A Constitution bench of the Supreme Court is currently hearing petitions challenging a custom in the Sabarimala temple in Kerala that prohibits women in the age group of 10 to 50 from entering the shrine.

The petitioners have argued that this custom patently violates equality guaranteed under the Constitution as it is prejudiced against women and their right to worship. The lawyers have also invoked Article 17 of the Constitution that prohibits untouchability. The restrictions placed on women are based on the concept of pollution, which is similar to the caste prejudice that Dalits face in rituals and worship.

Last week, observations made by the bench suggested that it was inclined to uphold the rights of women to worship at the temple. “In a public place of worship, a woman can enter, where a man can go,” Chief Justice of India Dipak Misra had said. Connecting a woman’s right to worship to her menstrual cycle is unreasonable, the bench noted.

However, one small exchange in the court brought to the fore a problematic stand the judiciary took decades ago while dealing with the position of customs and personal laws in the Constitutional scheme. When senior lawyer Indira Jaising, representing the petitioners, mentioned the 1951 Bombay High Court judgment in The State Of Bombay vs Narasu Appa Mali, Justice Rohinton Nariman was quick to respond that the case was not under consideration in the current proceedings. In its judgment outlawing the practice of triple talaq among Muslims last year, the Supreme Court had observed that this judgment should be reconsidered when the appropriate case comes up.

In Narasu Appa Mali, the Bombay High Court ruled that personal laws cannot be set aside even if they were in violation of fundamental rights. In doing so, the court kept personal laws beyond Article 13 of the Constitution, which states that all laws in force in the country when the Constitution was adopted shall become void if it derogated fundamental rights.

This judgment is not the only one that stands out as an example of the inconsistency on part of the judiciary in dealing with customs and tradition. In 2016, a Supreme Court bench upheld a discriminatory custom that allowed only a particular denomination of people to become priests in Tamil Nadu temples, making the argument that the restriction was not caste based. In doing so, the Supreme Court disregarded the form the custom has taken in practice, which is blatantly casteist.

Personal laws and the Constitution

The Narasu Appa Mali case pertained to a petition moved by a Hindu man who was convicted under the anti-bigamy law. Narasu Appa Mali argued that prohibition of bigamy was enforced only for Hindus and did not apply to Muslims. This was blatantly discriminatory and violated the concept of equality before law. he said. Therefore, he petitioned the court to set aside the law.

In dealing with this case, the Bombay High Court had to interpret Article 13 of the Constitution and whether personal laws came under its ambit.

Article 13 (3) says:

“13. Laws inconsistent with or in derogation of the fundamental rights: 

(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.”  

Article 13 included “all laws in force” during the adoption of the Constitution. But does the expression “all laws in force” include customs and usage with religious foundations? The Bombay High Court answered in the negative and said:

“There is no doubt that laws which are included in this expression must have been passed or made by a Legislature or other competent authority, and unless this test is satisfied it would not be legitimate to include in this expression the personal laws merely on the ground that they are administered by Courts in India.

“It is well-known that the personal laws do not derive their validity on the ground that they have been passed or made by a Legislature or other competent authority in the territory of India. The foundational sources of both the Hindu and the Mahomedan laws are their respective scriptural texts. ” 

This meant that customs and usage in personal laws not enacted by the legislature or a competent authority was beyond the purview of Article 13 and need not respect fundamental rights.

In 1979, the Supreme Court went one step further. In Sri Krishna Singh vs Mathura Ahir and Others, when dealing with the question of whether a member of the Shudra community could enter an ascetic order when custom prohibited it, the apex court took the side of the custom. The court, while disagreeing with the position taken by the High Court that had heard the case previously, said:

“It would be convenient, at the outset, to deal with the view expressed by the High Court that the strict rule enjoined by the Smriti writers as a result of which Sudras were considered to be incapable of entering the order of yati or sanyasi, has ceased to be valid because of the fundamental rights guaranteed under Part III of the Constitution. In our opinion, the learned Judge failed to appreciate that Part III of the Constitution does not touch upon the personal laws of the parties. In applying the personal laws of the parties, he could not introduce his own concepts of modern times but should have enforced the law as derived from recognised and authoritative sources of Hindu law.”

