Questioning the Dissenting Voice in the Sabarimala Verdict

On 28 September 2018, Justice Indu Malhotra, the lone woman on a five-judge constitutional bench in the Supreme Court dissented with the 4:1 majority verdict that declared the practice of barring entry for women in the Sabarimala temple between the ages of 10 and 50 unconstitutional.

The Case

The exclusion of women from the Sabarimala temple was sanctioned by the Kerala Hindu Places of Worship (Authorisation of Entry) Act, 1965”. 
Rule 3(b) of the act states that “women who are not by custom and usage allowed to enter a place of public worship, shall not be entitled to enter or offer worship in any place of public worship.” However, this contradicts Section 3 of the same act which states that, places of public worship are to be open to all sections and classes of Hindus. The judgment counters the provisions of this act under Articles 14, 15, 17), 25(1), and 26 of the Indian constitution.
While the four judges expressed their views against this practice by pointing out its inherent gender discrimination, Justice Indu Malhotra countered by arguing that the right to equality cannot override the right to worship. This attracted severe criticism from various quarters.  

Arguments and Counter-arguments

An attempt has been made to review the arguments made by Justice Malhotra in defence of her standpoint.

Article 14 states that the state shall not deny to any person equality before the law on grounds of religion, race, caste, sex, or place of birth. Malhotra argues that this article can be  “invoked only by persons who are similarly situated, that is, persons belonging to the same faith, creed, or sect”; a definition that disqualifies the petitioners because they are conceived of as third-party interveners in this case.

Her argument, therefore, expects people, especially the women belonging to this community, to fight for their own cause. However, the deep internalisation of patriarchal religious values may prevent them from recognising their own forms of oppression. There is also an attempt to relegate this issue to the realm of internal affairs which is exclusively expected to be taken up within the community. Prima facie, it appears that she expects the so called “third party” or petitioners to oversee the issue as mere passive spectators. However, this is not simply a matter pertinent to the community in question. While the temple remains open to all men irrespective of their class, caste, religion or race, it denies access to space to women on grounds of their physiological attributes. This makes it a subject of gender discrimination. Hence, every citizen, regardless of their individual social positions, has the right to question such customary practices that privilege one group while marginalising the other.  

Article 15 (2)(b) asserts that no citizen on grounds of sex can be subject to any disability, liability, restriction or condition with regard to places of public resort. The appeal of the amicus curiae to include the temple as a "place of public resort” is invalidated by Justice Malhotra on grounds that there was a “conscious deletion” of “temples” and “places of worship” by the Constituent Assembly while writing the Indian constitution.

Article 17 abolishes “untouchability” and its practice in any form. Historically, untouchability was never understood to apply to women as a class and was simply understood as untouchability based on caste prejudices. Hence, Justice Malhotra mentions that this particular form of exclusion would not tantamount to untouchability. 

The counter-arguments presented by Justice Malhotra in rejecting the merits of article 15 and 17, come from a restrictive practice of constitutional interpretation through an “originalist approach” that is based on the intent of the framers of the Constitution at the time of drafting the text. Raj (2018) writes that over time, originalism as a method of constitutional interpretation has been subjected to serious criticism while the “living tree” doctrine (the constitution as an evolving and organic instrument) has gained prominence. This calls for a thorough review of traditional institutions like caste and religion through novel approaches. Therefore, the exclusion of women from religious spaces on the grounds of them menstruating is a specific form of untouchability and social segregation. In this case, women belonging to the restricted age group become a caste category in themselves, subordinated by men, within religious dogmas of purity and pollution. Menstruation is viewed as a social taboo which dismantles the ceremonial purity that Ayyappa community tries to preserve. Caste here is not perceived as an individual or a social or cultural group, but rather as a tool of oppression to create a sense of hierarchy between genders. 
Article 25 states that all persons are equally entitled to freely profess, practise and propagate their religion. Over the years, the Supreme Court has developed a doctrine of “essential religious practice” that is protected under this article. Justice Malhotra contradicts the majority judgment and sides with the Travancore Devaswom Board for upholding exclusion of women as an “essential religious practice,” thereby guaranteeing protection to this custom under Article 25. In absence of any scriptural evidence, she solely leaves this determination to the Ayyapan community itself. She further argues that the courts should not delve into the rationality of religious practices or try to determine which practices of a faith are to be struck down, except for the ones which are pernicious, oppressive, or a social evil, like Sati.

Article 26 gives freedom to every religious denomination to establish, maintain and manage its own affairs. As per S P Mittal v Union of India & Ors (1983), a religious denomination must be a collection of individuals who have (i) a common faith; (ii) common organisation; and (iii) designation by a distinctive name. It was contended by petitioners that the devotees of Lord Ayyappa do not constitute a religious denomination as they do not have a common faith, or a distinct name. The devotees are not unified on the basis of some distinct set of practices. Every temple in India has its own different set of rituals. It differs from region to region. In contradiction to this view, Justice Indu Malhotra, taking a “liberal interpretation”, accords the Ayyapans a separate religious denomination. 

Conclusions

All these constitutional rights portray the contradiction between individual and collective faith systems. While premodern societies were governed by traditional religious bodies in public realms, contemporary societies have their own modern forms of governance, such as the state and judiciary which perceive religion as a private affair giving the individuals freedom to choose and practise their faith. This is not to contend that religion as a governing institution has completely disappeared or that its influence in social, economic or political domains has decreased in impact. Religion has morphed into different configurations in modern societies and hence we need more holistic approaches to comprehend its complexities. 
Justice Malhotra’s understanding of the “essentiality” of religious practices in Ayyappa community is flawed, because it is not formulated in isolation, but is influenced by patriarchal structures which establish an ideological hegemony within the religious group. The rationality of any religion or a particular ritual is mostly determined and propagated by the male leaders and members in the group. In order to perpetuate their domination, they tend to devise customs, often by the irresponsible interpretation of traditional texts, which consequently results in the subordination of women. 

Further, her argument around demolishing certain social “evils,” while accepting others as “essential,” hierarchises violence and justifies it. Until a woman is burnt alive or experiences violence which is as “severe” as Sati, she is expected to endure other “inferior” forms of violence. 

Justice Malhotra sets a dangerous precedent by stating that courts should not delve into the rationality of religious practices. One should not forget that if it were not for the judiciary’s activism, the rigid societal structures would have still clawed on to the unbending orthodoxy.  A prerequisite of this judgment, however, would have been to find ways to sensitise the community and garner support from the Ayyappans themselves.