Friday, January 15, 2016

The case against customary exclusion

On January 18, the Supreme Court will hear final arguments on the question of whether women can be barred entry to the Sabarimala shrine in Kerala. During the hearing on January 11, Justice Dipak Misra indicated that he was broadly sympathetic to women’s claims to entering and worshipping at the shrine. He is reported to have said, “Unless you [i.e. the governing board of the shrine] have a constitutional right to prohibit women entry, you cannot prevent them from worshipping at the shrine.”
These remarks have caused quite a stir. In particular, Justice Misra’s reference to the Constitution, and his suggestion that its non-discrimination clauses might be applicable to this dispute, raise some complex questions about the relationship between freedom of religion, equality, individual rights, and the extent to which the court can interfere in the management of religious institutions.
Room for state intervention
The history of the framing of the Constitution is a history of conflicting and clashing philosophies. The Constitution’s fundamental rights chapter grants rights to individuals against the state, to individuals against other individuals, to groups and communities against the state, and, as a final layer, allows the state to restrict these rights for various reasons of social and public interest. Tension between these various provisions is inevitable, and is perhaps reflected most starkly in the religious freedom clauses: Articles 25 and 26. Article 25(1) guarantees to all persons the right to freely profess, practise, and propagate their religion. Mirroring this, Article 26(b) grants to religious denominations the right to manage their own affairs in the matter of religion. Overriding both these provisions, Article 25(2) allows state intervention in religious practice, if it is for the purpose of “social welfare or reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus”.
During the debates in the Constituent Assembly, B.R. Ambedkar — supported, among others, by Rajkumari Amrit Kaur, who expressed specific concerns about the plight of women under religious law — endorsed giving wide, interventionist powers to the state on the ground of the deep and pervasive role that religion played in the lives of Indians. “The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death,” he observed, “I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious.” Over the years, the Supreme Court has itself restricted the scope of the religious protection clause to “essential practices of a religion”. While holding that the state cannot use the reform clause to “reform a religion out of existence”, it has nonetheless held that aspects beyond essential practices have no protection from state intervention.
Why does this matter? It matters because the Sabarimala governing board’s argument is that the prohibition of women is justified by “custom”. They rely upon the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which permit prohibiting women from accessing places of worship where “custom” or “usage” requires it. During the January 11 hearing, Justice Misra doubted the existence of any such custom. The court’s previous jurisprudence suggests that the burden upon the board will not merely be to establish the existence of a custom, but also that the custom is “essential” to the practice of the religion.
What if the board fails? If it cannot show that prohibiting women from entry is an essential religious practice, then it can no longer claim absolute immunity under Article 26(b). Conversely, however, the women worshippers can argue that prohibiting them from access violates their right to worship under Article 25(1).
It has long been accepted by the Supreme Court that the right to worship, as well as modes of worship, are protected by Article 25(1). While the court, admittedly, has held that the right to worship does not extend to worshipping in any and every place, it has also noted that access to places having a “particular significance for [a particular] religion” is constitutionally protected.
If, therefore, the women worshippers can demonstrate that the Sabarimala shrine has special and unique religious significance, their Article 25(1) right to worship there stands established. The board’s prohibition upon their entry, consequently, impermissibly violates their constitutional right to freedom of religion.
The state and the shrine
That does not, however, entirely resolve the issue. The right to freedom of religion under Article 25(1) is enforceable against the state, and not against other individuals, or corporate bodies. The question that the court must answer therefore is whether the Travancore Devaswom Board, which controls access to the shrine, can be equated to the “state”.
In fact, in an earlier decision, the Kerala High Court already appears to have held that it can. Previously, the Supreme Court has held that corporate bodies that are “functionally, financially and administratively” under the control of the state can be equated to the state for the purposes of fundamental rights. The Travancore Devaswom Board is an autonomous body. While its members are appointed by the State legislature, it derives its main income from the administration of the temple. Therefore, it might be difficult to argue that the board is functionally or financially under the control of the state. And if the board cannot be equated with the state, then the constitutional right under Article 25(1) is not enforceable against it.
That does not yet mean that the case is lost. The Supreme Court has held that if one private party obstructs another private party from exercising her constitutional right, then it is the duty of the state to effectuate her right by restraining the former from continuing with its obstruction. Therefore, the women worshippers may ask the court to direct the state to take all necessary steps to guarantee that they are allowed to access and worship at the Sabarimala shrine.
Finally, there is another route the court might take. The Kerala Hindu Places of Worship Rules speak about “customs” and “usages”. The Supreme Court has held that while personal law is exempt from the application of the Constitution, mere ‘custom’ is not. It might therefore simply strike down the offending rule on the ground that it discriminates on grounds of gender, and therefore violates the Constitution.
The Sabarimala case is not the only case of this sort that is before the judiciary. Last year, a group of women approached the Bombay High Court asking for the recognition of their right to enter and worship at the Haji Ali Dargah shrine. The matter is presently awaiting a decision.
It seems clear that the coming months will see the question of gender justice in religious institutions at the forefront of the judicial landscape. It is now the task of the courts to craft a solution that advances the constitutional guarantee of equality, non-discrimination and freedom of religion, while remaining cognisant of the fact that the Constitution also guarantees the right of religious sects and denominations to self-governance.
Gautam Bhatia is a Delhi-based lawyer. His book Offend, Shock or Disturb: Freedom of Speech under the Indian Constitution was published last year. )

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