Justice Indu Malhotra’s dissenting opinion [in the Sabarimala case] sets up a crucial constitutional question: How do you reconcile the Constitution’s commitment to pluralism – which entails respect for group autonomy – with the claims of equality and non-discrimination addressed from within those groups? It is this question that is at the heart of Justice Chandrachud’s concurring opinion.
Chandrachud J sets up the issue in the introductory part of his judgment, where he observes that the Indian Constitution is transformative in two distinct ways. First, in setting up the governing institutions of an independent republic, transitioning from colonial rule, but also “placing those who were denuded of their human rights before the advent of the Constitution – whether in the veneer of caste, patriarchy or otherwise – … in control of their own destinies by the assurance of the equal protection of law”. The reference to caste and patriarchy is important, because it acknowledges that discrimination is not limited to State action, or even to hostile individual action, but that it also flows from institutional design.
Caste and patriarchy are neither “State” nor an agglomeration of individual acts, where you can attribute discriminatory agency to identifiable individuals. They are social institutions. And because they are social institutions, their impact on the lives of the people that they touch is not merely a private matter.
In paragraph 5, therefore, Chandrachud J observes:
Essentially, the significance of this case lies in the issues which it poses to the adjudicatory role of this Court in defining the boundaries of religion in a dialogue about our public spaces. The use of the word “public spaces” is crucial, especially when you juxtapose it with Malhotra J’s dissenting opinion, which we discussed previously. Recall that for Malhotra J, there was a distinction between a “social evil” such as Sati – where a court could potentially intervene – and a case such as Sabarimala, where the challenge was based on irrationality or immorality. It is this public/private binary – social evil (public) and bare immorality (private) – that Chandrachud J rejects, by framing the issue as about access to public spaces.
It is within this framework that Chandrachud J begins his substantive analysis.
After surveying the body of precedent concerning the Essential Religious Practice test – and also noting the shift from “essentially religious” to “essential religious” – Chandrachud J’s judgment has a section titled “The Engagement of Essential Religious Practices with Constitutional Values”. At the threshold, Chandrachud J finds that the respondents have failed to establish that the exclusion of women from Sabarimala is either an obligatory part of religion or has been consistently practised over the years. The evidence, at best, demonstrates the celibate nature of Lord Ayappa, but this in itself does not establish that the exclusion of women is part of ERP.
However, apart from the traditional and straightforward analysis of whether or not a religious claim amounts to an essential religious practice, Chandrachud J also advances an important alternative argument – that “the test of essentiality is infused with … necessary limitations” (paragraph 50), which are grounded in constitutional morality and the constitutional values of dignity and freedom. So, in paragraph 55, Chandrachud J notes:
The Respondents submitted that the deity at Sabarimala is in the form of a Naishtika Brahmacharya: Lord Ayyappa is celibate. It was submitted that since celibacy is the foremost requirement for all the followers, women between the ages of ten and fifty must not be allowed in Sabarimala. There is an assumption here, which cannot stand constitutional scrutiny. The assumption in such a claim is that a deviation from the celibacy and austerity observed by the followers would be caused by the presence of women. Such a claim cannot be sustained as a constitutionally sustainable argument. Its effect is to impose the burden of a man’s celibacy on a woman and construct her as a cause for deviation from celibacy. This is then employed to deny access to spaces to which women are equally entitled. To suggest that women cannot keep the Vratham is to stigmatise them and stereotype them as being weak and lesser human beings. A constitutional court such as this one, must refuse to recognise such claims [paragraph 55].
As a piece of discrimination law reasoning, this is, of course, impeccable. But there is something more at work here, which I want to highlight. Chandrachud J’s observation that the effect of the celibacy argument “is to impose the burden of a man’s celibacy on a woman” is the crucial link between the denial of the right to worship (which Malhotra J, in her dissent, regards as a private, internal matter to religion) and the public aspect of this case. What Chandrachud J recognises is that the justification offered to exclude women is an integral part of a far broader discourse that is founded on the exclusion and subordination of women in social and community life.
This becomes clear two paragraphs down, where he discusses the stigma around menstruation (another justification that was advanced by the respondents), and observes:
The stigma around menstruation has been built up around traditional beliefs in the impurity of menstruating women. They have no place in a constitutional order. These beliefs have been The Sabarimala Judgment – III 79 used to shackle women, to deny them equal entitlements and subject them to the dictates of a patriarchal order [paragraph 57].
The phrase “patriarchal order” is an important one. It indicates that the exclusion of women from Sabarimala is not simply – as Malhotra J would have it – a unique and particular feature of that specific religious community and something that can be isolated from the broader world around it. Rather, the exclusion of women from Sabarimala on the grounds of celibacy and menstruation is one among countless ways in which patriarchy – as a social institution – works to keep women in a position of subordination.
Justice Malhotra and Justice Chandrachud, therefore, come at the issue from opposite angles. What Malhotra J sees as a claim requiring that religion be subordinated to the diktats of morality, Chandrachud J understands as a challenge to one manifestation of patriarchal subordination itself. According to Chandrachud J, you cannot divide social life into different silos and say that discrimination and subordination are fine as long as they stay within a defined silo. At least as far as religion and society are concerned, in the context of India, the silos are forever merged. As Alladi Krishnaswamy Iyer, a prominent member of the Indian constituent assembly, said in the Constitutional Drafting Committee, “There is no religious question that is not also a social question.”
Excerpted with permission from Unsealed Covers: A Decade of the Constitution, the Courts and the State, Gautam Bhatia, HarperCollins India.