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Sabrimala Verdict and debate on Constitutional Morality

The Supreme Court had ruled that the practice which is being used by the sabrimala temple is in violation of the rights of the women and the Supreme Court allowed women to enter the temple

The main contention was that whether supreme court has a right to involve in the matter of the religious matter different views were held by the judges who passed the verdict the issue of constitutional morality was being discussed in the particular case the term itself has not been defined by the makers of the constitution but the said term had been used by the apex court in its earlier judgements The respondents had said that the allowing women would affect the celibacy of the lord ayyappa as he being an naishtika brahmachari.

This is the case of women rights uprising where the age old customs were not allowing the women of particular age that is 10-50 as called menstruating in the temple. Though living in the 21st century and boasting about the gender equality it seems like it is still a dream the problem is with the mind-set of the people the separation lies within the society because on one side it is promoting the idea of gender equality and upliftment of women’s rights but on the other hand it has been suppressing it.

The main issue was that the said religious customs though being violative of the rights of the individual should be allowed or not the court in this stance was very clear that the customs which violates the basic rights of the individual should not be allowed further the judgment was not an unanimous one with Justice Indu Malhora being the sole dissent. According to her Supreme Court should not interfere in the religious matter and it is upon the particular religion to decide what constitutes an essential practice or not.

Secularism is the basic idea of the Indian constitution apart from equality thus treating every communities as same can be considered as following the principle of equality and secularism The judge’s point of view that the particular religious practice is essential or not should be decided by the religious community is maintainable as India being an secular democratic state religious orthodoxy should be protected just like the other freedom.

The preamble comprises of the four principles justice, equality, liberty and fraternity the principle liberty includes the freedom of faith and expression however there are restrictions to it. Prohibiting someone just because of the biological feature is an ancient and static or an orthodox practice which the courts should get rid of it by applying the constant and rational thinking according to the constitution.

Followers of ayyappa does not constitute a separate religious denomination as they did not hold any common faith or a distinct name, ayyappan are part of Hinduism as lord ayyappa is the son of the Hindu god Shiva & Vishnu. Interpretation of morality should be according to the lines of constitution and it should be objective the interpretation allows the main branch that is judiciary to hear the problems which legislature and executive had failed to hear.

Decoding The Judgment Given By The Apex Court

The supreme court in its judgment dated on 28th September allowed the women to enter into the sabrimala temple and struck down the arguments raised by the respondents the supreme court by 4:1 of the majority said that not allowing a women to enter into a temple violates right to freedom of religion which is given under the article 25 of the Indian constitution of female worshippers.

The court also stuck down the rule 3(b) of the Kerala Hindu Places of Public Worship Act as unconstitutional. Rule 3(b) allowed for Hindu denominations to exclude women from public places of worship if the exclusion was based on custom there were various opinions given by the bench speaking for justice rohinton nariman he said that ‘they do not constitute a separate religious denomination, he said that the sabrimala temple’s denominational freedom under article 26 is subject to state’s social reform which is given under article 25(2)(b)’.Article 25(1) protects the fundamental right of women between the age group of 10-50 justice nariman also stuck down the Kerala Hindu places of public worship rules of 1965 as unconstitutional.

Justice Chandrachud was of the opinion that ‘the exclusion of certain age group of women was against the constitutional morality and he said that the article 25 and 26 cannot act as in which violates the fundamental rights’ he agreed with the opinions which were given by the CJI dipak mishra that the lord ayyappa does not enunciate a separate religious denomination.

He further said that the biological factors does not have to do anything with the guarantees under the constitution further menstrual status of women is not a valid ground of to deny her right to worship. He also dealt with the article 17 that is untouchability this practice itself amounts to untouchability because the exclusion of the women of the age group of 10-50 are not allowed to enter into the temple.

The dissenting opinion of Justice Indu Malhotra is based on the different meaning of constitutional morality. Justice DY Chandrachud’s basis of interpreting morality was different as compared to the one used by justice Indu Malhotra she argued that constitutional morality in a secular polity, such as India, requires 'harmonisation' of various competing claims to fundamental rights [1].

She was of the view that the court should respect the religious denominational right to manage its own internal affair irrespective of whether the practice is logical or not she also held that the sabrimala temple satisfies the test of separate religious denomination and it is protected under article 26(b).Article 26 denominational freedom is subject to public order, morality and health herein morality referred as the constitutional morality she was of the opinion that the India is a pluralistic society and the society must respect the individual right to profess, practice and propagate their faith. She rejected the arguments made by the petitioner that rule 3(b) of the Kerala Hindu places of public worship act.

It is not in conflict, the rule is well within the article 26(b) of the constitution of India. She dismissed the argument about the article 17 that the exclusion of women who are menstruating amounts to untouchability, the term untouchability is only restricted on the terms of caste not on the basis of gender the rational and the equality placed in the article 14 cannot be applied in the religious customs and ceremonies because of article 25.

