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Sabarimala Issue - It is NOT About Personal Freedom

A Constitutional Perspective

· religion,Sabarimala,Personal Freedom

Feminists, leftists, atheists and non-believers are again up in arms against the customs at Sabarimala. At this juncture, it is important to understand what is the basic issue addressed here. This is important because there is an attempt to mix non-issues in the current controversy. So, this is an attempt to counter one such non-issue.

Regulation of women of a certain age group in Sabarimala is NOT an issue of personal freedom or freedom of choice of the individual as some groups are trying to paint it to be. Article 14 and 15 of the Indian Constitution relates to personal freedom and protection against discrimination to every citizen. However, these provisions are not applicable as a blanket rule in the case of Sabarimala.

Art. 25 vs Art 14, 15

The provisions of personal freedom and non-discrimination based on religion or gender in Articles 14 and 15 of the Constitution aren’t applicable to religious worship and religious institutions as they are protected by Article 25 of the Constitution.

The right to organised worship in any religion inherently involves exclusion of certain members of society. The exclusion of non-Hindus from temples, non-Christians from Churches, non-Muslims from Mosques or non-believers from a place worship in general would be rendered unconstitutional if one were to go by a facial reading of Articles 14 and 15 as in a literal sense Article 15 states that, “the State shall not discriminate against any citizen on grounds only of religion, sex,…” and Article 14 states that “the State shall not deny to any person equality before the law…”.

However, such distinctions are actively promoted in the Constitution under Article 25. So, testing of any religious laws on the touchstone of Articles 14 and 15 will be like testing the constitutional provisions against each other rather than understanding it as a harmonious construction that limits the scope the Articles 14,15 with Article 25, 29 and 30.

The unique rituals and customs of different temples are not merely abstract or random constructs. They are valuable religious rights of the worshippers of that temple. For example, at the Srinath Temple at Nathdwara, the songs of only one dasji or devotee can be sung, as per the Pushtimarg tradition. In the Ranganathswamy Temple in Srirangam, particular pasurams or Tamil hymns are mandatorily sung as per the Srivaishnavite tradition. Yet these temples are sacred to devotees from all over the country and not just that region. Both temples have Vishnu as the deity but and devotees worship Lord Vishnu with equal respect at both places. But a Srivaishnavite won’t demand their hymns to be sung at Srinath Temple or a Pushtimargi doesn’t demand that the bhajans of his tradition is sung at Sri Ranganathswamy Temple. That is the mutual respect accorded by the different sects despite the diversity in their customs.

In the case of Kerala, men don’t file cases to fight for entry to Attukal or Chakkulathukulangara. But they also workship the devi but from home or at other temples.

Irrespective of the protection granted to religious institutions and customs under Article 25, it must also be noted that our constitution is egalitarian in spirit but discriminatory against Hindu community in its provisions in many ways. One part will say such laws will apply only to Hindus (including Sikhs, etc), and another says some laws will not apply to others. It professes idealistic positions on matters involving one community (read, Hindu) and grants exceptions when it involves other communities (read, Christian & Muslim). R. Jagannathan cited many examples of this situation in an article earlier this year on Firstpost website. They were:

  1. Civil laws will apply to Hindus, but not minorities.
  2. You can make laws that discriminate against beef-eating, and still claim you don’t’ discriminate against minorities who want to eat beef. 
  3. You can make laws (like the Right to Education) that are supposed to be applicable to all, but not minority-unaided institutions. 
  4. You can profess the right to religious freedom, but states can also put in laws to hinder it.

Article 25.2(b). gives the State rights to interfere in how Hindu temples are run. Articles 29 and 30 give minorities the right to run their own institutions according to their own traditions and culture. This is why though Haji Ali may have lost the battle at High Court, it may win it at SC. But Sabarimala case can lose at SC when subjected to the test of a lopsided Constitution. This is because Article 25(2)(b) would allow the SC or the government to claim that Sabarimala is an institution of public character and should be “open to all classes and sections of Hindus.”

Article 29 gives minorities the right to protect their culture and institutions. It says, inter alia, that “(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.” If Sabarimala had not been covered under Article 25(2)(b) which gives the state the right to enforce its own idea of egalitarianism, it could have claimed protection under Article 29. Article 29 negates a part of the ideas in Article 25. Giving minorities a right not enjoyed by a majority is essentially iniquitous, but the Supreme Court may not spend much time discussing this anomaly.

So, when SC bench (Dipak Mishra, Gopala Gowda and Kurien Joseph) says, “We will be guided by (a) rational dimension and that is the Constitution. I just believe in the Constitution.”, it can claim to be following the Constitution even while defeating its spirit.

However, another point which needs to be taken into account here is that Sabarimala, or any other temple for that matter, is NOT a public space. It is the private space of the presiding deity which has a ‘public character’ as devotees who subscribe to the pratista sankalpa of that deity visits the temple and give offerings that are according to the liking of that deity. This means, the case can still be put forth arguing that mere ‘public character’ of temples doesn’t imply they are ‘public spaces’ which must necessarily be "open to all classes and sections of Hindus”. The diversity, complexity and depth of the Hindu tradition must find its voice heard in the court room battle to win the case.

References:

1. A Wonky Constitution by R. Jagannath

2. Note on Sabarimala Issue by PB

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