It has been a year since the momentous Sabarimala judgement (Indian Young Lawyers' Association v. State of Kerala) was pronounced on 28.09.2018 by a Constitution Bench comprising of former Chief Justice Dipak Misra, and Justices Rohinton Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra.
By a majority of 4:1, Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 was struck down on the grounds of infringement of Articles 15, 25 and 26 of the Constitution of India. The impugned Rule called for the barring of the entry of women between the ages of 10 to 50 years to the Sabarimala Ayyappa temple in Kerala on the basis of the celibate nature of the deity.
The importance of the judgement is rooted in its transcendental nature as it navigates through multiple Fundamental Rights enshrined in the Constitution of India. A bold attempt was made by the Supreme Court of India to adapt the principle of harmonious construction in the propagation of a religion and the equality of genders. By applying the concept of Constitutional Morality, the Apex Court has rendered a decision with far-reaching consequences for the advancement of gender justice and has upheld dynamic morality in the face of religious diktats.
Article 14 of the Constitution of India entails equality before law and equal protection from law. Article 15 prohibits discrimination on the grounds of religion, race, caste, sex or place of birth. Prima facie, any discrimination by law which places a man on a pedestal, without any intelligible differentia, is discriminatory and violative of both the Articles.
Poulain de la Barre, a seventeenth-century feminist had stated, "Everything men have written about women should be viewed with suspicion because they are both judge and party". Similarly, "customs and usages" which tend to cause reinforcement of hierarchies based on biological differences are merely tools to further ingrain the secondary position that has been relegated to a woman. In "The Second Sex", Simone de Beauvoir had aptly emphasized how "lawmakers, priests, philosophers, writers and scholars have gone to great lengths to prove that women's subordinate condition was willed in heaven and profitable on earth. Religions forged by men reflect this will for domination: they found ammunition in the legends of Eve and Pandora."
In light of de Beauvoir's statement, the cause of gender justice must not be treaded lightly and social reforms for its furtherance must take long strides in order to fell and remedy centuries-old constructs which discriminate against women; constructs which prevent women from entering the public space; constructs which have implanted such exclusionary practices in the minds of general as the unhindered norm.
In a country like India, religious codes mirror patriarchal notions in society, which in turn are invoked to validate subjugation of women. The mere existence of Goddesses does not obliterate the subordinate position that is arrogated to a woman in India. The menstrual taboo is still prevalent in the modern society. Women in contemporary households are subjected to the superstition that a menstruating woman should not and does not have the right to enter the area of worship. Despite generations of education, the belief remains and refuses to be shaken. Taking into account these factors, the judgment holds seminal importance, because of its potential to stir one's mind to question and discard internalized taboos.
The laws of men can no longer be allowed to rule the lives of women. The Sabarimala judgement holds religious diktats to the standard of morality that pervades the Constitution of India, and herein lies its importance.
The Apex Court's juxtaposition of freedom to practice religion with gender equality has been rendered through the prism of Constitutional Morality. Therefore, the term "morality" present in both Articles 25 and 26 has been said to be construed to mean the morality as propounded by the Constitution. The concept of "Constitutional Morality" has been deemed to mean constructing and interpreting legislations in consonance with the ever-changing character of the Constitution. The Constitution is perceived to be a living, breathing document which molds itself according to the sands of time, and the morality propagated by this document must adapt and overcome the challenges that are regurgitated by society over a period of time.
In the case of Manoj Narula v. Union of India (2014), it was held that "Constitutional Morality is not a natural sentiment. It has to be cultivated. We must realize that our people are yet to learn it." The case went on to state that "the principle of Constitutional Morality basically means to bow down to the norms of the Constitution and not act in a manner which would become violative of the rule of law or reflectible of action in an arbitrary manner." Similar lines have been evoked in the cases of Navtej Singh Johar v. Union of India and GNCTD v. Union of India. Therefore, the duty has been cast upon the judicial courts so as to interpret legislations as per Constitutional Morality. The element of the judge's subjectivity does tend to creep in, however, it is the burden one must bear in order to bridge the chasm between faith and rationality.
Justice Chandrachud aptly states that "what meaning should be ascribed to the content of the expression 'morality' is a matter of constitutional moment". Popular opinions cannot dictate this morality as the very purpose of the concept is to achieve "a sense of equilibrium, a balance, so that read individually and together the provisions of the Constitution exist in contemporaneous accord." In light of the same, the Sabarimala judgment upholds Constitutional Morality in the face of pressure exerted by alleged essential practices and paves the way for tearing down of similar discriminatory practices in the name of religion.
This would mean that the mere aspect of "custom and usage" cannot be cited in order to allow a certain discriminatory practice to continue. The deity being a "Naishtik Brahmachari" cannot be the reason a woman is restrained from exercising her right to practice a religion under Article 25 of the Constitution. It is akin to placing the burden of a man's celibacy on the woman; that she should conduct herself in a certain manner so as to not elicit the male gaze or provoke illicit advances.
SCOPE AND CONCLUSION
The subsequent riots post the pronouncement of the judgement have rendered the effect of the judgement almost nugatory. Men as well as women have resisted its implementation by blocking access of women to the temple. Fifty or so Review Petitions and multiple Applications have been filed before the Apex Court on the lines of the dissenting opinion of Justice Malhotra. On January 2, two females - Bindu and Kanaka Durga - entered the temple exercising their right declared by the Supreme Court. This led to huge furore, creating a riot like situation in the state. A 'purification ceremony' was held in the temple, apparently to offset the effects of 'pollution' caused by entry of these women. This gives validation to the view expressed by Justice Chandrachud in the judgment that the ban on women entry has hues of Untouchability which is prohibited under Article 17 of the Constitution of India.
Justice D.Y. Chandrachud had interpreted and expanded the scope of "untouchability" in the judgement by including any practice which amounted to "systemic humiliation, exclusion and subjugation faced by women." He considered such social exclusion to be an anathema to constitutional values.
It is safe to say that the social conditioning of the propagators of the religion are so deeply entrenched that they are unable to decipher their own subjugation and are justifying it on the grounds of the basic tenets of practicing their faith. One must realize that the judgement is not an attack on faith; it is merely an attack on the discriminatory practices embroiled in the faith. Rationality and Faith do not need to be two concepts which are perpetually divorced from each other. A confluence of the two may exist as long as the individual rights are not harmed whilst their functioning. One must unlearn and fight the propaganda spewed by the Faith which is a mere device to cripple the proper integration of women in a man's world.
The Supreme Court of India has, therefore, done a splendid job in recognizing this propaganda and in promoting the dynamic and transformative nature of the Constitution in consonance with the dynamic nature of society. While it is true there exists no categorical doctrine of hierarchy of rights, however, at the end of the day, no section of the society must face grievance and discrimination due to physiological attributes that are not under their control. The harmonious construction of two Fundamental Rights must give way to the one which prevents daylight discrimination.
The unwelcome reaction of the majority to the judgment shows that mere declaration of rights by the Supreme Court will have little effect when the populace does not wish to move forward. However, the push is very much required and the Sabarimala judgment is a mere step towards the changing of such constructs, and hopefully the ushering in of inclusive religious practices.
Discrimination of any form cannot exist in the name of multiculturalism and pluralism. As former Chief Justice Dipak Misra stated, "The subversion and repression of women under the garb of biological or physiological factors cannot be given the seal of legitimacy." Let us hope in the years to come, the ideals upheld in the Sabarimala judgement reverberate and percolate through other such religious practices and allow for the abandoning of exclusionary principles by affirming equality, dignity and respect for all.
(Author is a lawyer practicing at Delhi)
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]