Sabarimala Case: Would a differently framed question have resulted in a different Judgment?

Karthik Sundaram

The decision of the Supreme Court in Indian Young Lawyers Association & Ors v. the State of Kerala and Ors (‘the Sabarimala case), while indeed path-breaking in terms of constitutional jurisprudence, raises some important questions which require debate and discussion.

This article seeks to confine itself to one such issue which is the interpretation of Article 25(1) of the Constitution which deals with the ‘Freedom of conscience and free profession, practice and propagation of religion’.

As per the law declared by the Supreme Court, the right under Article 25 in the first place exists only in respect of the ‘essential part of religion’. Let us now see how this ‘essential part of religion test’, has been applied in the context of the Sabarimala case. On this issue, the question which was referred to the larger bench of the Supreme Court by a three-judge bench of the Supreme Court for a decision was:

“2. Whether the practice of excluding such women constitutes an “essential religious practice” under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?”

The fundamental question which the author seeks to raise and address is whether the correct question has been framed and answered. Is the issue one of right to regulate entry into Hindu temples or one of exclusion of women? Is the exclusion of women from the Sabarimala temple an ‘essential religious practice’ in itself or is it only a consequence of the right of Hindus to regulate entry into Hindu temples?

Since the fundamental right of the worshipper exists only in respect of the ‘essential part of religion’, this determination was necessitated to even determine whether the alleged practice of exclusion was based on any corresponding fundamental right of the worshippers under Article 25 of the Constitution. The conclusions by the majority as well as the minority, on this issue, are summated below:

Since the ‘essential part of religion’ test applies to Hindu religion as a whole, let us test this issue in the context of hard facts and actual practices. When we look at the Hindu religion as a whole, there are more than 20 lakh temples and the issue which concerns us and the issue which was before the Court was the practice of 1 temple out of the more than 20 lakh odd Hindu temples. Even if we assume that the number of temples which exclude the entry of women between ages 10 and 50 are 100 in number, the exclusion in pure statistical terms would be less than 0.00005%.

Let us take the case of temples dedicated to Lord Ayyappa himself. The minority judgment recognizes that there are more than 1000 such temples and the restriction on entry of women between ages 10 and 50 is only in Sabarimala temple where the deity is in the form of Naisthik Brahmachari and not in other temples where the deity of Lord Ayyappa is in a different form.

Even in such a case, the exclusion from the entry in statistical terms is less than 0.001%. The statistical analysis leads to the conclusion that there is no general practice of discrimination against women of a certain age group in Hindu religion in the context of entry into temples.

The PIL filed by the ‘Indian Young Lawyers Association’ itself accepts that discrimination against women, in general, is not a practice in Hindu religion. The averments in paragraph 8 and Ground K are reproduced below so as to get a more complete understanding of the case of the Petitioner:

“That it is humbly submitted that discrimination in matters of entry to Temples is neither a ritual nor a ceremony associated with Hindu religion. The Hindu religion does [not] discriminate against women. Rather on the other hand, as per Hindu religion women are at higher pedestal in comparison to men. Such discrimination is totally anti-Hindu. However, the Kerala High Court in S. Mahendran case (supra) has held this ban as an integral part of religion. ….”.
…
K. BECAUSE it is not a feature of Hindu religious practice to bar women from taking part in religious ceremonies. Rather banning their entry amounts to anti-Hindu custom not permissible in Hindu religion. In Hindu religion, women are allowed to offer prayers and worship at temples irrespective of whether they are menstruating or not”.

(Emphasis supplied)

This in itself, clearly shows that the case of the Petitioner is not one as regards discrimination against women in Hindu religion as a whole but one confined to alleged discrimination as regards the right of entry into one temple – the Sabarimala temple.

The Court would have been definitely right in framing the question it did and answering it, if the issue of restriction of women between ages 10 and 15 or menstruating women, was a widespread restriction in Hindu religion across temples, but that is not the case nor was it the case of the Petitioner.

Let us, therefore, address the issue from a slightly different perspective. If one looks at the central issue, it is only one as regards the restriction of entry of women of a certain age group into one temple and not across all Hindu temples as a whole.

