Seen from a purely legal perspective, the Sabarimala case (Indian Young Lawyers Association v Union of India) could have been decided on a very simple and straightforward point of law: is the rule prohibiting entry of women into the Ayyappa temple at Sabarimala contrary to the Kerala temple entry law?
Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, expressly prohibits women between the age of 10 and 50 from entering the Sabarimala temple. However, Section 5 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, permits every Hindu to enter a public temple unhindered. A rule made by the government under a law cannot be contrary to the main law itself. There is no provision under the Kerala temple entry act that permits the government to restrict any class of Hindus from entering a public temple. Therefore, the rule prohibiting the entry of women should have been struck down as illegal and women allowed entry into the temple.
Standing in the way of this somewhat straightforward legal conclusion were two things: a bizarre judgement of the Kerala High Court dating back to 1991 which had upheld this rule, and a Kerala government that could not make up its mind whether it was for or against temple entry for women. The Kerala High Court judgement was not appealed to the Supreme Court and had become final. There was a danger that if the Kerala government firmly opposed women’s entry into the temple, they might just amend the temple entry law to prohibit it. To address all this, and more, perhaps it made sense for the Supreme Court to place its eventual judgement on the level of fundamental rights under the Constitution.
Once again, four opinions were delivered by the exact same four judges who delivered the opinions in the judgements striking down Section 377 of the Indian Penal Code to legalise homosexuality and Section 497 to decriminalise adultery. However, this time there were only two other concurring judgements and surprisingly, one dissent – from Justice Indu Malhotra, the only woman on the bench. The three judgements by Chief Justice Dipak Misra, and Justices Rohinton Nariman and DY Chandrachud respectively hew to more or less the same set of arguments. That the Ayyappa temple on Sabarimala is not a denominational temple and open to all Hindus. That the right to practice one’s religion does not extend to indulging in discriminatory practices against women. That the right to religion means equal right to practice religion and discriminatory treatment against women demeans them and cannot be protected through law, and that the Kerala government had no power to make a rule excluding women to the Ayyappa temple.
Justice Indu Malhotra’s dissenting opinion however hinges on the claim that “Ayyappans” or devotees of Ayyappa are a distinct religious group or sect from Hindus. The basis for this is somewhat difficult to assess – a government notification that refers to devotees as “Ayyappans” is relied upon and the fact that Ayyappa worshippers follow certain practices. The first is a somewhat dubious reading since nowhere in the notification does it relate to whether Ayyappa worshippers are separate from all other Hindus in any way. If the second test is applied across the board, it means that there is no such thing as the Hindu religion.
This is also an incorrect way of reading the constitutional protection for denominations (under Article 26) since this would mean that the temple was only for those who belonged to this particular “sect”, when there’s nothing on record to suggest as such. Malhotra then contradicts herself immediately by saying that identifying a sect is a matter of fact and law, and should have been done by a civil court, but still uses her identification of a separate sect as the basis for holding that it is not a public temple for the purposes of the Kerala temple entry law.
A wider problem
Just as problematic is her interpretation of what constitutes “untouchability” for the purposes of Article 17 of the Constitution. Malhotra contends that untouchability only refers to caste-based untouchability when there is nothing in the text of the Constitution which says so. She then bases her claim on history in an incoherent way. While no one denies that untouchability in Article 17 refers to Dalit experiences of untouchability, there is no authority to hold that it refers solely to that. That untouchability was a much wider problem (not even just a Hindu problem) and affected women, especially widows and menstruating women.
Malhotra’s interpretation of “untouchability” is not only unsupported by history or the text of the Constitution, but is a mean-minded one that looks to deny the benefits of a liberal constitutional framework to a wider population – an approach starkly at odds with her empathetic judgement in Navtej Johar v Union of India. Malhotra’s dissenting judgement reminds one of then Chief Justice JS Khehar’s atrocious minority judgement upholding triple talaq as constitutional and valid –
at once managing to be wrong on the law and the facts of the matter.
That said, the path of reconciling religious practices with constitutional rights has never been an easy one, not just in India but around the world. There will perhaps never be a perfect approach to the same as long as religion matters to people and as long as it remains a tool to control people and their bodies. Progress will be slow and steady, but with the Sabarimala judgement, the Supreme Court has taken a step in the right direction.
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