An Edited Excerpt from the judgment of Indu Malhotra
The issues raised in the present Writ Petition have far-reaching ramifications and implications, not only for the Sabarimala Temple in Kerala, but for all places of worship of various religions in this country, which have their own beliefs, practises, customs and usages, which may be considered to be exclusionary in nature. In a secular polity, issues which are matters of deep religious faith and sentiment, must not ordinarily be interfered with by Courts.
In the past, the Courts, in the context of Hindu temples, have been asked to identify the limits of State action under Articles 25 and 26 on the administration, control and management of the affairs of temples, including the appointment of archakas.
The present case is a PIL filed by an association of lawyers, who have invoked the writ jurisdiction of this Court to review certain practises being followed by the Sabarimala Temple on the grounds of gender discrimination against women during the age-band of 10 to 50 years.
The right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the Petitioners’ personal rights to worship in this Temple have been violated. The Petitioners do not claim to be devotees of the Sabarimala Temple where Lord Ayyappa is believed to have manifested himself as a ‘Naishtik Brahmachari’.
To determine the validity of long-standing religious customs and usages of a sect, at the instance of an association/Intervenors who are “involved in social developmental activities especially activities related to upliftment of women and helping them become aware of their rights”, would require this Court to decide religious questions at the behest of persons who do not subscribe to this faith.
The absence of this bare minimum requirement must not be viewed as a mere technicality, but an essential requirement to maintain a challenge for impugning practises of any religious sect, or denomination. Permitting PILs in religious matters would open the floodgates to interlopers to question religious beliefs and practises, even if the petitioner is not a believer of a particular religion, or a worshipper of a particular shrine. The perils are even graver for religious minorities if such petitions are entertained.
In matters of religion and religious practises, Article 14 can be invoked only by persons who are similarly situated, that is, persons belonging to the same faith, creed, or sect. The Petitioners do not state that they are devotees of Lord Ayyappa, who are aggrieved by the practises followed in the Sabarimala Temple. The right to equality under Article 14 in matters of religion and religious beliefs has to be viewed differently.
If a person claims to have faith in a certain deity, the same has to be articulated in accordance with the tenets of that faith. In the present case, the worshippers of this Temple believe in the manifestation of the deity as a ‘Naishtik Brahmachari’. The devotees of this Temple have not challenged the practises followed by this Temple, based on the essential characteristics of the deity.
The right to practise one’s religion is a Fundamental Right guaranteed by Part III of the Constitution, without reference to whether religion or the religious practises are rational or not. Religious practises are constitutionally protected under Articles 25 and 26(b). Courts normally do not delve into issues of religious practises, especially in the absence of an aggrieved person from that particular religious faith, or sect.
In a pluralistic society comprising of people with diverse faiths, beliefs and traditions, to entertain PILs challenging religious practises followed by any group, sect or denomination, could cause serious damage to the Constitutional and secular fabric of this country.
The Petitioners and Intervenors have contended that the age group of 10 to 50 years is arbitrary, and cannot stand the rigours of Article 14. This submission cannot be accepted, since the prescription of this age-band is the only practical way of ensuring that the limited restriction on the entry of women is adhered to.
The right to gender equality to offer worship to Lord Ayyappa is protected by permitting women of all ages, to visit temples where he has not manifested himself in the form of a ‘Naishtik Brahamachari’, and there is no similar restriction in those temples. It is pertinent to mention that the Respondents, in this context, have submitted that there are over 1000 temples of Lord Ayyappa, where he has manifested in other forms, and this restriction does not apply.
The prayers of the Petitioners if acceded to, in its true effect, amounts to exercising powers of judicial review in determining the validity of religious beliefs and practises, which would be outside the ken of the courts. The issue of what constitutes an essential religious practise is for the religious community to decide.
Article 15 of the Constitution prohibits differential treatment of persons on the ground of ‘sex’ alone. The limited restriction on the entry of women during the notified age-group but in the deep-rooted belief of the worshippers that the deity in the Sabarimala Temple has manifested in the form of a ‘Naishtik Brahmachari’.
The practise of celibacy and austerity is the unique characteristic of the deity in the Sabarimala Temple. Hindu deities have both physical/temporal and philosophical form. The same deity is capable of having different physical and spiritual forms or manifestations. Worship of each of these forms is unique, and not all forms are worshipped by all persons. The form of the deity in any temple is of paramount importance.
Religion is a matter of faith, and religious beliefs are held to be sacred by those who share the same faith. Thought, faith and belief are internal, while expression and worship are external manifestations thereof.
Based on the material adduced before this Court, the Respondents have certainly made out a plausible case that the practise of restricting entry of women between the age group of 10 to 50 years is an essential religious practise of the devotees of Lord Ayyappa at the Sabarimala Temple being followed since time immemorial.
All forms of exclusion would not tantamount to untouchability. Article 17 pertains to untouchability based on caste prejudice. Literally or historically, untouchability was never understood to apply to women as a class. The right asserted by the Petitioners is different from the right asserted by Dalits in the temple entry movement. The restriction on women within a certain age-band, is based upon the historical origin and the beliefs and practises of the Sabarimala Temple.
In the present case, women of the notified age group are allowed entry into all other temples of Lord Ayyappa. The restriction on the entry of women during the notified age group in this Temple is based on the unique characteristic of the deity, and not founded on any social exclusion. The analogy sought to be drawn by comparing the rights of Dalits with reference to entry to temples and women is wholly misconceived and unsustainable.
The right asserted by Dalits was in pursuance of right against systematic social exclusion and for social acceptance per se. In the case of temple entry, social reform preceded the statutory reform, and not the other way about. The social reform was spearheaded by great religious as well as national leaders like Swami Vivekananda and Mahatma Gandhi. The reforms were based upon societal morality, much before Constitutional Morality came into place.
The summary of the aforesaid analysis is as follows:
(i) The Writ Petition does not deserve to be entertained for want of standing. The grievances raised are non-justiciable at the behest of the Petitioners and Intervenors involved herein.
(ii) The equality doctrine enshrined under Article 14 does not override the Fundamental Right guaranteed by Article 25 to every individual to freely profess, practise and propagate their faith, in accordance with the tenets of their religion.
(iii) Constitutional Morality in a secular polity would imply the harmonisation of the Fundamental Rights, which include the right of every individual, religious denomination, or sect, to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practise is rational or logical.
(iv) The Respondents and the Intervenors have made out a plausible case that the Ayyappans or worshippers of the Sabarimala Temple satisfy the requirements of being a religious denomination, or sect thereof, which is entitled to the protection provided by Article 26. This is a mixed question of fact and law which ought to be decided before a competent court of civil jurisdiction.
(v) The limited restriction on the entry of women during the notified age-group does not fall within the purview of Article 17 of the Constitution.
Reference
Indian Young Lawyers Association v. Union of India (2018)