Sabarimala Verdict: Deconstructing the dissenting judgment, one year laterSeptember 27 2019
The lack of concrete jurisprudence regulating the relationship between religion and the law has created an intractable lacuna in the social and legal ethos of India. Although the Supreme Court, through various opinions has helped curb this uncertainty, the ambiguity with respect to the interference of the courts with religion may not be easy to circumvent. One year since the Supreme Court's verdict in the Sabarimala matter, we take a look at various aspects surrounding the issue of balancing religious rights with other rights.
The Essential Religious Practice (ERP) Test, used to determine inviolable aspects of a religion, favours an interventionist attitude by courts. This is because the test enables judges to become prophets and determine what falls within the contours of a religion and what does not. This, in fact is a discretionary test which leads to inconsistent outcomes inasmuch as, it seeks to rationalize religion and purge it of superstitions.
In its pursuit of making a religion free of superstitions, the courts may end up depriving a particular religious denomination of their freedom to observe their religious practices. This is because what may constitute superstition for the courts, may be an ERP for that denomination.
Bearing in mind that Hinduism is often characterized as multicultural and pluralistic, establishing jurisprudence on ERPs which is both uniform and acceptable, may not be a practical approach. Furthermore, there exists no precedent, or jurisprudence whatsoever which regulates the ERPs of the different denominations of a polytheistic religion like Hinduism, thus making the interference argument, at best a slippery slope one.
Against the backdrop of the sole dissenting opinion in the Sabarimala case, we seek to suggest that the social and cultural practices of a community with a clearly “identifiable set of beliefs, customs and usages, and code of conduct which are being practiced since time immemorial, and are founded in a common faith”, cannot be compromised or interfered with on the mere basis of their essentiality, which in turn is a judge-centric approach.
The arbitary nature of the Essential Religious Practice Test
The ERP Doctrine was propounded by the Supreme Court in the Shirur Mutt case, where although the Court said that what constitutes an ERP shall be determined by the tenets of the religion itself, it failed to harmonize this test with the fundamental rights in Part III. This essentially gave rise to the debate as to which right between Article 14 and Article 25 & 26 should be given precedence.
In the case of Sardar Syedna Tahir Saifuddin Saheb v. State of Bombay, it was laid down that fundamental rights under Article 26(b) were not subjected to the preservation of civil rights of an individual, and that excommunication constituted an ERP of the Dawoodi Bohras denomination. However, in contrast, in the case of Acharya Jagadiswaranand Avadhuta vs. Comm. Of Police Calcutta, the Court refused to recognize the tandav of the Anandamargi community as an ERP, the reason, inter alia being the fact that the said practice was a recent one.
The Court has, on numerous occasions, refused to grant the followers of a particular practice, the status of a separate denomination, sometimes on the pretext that such claims were based on superstition. The courts have made the judges assume the role of the prophets, where they get to deliberate on the very existence of certain religious denominations and the essentiality of their practices their beliefs, thus deciding for them, whether their beliefs constitute a religious denomination or merely a philosophy.
Against the backdrop of these court decisions, which demonstrate the risk of inconsistent outcomes, it is our view, that the ERP test needs a substantial overhaul. It should no longer be the job of the courts to regulate and determine the existence of religious denominations or the essentiality of their practices, unless such practices are contemporarily invalid.
Illustratively, the Supreme Court, while imposing a partial ban on fire crackers, in the case of Arjun Gopal v. UOI had laid down, that if a particular religious practice is threatening the health and lives of the people, such practice shall not be entitled to protection under Article 25 of the Constitution. Interlinking the decision of the Court in the above case with the “pernicious and oppressive” practice test laid down by Justice Indu Malhotra in her dissent, we seek to suggest a Contemporary Validity Test (CVT) which would essentially be a two-tier test.
The first test for determining contemporary validity would be a Life Threatening Practice Test (LTP). Using the LTP, the court would determine whether the practice has assumed a life threatening character or not. If it has, the court would be justified in intervening and striking down such a practice. However, if the practice has not attained a life threatening character, the court should look towards the twin tests of public order and morality for establishing contemporary validity.
The rationale for the said test is that while Courts are well placed to determine the contemporary validity of a religious practice, they lack the requisite expertise to determine the essentiality of a religious practice, which should in any event remain the sole prerogative of the religious denomination.
Therefore, in rendering decisions on validity of religious practices, they should adopt a test akin to the CVT rather than the ERP Test. The backdrop of this test emerges from the illustration of Sati, as given by Justice Malhotra, where the interference of the courts was justified, as the practice was considerably affecting the lives of innumerable women at large, and was largely and contemporarily invalid.
In the case of Nikhil Soni v. Union of India it was held by the High Court of Rajasthan, that the practice of Santhārā amounts to a punishable offence under S. 309 & S. 306 of the IPC and does not form part of the ERP of Jainism under Article 25 of the Constitution. This particular practice was of a life threatening character and therefore, the interference of law, in the religious practice of the Jains, was justified. The examples of the cases above are merely indicative of the need to have a CVT, and are not exhaustive in any manner.
Viewing the ban on the entry of women into the Sabarimala Temple through the prism of the CVT, we suggest that Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965, is in no manner contemporarily invalid, as neither does it endanger the life of any individual, nor does it violate public order or morality.
It is pertinent to note here, that the threshold for applying the doctrine of public order needs to be in consonance with the threshold set by the Supreme Court in the case of Shreya Singhal vs Union of India, where the Court said that “mere annoyance could not be elevated to the threshold of disrupting pubic order.”
Thus, in the Sabarimala Case, the interference by the court does not come under any of the contours of the CVT, and therefore the said interference was not justified.
