Kanu Agrawal

The hearing in the Sabarimala case is drawing to a close and if media reports are to be believed, the Court seems to be keen on taking an interventionist approach. This interventionist approach restricting the freedom of religion has always been a Constitutionally contentious issue.

Article 25 of the Constitution provides for freedom of conscience and the right to profess, practice and propagate religion subject to public order, morality and health, and also to the other provisions of Part III (fundamental rights).

Article 26 confers on every religious denomination the right to manage their own affairs in matters of religion and administer properties as per the law. To supplant the interventionist approach, the phrase ‘in the matters of religion’ has been interpreted by the courts in a restrictive and linear fashion, resulting in a doctrine often referred to by scholars as the ‘theory of the essentiality‘ emanating from the Shirur Mutt case.

‘Essentiality‘, by its very semantics, limits religious freedoms only to matters, which the Court considers to be essential to the practice of the religion/denomination. While this may seem to be an ecclesiastical function, the Court thinks of it as a constitutional necessity.

The duty of the Court is limited to examining if the restriction on the entry of the women would form an essential tenet of the Sabarimala Temple due to the special nature of its deity and the traditions surrounding the Temple. If the said restriction is covered under this expanse of ‘essentiality‘, the remaining exercise is redundant.

To the contrary, it seems that the Court has been invited to travel beyond this limited scope and conduct a rationality review of religious beliefs. This rationality review of denominational rights of temples under Article 26 is circumspect, as the freedoms under Article 25 are subject to the other provisions of Part III of the Constitution (rationality review).

But the framers consciously omitted the said proviso from Article 26. Unfortunately, the Indian Courts have consistently treated Articles 25 and 26 at par, overlooking the significance of this omission.

Be that as it may, to meet the requirement of the rationality review, the landscape of shrines in Kerala must be looked at. It is said that shrine worship in Kerala is conducted mainly in four places, denoting every stage of Hindu life. In Sabarimala, the deity is in the adolescent form observing Brahmacharya, which literally means the pursuit of Brahma/knowledge (often confused with celibacy). The austerities associated with the visit to Sabarimala Temple are necessary before the pilgrimage.

In a reductionist sense, the only reason for the restriction on entry is the inability of menstruating women to complete the austerities with the same rigour, as their bodies undergo physiological changes during the said time. It is alleged that because of the nature of austerities, there is an indirect discrimination against women on the basis of their sex.

It is urged that because menstruation is perceived to be ‘impure’, the presence of women is debarred from the Temple. The petitioners and the Amicus in the Supreme Court have also linked this to be similar to the discrimination against Dalits in the Devaru case.

While this may seem appealing on the first brush, a deeper analysis leaves this argument falling short of any Constitutional standard. Apart from the fact that the testing such austerities/traditions on the touchstone of standard fundamental rights is wholly impermissible, it is also difficult to sustain that the Sabarimala shrine seeks to per se, discriminate against women. It must be noted that women are not completely debarred from the pilgrimage, but only certain aspects of it for a limited period of their lives.

Further, every devotee who believes in the concept/energy behind the Sabarimala Temple would be devoted and bound by the denominational austerities sans any rationality review. It must also be noted that menstruation is not synonymous with impurity in numerous Hindu traditions. For instance, there are celebrations in many local cultures on the first occurrence of menstrual cycles. The blood stained clothes are worshipped in the Chengannur Mahadeva temple. The menstrual periods are worshipped in the Kamakhya temple. The Sabarimala austerities do not attach any sense of impurity to it.

Otherwise, the Courts must recognize that differentiation on such grounds, considering the complexity of the temples in the region, may not necessarily lead to discrimination as mentioned in the language of Article 25(2)(b). For instance, the other denominational deities like the ones at the Attukal Temple and the Chakkulathukavu Temple, both of which provide special status to women and differentiate.

Therefore, the limited question that the courts need to answer must be, whether the said entry of women contravenes the essential feature of celibacy/Brahmacharya of the deity. The misunderstanding on this issue is created because of the absence of understanding of the different nature of every denominational temple and seeing them in a Western/Abrahamic prism.

The courts ought to be intellectually sensitive towards the vast expanse of the Hindu fold and the many counterbalancing and overlapping forces acting within the macro-religious construct of the various denominations. The expression of religious freedoms is not limited to an inward belief in theological values but extends to the outward expression and practice of such beliefs.

To limit the same would be a constitutional delusion. Faith and rationality have had multiple encounters in history and it would be unwise for the Court to play the arbiter in every situation.

Kanu Agrawal is an advocate at the Supreme Court of India.

The views expressed above are of the author and do not necessarily reflect the views of Bar & Bench.