Also, if one looks at the 1955 and 1956 notifications issued by the Travancore Devaswom Board, the notifications only state that in accordance with past traditions, Ayyappans who do not observe the usual Vrithams are prohibited from entering the temple by stepping the Pathinettampadi and women between the ages of ten and fifty are forbidden from entering the temple. The restriction with respect to women of a certain age group was subsequently also sought to be enforced by Rule 3 of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules 1965. This legislation also deals with the issue of ‘entry into temples’.

It is well known that the Hindu religion has innumerable deities and correspondingly temples, and that the practices of each temple are influenced by the governing deity and beliefs of worshippers. Given this and the fact that the determination of the ‘essential practice of religion’ is at the level of the Hindu religion as a whole as opposed to the practices in one Hindu temple, in my respectful view, the actual issue which arose for consideration was:

“Under the ceremonial law pertaining to temples, whether who are entitled to enter into them for worship and how the worship is to be conducted are ‘essential parts of Hindu religion’”.

This in my view is the correct question which was to be addressed given that there is no general or widespread restriction on menstruating women or women between ages 10 to 50 entering Hindu temples.

In Sri Venkataramana Devaru v State of Mysore, Venkatarama Aiyar J., after reviewing ancient literature, the practice of Hindus, and the role of temples in that practice concluded on behalf of the Court that:

“18…Thus, under the ceremonial law pertaining to temples, who are entitled to enter into them for worship and where they are entitled to stand and worship and how the worship is to be conducted are all matters of religion. The conclusion is also implicit in Article 25 which after declaring that all persons are entitled freely to profess, practise and propagate religion, enacts that this should not affect the operation of any law throwing open Hindu religious institutions of a public character to all classes and sections of Hindus. We have dealt with this question at some length in view of the argument of the learned Solicitor-General that exclusion of persons from temple has not been shown to be a matter of religion with reference to the tenets of Hinduism. ...”

(Emphasis supplied)

Therefore, if the question had been differently framed in the Sabarimala case as the issue essentially deals only with the right of entry into a particular temple, the answer could have possibly been very different.

The exclusion of women of a certain age group into the Sabarimala temple is not an essential practice of religion but only the consequence of an essential practice of the Hindu religion – which is the right to determine who are entitled to enter into temples for worship and how the worship is conducted.

Also, the observations in the Sabarimala case would essentially mean that Hindu temples do not have the right to regulate who are permitted to enter such Hindu temples which is contrary to the observations made in the Sri Venkataramana Devaru case.

Given the number of Hindu temples and the diversity in beliefs, it is my humble opinion that the Court practically cannot and ideally should not get into such issues at a temple level but only be concerned with practices at a more general level. If the question is addressed as a general question related to the right to regulate entry into Hindu temples, then the decision of the Supreme Court in the Sri Venkataramana Devaru case addresses all these questions.

However, if the ‘essential part of religion test’ is to be applied to each of these practices at a temple level rather than as a part of the larger issue of entry into temples, then the Courts will be saddled with litigation and will have to deal with the customs and practices of the individual temples/deities which ideally is not the function of the Courts.

Given that there are more than 20 lakh Hindu temples, even if issues such as these arise in say 10,000 temples which statistically speaking is only 0.005% (approx.) of the number of temples, the Courts will be flooded with litigation. Such microscopic interference at a temple level also has the potential to destroy the plurality and diversity of Hindu religion.

Since, the essential part of the Hindu religion is only as regards who is permitted to enter a temple and how the worship is to be conducted, the tests of public order, morality and health, and the other fundamental rights should have been applied to this right under Article 25 and not to the question as framed by the Court.

The exclusion of women between ages 10 to 50 into the Sabarimala temple is a consequence of the essential right under Hindu religion to regulate entry into temples. The restrictions under Article 25 should have been tested against the right and not against the consequence of the right.

To conclude, I can only but quote J Krishnamurthi:

“To ask the ‘right’ question is far more important than to receive the answer. The solution of a problem lies in the understanding of the problem; the answer is not outside the problem, it is in the problem.”

About the Author: Advocate Karthik Sundaram is an advocate practising at the Madras High Court.

Disclaimer: The views expressed in this article are of the author and Bar & Bench does not necessarily hold the same views. Bar & Bench does not take responsibility for the same.