclusionary in nature. Furthermore, one way to determine the essential practices test would be with reference to the practices followed since time immemorial, which may have been scripted in the religious texts. If any practice in a particular temple can be traced to antiquity, and is integral to the temple, it must be taken to be an essential religious practice of that temple. Under Article 13(3)(a) of our Constitution, “law” includes custom or usage, and would have the force of law. A practice started in hoary antiquity, and continued since time immemorial without interruption, becomes a usage and custom. The Apex Court in Salekh Chand (Dead) by LRs v. Satya Gupta & Ors.[5] opined that a custom, in order to be binding must derive its force from the fact that by long usage it has obtained the force of law. The characteristics and elements of a valid custom are that it must be of immemorial existence, it must be reasonable, certain and continuous. The customs and usages, religious beliefs and practices as mentioned above are peculiar to the Sabarimala Temple, and have admittedly been followed since centuries.
Article 26
Advocating that there is no-concrete argument of public order, it is basic to apprehend that there is no issue of any sort of riot or any riot like situation on exclusion. Furthermore, on health; there is no form of health risk or suffering produced due to this exclusion. Critically, on morality, one should understand that the exclusion is not offensive, there is no physical or mental harm being caused to any person. Furthermore, there is no absolute restriction on women per se. There is no derogation of the dignity of women. It is only to protect the manifestation and form of the deity, which is considered sacred, and to preserve the penance undertaken by the devotees. In order to preserve the character of the deity, and the sanctity of the idol at the Sabarimala Temple, the limited restriction is imposed. Such practice is consistent with the ‘Nishta’ or ‘Naishtik Buddhi’ of the deity, being the underlying reason behind the custom.
Now, it is fundamental to establish the status of this temple as a religious denomination. The devotees of Lord Ayyappa comprise of a religious denomination, who follow the ‘Ayyappan Dharma’, where all male devotees are called ‘Ayyappans’ and all female devotees below 10 years and above 50 years of age are called ‘Malikapurams’. This set of beliefs and faiths of the ‘Ayyappaswamis’, and the organization of the worshippers of Lord Ayyappa constitute a distinct religious denomination, having distinct practices. Subsequently, it was settled by the judgment of the Division Bench of the Kerala High Court in S. Mahendran v. The Secretary, Travancore Devaswom Board & Ors. (supra). The High Court decided the case after recording both documentary and oral evidence. The then Thanthri, who had installed the deity was examined by the High Court, who stated that women during the age group of 10 to 50 years were prohibited from entering the temple much before the 1950s. The Hon’ble High Court of Kerala concluded by holding:
“Our conclusions are as follows:
(1) The restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial.
(2) Such restriction imposed by the Devaswom Board is not violative of Articles 15, 25 and 26 of the Constitution of India.
(3) Such restriction is also not violative of the provisions of Hindu Place of Public Worship (Authorisation of Entry) Act, 1965 since there is no restriction between one section and another section or between one class and another class among the Hindus in the matter of entry to a Temple whereas the prohibition is only in respect of women of a particular age group and not women as a class.”
As the High Court Judgment in the matter was not challenged by any party, the judgment being a declaration of the status of this temple as a religious denomination, therefore is a judgment in rem. Hence, binding.
To substantiate, the following observation from the judgment of this Court in Dr. Subramanian Swamy v. State of Tamil Nadu & Ors. (supra) can be relied upon:
“The declaration that Dikshitars are religious denomination or section thereof is in fact a declaration of their status and making such declaration is in fact a judgment in rem.”
A Constitution Bench of the Hon’ble Supreme Court in Ratilal Panchand Gandhi Case[6] and similarly, a Seven-Judge Bench of the Hon’ble Supreme Court in the Shirur Mutt Case[7] (inter-alia) held as follows:
“…Any law, which takes away the right of administration altogether from the religious denomination and vests it in any other or secular authority, would amount to violation of the right which is guaranteed by article 26(d) of the Constitution….”
A Division Bench of the Madras High Court in the common judgment reported in 1952 I MLJ 557, construed the word ‘denomination’, denoting to the Webster’s dictionary. In the appeal before the Supreme Court of India, the “Shirur Mutt Case” was heard by a Seven-Judge Bench, wherein the definition of the word denomination was adopted from the Oxford English dictionary, ignoring the cultural and civilization context. The concept of denomination is primarily an Abrahamic concept, wherein one denomination automatically excludes members of another denomination, from their religious institutions including places of worship, even if the other denomination belongs to its own religion.