Thus, not only is the Bombay High Court judgment of 1951 still in force judicially, the Supreme Court has also concurred with its findings in one of its own judgments, giving regressive practices in the name of religion and custom legal protection.

Protection to religious practices

Apart from the fact that personal laws have been given protection from the breadth of Article 13, two other crucial Constitutional provisions protect religious practices. While Article 25 provides the fundamental right to freedom of conscience and the freedom to profess, practice and propagate one’s religion, Article 26 provides the right to every religious group to establish and maintain institutions for religious and charitable purposes, manage its affairs, properties as per the law. All three provisions together have been the main defence provided by religious groups against state intrusion into their affairs.

Two cases on the same subject stand out though they did not invoke the Narasu Appa Mali case.

In 1970, the Dravida Munnetra Kazhagam government in Tamil Nadu allowed all persons with the necessary qualifications, irrespective of their caste background, to become priests in Agama temples. Traditionally, only Brahmins have been priests in such temples. Almost every major temple in Tamil Nadu is governed by the Agamas, a collection of scriptures relating to vital areas of Hindu life, including the conventions of temple building, philosophical precepts and temple rituals, which protect the purity of the deity.

A Constitution bench of the Supreme Court struck down the law in 1972. The argument was that the eligibility for a priest was not caste but membership in a particular denomination, for example, men belonging to a particular lineage or gotra. This argument was repeated in 2015 to nullify an identical reform that Tamil Nadu’s DMK government initiated in 2006. Curiously, the court in 2015 resisted from striking down the government order which provided for non-Brahmin persons to become priests. But it simultaneously upheld the Agamas’ writ over priest appointments.

In the 2015 judgment written by Justice Ranjan Gogoi, the court reiterated that all laws should respect fundamental rights. But it upheld the religious rights of a particular denomination of people as it did not see a caste-based discrimination in the Agamas. However, this judgment clearly disregarded ground realities as hardly any non-Brahmin has been appointed as a priest in Agama temples between 1972 and 2015. A caste-based eligibility was sustained in these temples in the garb of gotra or other such concepts. Even two years after the 2015 judgment, Tamil Nadu is yet to see a non-Brahmin priest appointed in major Agama temples.

In its 1972 judgment, the court refused to accept arguments of untouchability in the priest appointment process and said:

“Any State action which permits the defilement or pollution of the image by the touch of an Archaka [priest] not authorised by the Agamas would violently interfere with the religious faith and practices of the Hindu worshipper in a vital respect, and would, therefore, be prima facie invalid under Article 25(1) of the Constitution.” 

In other words, the court held that following the Agamas was an essential practice that was important for the survival of the religion itself. The court also did not go into the question of gender equality and whether Agamas allow women to become priests.

Sabarimala case

In the Sabarimala case currently in progress before a Constitution bench, similar arguments of pollution have been made. Keeping menstruating women from the sanctum sanctorum was essential to avoid pollution of the temple, the argument goes. This is essential to maintain its sanctity and by extension religion itself.

While the Supreme Court seems to be in favour of opening the temple to menstruating women, the matter does not end with this particular case. The court has again shown reluctance to deal with Narasu Appa Mali head on, despite the fact that the Sabarimala case presents the best opportunity for it to strike the 1951 judgment down. Instead of just declaring the custom as not essential to religion, the court needs to ask if customs, even if they are essential to religion, could undermine equality.

If the larger goal of the court is to strengthen equality before law, it is important that judgments like Narasu Appa Mali are expressly overturned so that those backing regressive practices curtailing gender and other rights do not take refuge in the protection they provide.