Analysis of the Essential Religious Practice Test Vis-a-Vis, The Sabarimala Judgement
On 28th September 2018, the Supreme Court by a 4:1 majority struck down Rule 3(b) of the Kerala Hindu Places of Worship (Authorization of Entry Act), 1965 by virtue of which a ban was imposed on women between the ages of 10 to 50 years from entering the Lord Ayyappa Temple at Sabarimala in Kerala. The practice was termed as “unconstitutional” and as a form of “untouchability” within the meaning of Article 17 by Justice Dr D.Y. Chandrachud. The majority judgment was delivered by CJI Dipak Mishra and Justice A.M. Khanwilkar while, Justice. R.F. Nariman and Justice Dr. D.Y. Chandrachud wrote separate concurring opinions. The only woman judge on the Bench, Justice Indu Malhotra, gave a dissenting opinion.
The judgement brought back into light a very disputed and controversial part of jurisprudence-the essential religious practice test. The doctrine has developed in three judgments of the Supreme Court. The Doctrine was originally conceived in the The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Thirtha Swamiyar of Shri Shirur Mutt[i]or popularly known as The Shirur Matt case. In Sri Venkataramana Devaru v. State of Mysore[ii], the Court laid down a crucial precedent which marked a shift in judicial approach wherein the Court’s role became determinative in determining whether a practice qualified as essential. Thus, the test of determining what is ‘essentially religious’ (as distinct from the secular) became conflated with ‘essential to religion.’ In Dargah Committee, Ajmer v.Syed Hussain Ali[iii], the Court stated that a distinction had to be drawn between practices essential and integral to a religion vis-à-vis practices though religious but which have sprung from merely superstitious beliefs. Thus, the protection of Art.25 and Art.26 was confined to only such religious practices which were essential and integral to the religion in the light of the aforesaid formulations. Sixty-four years later, this doctrine was again addressed in in the The Indian Young Lawyers Association &Ors . v. the State of Kerala and Ors[iv]by the Supreme Court.
The PIL was filed by The Indian Young Lawyers Association on the main issue that whether the complete exclusion of women (aged 10-50) based on a biological phenomenon from the temple, constituted as an essential part of religion or as in this case, Hinduism.
The essential religious practice test means that any religious practices that are so ‘essential’ to a religion or form the basis of a religion, will fall within the protection of Article 25 and 26 and should be protected as such. Any other activities related to it with the exceptions to those already mentioned in the Constitution will be covered in the exceptions to the right to religion.
Moving on to determining whether the practice of denying women of certain age groups their right to worship can be regarded as an essential part of Hindu religion or is it equivalent to any doctrine of the religion. There is no scriptural or textual evidence that supports this discriminatory practice. Therefore, the practice of barring women from entering the temple cannot be accorded the status of an essential religious practice of the Hindu religion. As a matter of fact, it is an essential aspect of the Hindu religion to allow Hindu women to enter a temple as devotees and followers of Hindu religion and offer their prayers to the deity.
Former Chief Justice of India, Dipak Mishra along with J. AM Khanwilkar concluded that the practice of banning women from entering the temple is not an essential part of Hinduism, instead, that allowing women devotes in the temple is an essential part of the religion. It was also concluded that the Ayyappas do not constitute as a religious domination.
Justice DY Chandrachud decided that the ban was because it was felt that the presence of women would disturb celibacy, and that was placing burden of men’s celibacy on women which in turn stigmatizes and stereotypes women.
RF Nariman held that “anything destructive of individuality is anachronistic of Constitutionality. To treat women as lesser people blinks at the Constitution itself”.
The only woman judge, J. Indu Malhotra, dissented in her opinion and maintained that the issue concerns deep religious sentiments that the court should not interfere in unless there is any aggrieved person from that section or religion. She held that notions of rationality should not be seen in matters of religion and that the shrine and the deity areprotected by the Article 25 of the Constitution. Her dissent is justifiable on many counts. One of them being that she is completely correct when she says that practices that are “pernicious, oppressive, or a social evil” can be subjected to judicial review.
Justice Indu Malhotra and Justice Chandrachud form completely different opinions on this issue. While Justice Malhotra considers it to be a claim requiring religion to be subordinated to the diktats of morality, Justice Chandrachud sees it as challenge to one manifestation of patriarchal subordination. According to him, one cannot divide social life into different silos and say that discrimination and subjugation are valid as long as they remain within the boundaries of those defined silos because in the Indian context, silos concerning religion and society will always be merged.
Moving beyond the ERP Test
In conclusion, the apex court held that the Constitution of India prohibits exclusion of any community or section of people from places of worship and that constitutional values would prevail over religious practices. The judgement demonstrates that exclusion of women does restrict freedom and dignity and is thus, legally invalid. Justice Chandrachud seeks to show how this single event of exclusion is ‘nestedin an entire social and institutional order that is characterized by hierarchy, subordination, and exclusion’. Justice Chandrachud went on to say that the Constitution is not bound by any religious practices. While it was widely contested whether the court had the mandate to interpret religious practices, the judges held that irrespective of a religious practice being essential or not, the constitutional values will and should prevail over essential and certain aspects of religion.
[i]The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Thirtha Swamiyar of Shri Shirur Mutt,1954 AIR 282, 1954 SCR 1005.
[ii]Sri Venkataramana Devaru v. State of Mysore,1958 AIR 255, 1958 SCR 895
[iii]Dargah Committee, Ajmer v. Syed Hussain Ali,1961 AIR 1402, 1962 SCR (1) 383
[iv]The Indian Young Lawyers Association & Ors . v. the State of Kerala and Ors,
By Vineet Gupta, Executive Editor and Anjali Mehrotra, Research Assistant