Under the Hindu faith, members of one “sampradaya”, do not exclude or deny opportunities to worship and participate to those who primarily follow other sampradayas or no sampradayas. Religious sects were already portrayed as denominations by English dictionaries, old and modern. Adding preconditions of “common name, faith and organization” was not just superfluous but also incorrect since only non-Sects required such conditions. This incoherent definition continues to dilute fundamental constitutional rights of Hindu till date. While, seeking to know the precise connotation of the term “religious denomination” and from an Indic purview, Courts should consider the Hindi version of the Constitution where equivalent term given for the word denomination is sampradaya. With respect to this regard one must refer to a decisive Article 394-A. Article 394-A empowers the President, under his authority to publish translation of the Constitution and every amendment thereof in Hindi and it shall have the same meaning [as the authoritative text] for all purposes as the original.
Thus, the consideration by the Nine-Judge bench of the issues stated above, and ancillary issues therein, is a good opportunity for the reconsideration of the question of a ‘denomination’ that has been dealt with in the “Shirur Mutt Case”.
Coda
Thus, on the question of law and issues framed by the nine-Judge bench to review the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India and the scope of the same, the author has postulated that Courts should be extremely careful in crafting out the balance, as the same involves far-reaching ramifications and implications. Furthermore, on other issues framed pertaining to Article 26 being subject to other provisions of the Constitution other than public order, morality and health, it is the author’s proposition that the equality doctrine enshrined under Article 14 does not override the Fundamental Right guaranteed by Article 26 of the Constitution which guarantees the freedom to every religious denomination, or sect thereof, to establish and maintain institutions for religious or charitable purposes, and to manage their own affairs in matters of religion or Article 25 to every individual to freely profess, practice and propagate their faith, in accordance with the tenets of their faith.
Under Article 26, a religious denomination enjoys complete autonomy in matters of deciding what rites and ceremonies are essential according to the tenets of that religion. The right to equality or the equal protection before the law must be applied with an accurate contextual understanding. Even if one may consider that “Ayyappaswamis” do not come under the protection of denomination as defined in the Shirur Mutt Case, they may still be entitled to protection as “any other section thereof” as under Article 26. In such religious matters, Article 14 should be invoked only by persons who are similarly situated, that is, persons belonging to the same faith. To assess the clash, one has to consider the scope of the Article as well as the intent of the party invoking it. The limited restriction imposed is on the exercise of the right being subject to public order, morality and health under Article 26 and should not being subjected to Article 14.[8]
It is submitted that Article 14 cannot be applied by courts in determining equality in matters of religious belief and practices associated with it. Urging the court to do so, will compel the court to undertake a judicial review to determine the rationality and validity of the religious beliefs and practices, which is outside the scope of the court and such a right, as per Article 26(b) of the Constitution of India, lies with the religious community alone.
About the Author
Satya Paul Sabharwal is a fifth-year law student at Amity Law School. He is co-author (with Dr. Subramanian Swamy) of ‘Ayodhya Ram Temple and Hindu Renaissance’ (ISBN 9789388409575).
References
[1] Judgment in Writ Petition (Civil) №373 OF 2006 [Hon’ble Supreme Court] Pg. 361 Paragraph 7.6
[2] H.M. Seervai, Constitutional Law of India: A Critical Commentary, Vol. II (4th Ed., Reprint 1999), at Pg. 1274, para 12.35.
[3] Article 290(a): in the case of a charge on the Consolidated Fund of India, the court or Commission serves any of the separate needs of a State, or the person has served wholly or in part in connection with the affairs of a State;
[4] Judgment in Writ Petition (Civil) №373 OF 2006 [Hon’ble Supreme Court] Pg. 360 Paragraph 7.4
[5] (2008) 13 SCC 119
[6] [AIR 1954 SC 388]
[7] [AIR 1954 SC 282]
[8] Judgment in Writ Petition (Civil) №373 of 2006 [Hon’ble Supreme Court] Pg. 383 Paragraph 12.1