Constitutional Morality vis-a-vis the Contemporary Validity Test
Right to equality and non-discrimination certainly do form the subject matter of constitutional morality, but so does the freedom of an individual to practice their faith in accordance with the tenets of their religion. This brings in an essential question - whether, in matters of religious faith, religious practices and the beliefs of a particular community, can the concepts of equality and non-discrimination or the concepts of religious freedom be viewed in absolute isolation?
While, on the other hand, one of the minority observations concerning Constitutional Morality in the Triple Talaq Judgment was that personal laws have certainly been elevated to the stature of independent fundamental rights under the Constitution of India and thus religious rights under Articles 25 and 26 cannot be tested against Constitutional Morality.
This particular stance of religious rights superseding Constitutional Morality could be attributed to the majority of the judges on the bench. However, it is our view that the essence of Constitutional Morality is not in absolutism, but in harmonious construction. So, what emerges in true essence is the meaning of Constitutional Morality pertaining to harmonization of fundamental rights without giving precedence to one over another.
Moreover, such morality in a secular constitutionality enshrines the liberty of an individual to undertake their religious affairs irrespective of their being rational or not. It not only preserves the sanctity of India as a multi-religious and pluralistic polity, but also further prevents the opening of floodgates challenging other religious practices in the country.
Neither does the Justice Malhotra’s dissent, nor do we advocate for an absolute non-intervention by the courts in the religious affairs of a particular community. We seek to establish that The CVT and the Theory of Transformative Accommodation (as explained later in Parts IV and V) are the essential pillars for ensuring that the essence of Constitutional Morality does not suffer while deciding between individual and religious rights.
Our view here is that, while establishing a stable doctrine on the touchstones of harmonious construction, the court should draw a parallel between the essence of Constitutional Morality and the proposed CVT because evaluating the religious practices on the basis of it establishes a more acceptable gauge and constitutes a consequence that traverses into the real world. Thus, the courts, by reading the concept of CVT into Constitutional Morality, can seek to achieve the objective of harmonious construction, which is quintessential for upholding the tenets of the Constitution.
The theory of Multicultural Accommodation and Vulnerability
The theory of multicultural accommodation refers to the policies and measures by states to facilitate the practices of various identity groups. The object and purpose of multicultural accommodation is to provide these identity groups an opportunity to preserve and maintain their culture and their understanding of the world.
However, the paradox that arises with multicultural accommodation is the problem of multicultural vulnerability. This happens when State policies end up reinforcing power hierarchies between the members of a particular identity group. In the present case, The Kerala Places of Worship Act through its Section 3(b), is an illustrative example of multicultural accommodation trying to preserve the cultural rights of the worshippers of Lord Ayyappa. However, as discussed above, it led to the reinforcement of power hierarchies, between the men and women of the same identity group with regard to the entry into the temple, thus projecting the multicultural vulnerability of the said act.
Accommodating cultural differences without violating individual rights - Joint Governance and Transformative Accommodation.
The question then arises, as to how, in the interest of Constitutional Morality, can the State accommodate cultural differences without violating the hard won individual rights of men and women? Here comes in the theory of joint governance by Ayelet Shachar. The theory “aims to divide the jurisdictional authority between the state and the cultural group.”
The theory of transformative accommodation is a basic tenet of the principle of joint governance. It acknowledges that individuals may form a part of multiple identity groups. It further observes that whenever there is a conflict between cultural and individual rights with respect to a particular social arena, that arena becomes internally divisible into distinct sub-matters, separable, yet complementary to each other.
These sub-matters may include, inter alia, a demarcating function (to be performed by the cultural group) and a distributive function (to be performed by the State) which run parallel to each other, i.e to say that no function has any inherent primacy over the other.
Furthermore, the No Monopoly Rule of transformative accommodation ensures that the State and the cultural group in question are complementary power-holders and neither the State, nor the cultural group have absolute control over the religious practices. Illustratively observing the Sabarimala Case through the prism of transformative accommodation, it can be said that the demarcating functions which would be the prerogative of the cultural group would involve determination of who enters the temple, the membership of the community, ensuring their continuance by protecting the core values of their foundation and the essentiality of their practices, among other things.
Similarly, the distributive functions, which would be the prerogative of the State would inter-alia include, the regulation and prevention of the practices from assuming a life-threatening character and ensuring public policy is maintained, thus keeping a check on the contemporary validity of their practices. “These institutional provisions grant individuals a choice between the jurisdiction of the state and the cultural group,” thus ensuring that cultural differences are accommodated without violating individual rights.
One of the fundamental reasons why the theory of transformative accommodation overcomes the problem of multicultural vulnerability is because it “allows the cultural differences to flourish while creating a catalyst for internal change.” This essentially implies that the jurisdiction to manage the affairs of a community is equally shared between the community and the State (by virtue of the No Monopoly Rule) thus ensuring the “division of power along sub-matter lines within a single social arena.”
The theory is capable of bringing about a revolution, as it would ensure that the courts or the State do not interfere with the demarcating functions of a community, which have the sole prerogative to manage their religious affairs, unless the practice categorically assumes a character which is not contemporarily valid. As for the situation when a practice does assume a life threatening character, the State would have the sole prerogative to regulate it.
Thus, moving from the redundant ERP Test to the twin principles of the CVT and the theory of transformative accommodation could go a long way in laying down the concrete jurisprudence in regulating the relationship between the religion and the law. This could, consequently, ensure a harmonious interpretation of religious and individual rights, and preserve the multicultural ethos of this country.
This article was authored by Tanishk Goyal (West Bengal National University of Juridical Sciences Kolkata), Naman Agarwala (National Law University, Delhi), and Rishabh Singh (Faculty of Law, Allahabad University). An unabridged version of this article was first published at lawschoolpolicyreview.com
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