Whether The Supreme Court Uphold Constitutional Morality Over Customs

The term constitutional morality has not been defined by the makers of the constitution neither, it was given that the morality has been enriched by the sole prerogative that constitution should prevail over the customs and age old practices in the judgment given by the apex court Justice DY Chandrachud said the morality refereed in the article 25 and 26 is constitutional morality and it should pass the four test that is justice, liberty, equality, justice and excluding the women of the age group of 10-50 does not enshrined that the practice does not comes under the legal scrutiny. Constitutional morality was used by Dr.Br Ambedkar in his speech the term morality is used in article 19, 25, 26 of the Indian constitution.

Interpretation of morality differs from judges to judges and this has been used by many of them to oppose this who are solely dependent on the literal interpretation of the constitution. The priests of the sabrimala temple claims that the practice is being adopted since ancient time and it has been a religious custom that the practice of exclusion of women between 10-50 is established and justified so the question may arise that the, courts can they in the name of constitutional morality can set aside a custom or not?

The arguments which were used by the respondent were that allowing women of the age between 10-50 would affect the celibacy and austerity which is unique for lord ayyappa the Guwahati high court in Riju Prasad Sarma v. State of Assam[2]:
Held that the religious customs which are protected under the article 25 and 26 of the constitution are resistant from dispute from other provision of part 3 of constitution of India.

It was claimed by the respondent that this was a custom which is being put into practice around 14th century but court rejected the argument as there were not any documentary evidence or proof to prove that the this is a custom the question of supremacy of constitutional morality over the religion came before supreme court in the year 1954.Commissioner, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swaminiar of Sri Shirur Mutt[3] which is popularly known as shirur mutt case.

This case laid down the foundation for the test of essential religious practice it was held that the term religion will cover all rituals and practice integral to religion while the judgment given in the sabrimala was based on the shirur mutt case that exclusion of the women does not comes under the integral practice of the religion the supreme court in the case of Commissioner of Police vs. Acharya Jagdishwarananda Avadhuta and Another[4].

It was held that the essential part of religion means the core belief on which the religion is founded the test to determine whether the particular practice is essential part of religion is based on that, the nature of religion will be changed without that part or practice however in this case the dissent by justice lakshman, he said that only religious denominations have the right to determine what practice are essentials to their religion and no outside authority can decide that the it is based on the view that people who are practising the religion are knowing that the particular practice is essential or not question of constitutional morality was also in the case of shayara bano[5]where court held the practice of triple talaq unconstitutional as the said practice violated the article 14 and 21 of the constitution of India and court here upheld the constitutional morality and the decision was against the religious belief of the Muslims.

Constitutional morality is based on how the judges interpret the term morality as it has different interpretation this cannot be the based by sticking on the bookish interpretation of the law though wide interpretation of the term can be difficult for the courts in the future decision by applying the concept of constitutional doctrine the judges are not only hindering the rights of the said but also leading that the decision given by the apex court will need to be reviewed thus the concept of this term constitutional morality should be limited as there is ambiguity in the term and it is subjective by laying down the principles judges should be guided to follow the principles as laid down the Manoj narul judgment given by the apex court gives a contour definition to the term constitutional morality it means:
The principle of constitutional morality basically means to bow down to the norms of the constitution and not to act in a manner which would become violative of the rule of law or reflectible of action in an arbitrary manner[6].

In the popular case of Naz foundation [7]and Shreya singhal [8]case the word morality has been interpreted as constitutional morality and not an individual morality, it must be a matter of fact that respect for religious denomination and their views to form the part of the constitutional morality and efforts should be made to settle them and if the judges do come at a conclusion that the right to religious denomination is not in line with the constitutional morality than it needs to be based on the constitution’s own based rights.

The claims of the religious customs were intervened by the legislation like the sati and child marriage. Whenever the courts have tried to interfere with old customs and have nullified them, there has always been hue and cry it is a universal truth that faith and religion do not countenance discrimination.[9]

Analysis
The apex court while setting aside the impugned judgement of the Kerala high court upheld that women should be allowed to worship the sabrimala shrine. The court though was acting as according to the moral values that is equality, it went on to describe that whether the particular practice is of the essential religious practice or not.

There are not enough documentary evidence that the particular practice is a custom but courts should not interfere with the practice which according to the particular class of people is an essential religious practice the judgment was a test of constitutional morality wherein it was given that the faith and customs be according to the diktats of Modernity. The judgement established the predominance of constitutional morality over the customs the verdict can act as a precedent for the practices and beliefs and traditions of different religions/faith which are antithetical to it.

The Supreme Court has manifested women’s right are equal with the men the menstrual position of women is her privacy and their biological progress must be free from the social and religious practice which are discriminatory in Nature. In the conflict of secularism and the equality court should uphold Equality, a democratic state shall put equality first and when there is a case when the fundamental rights of the citizen come into the conflict of the religious rights of the communities the former should be given importance however while doing this it clearly encompasses that the intervention by the state in the conservative communities.

If the Hindu religion is to be their religion, then it must become a religion of Social Equality[10].So while the ‘non-entry’ of women can be a religious tenet, in this case, it cannot be readily presumed that its regulation will fundamentally and irreversibly challenge the existence of the sect and its core belief system[11]. Courts have played an essential role in determining that the particular practice is essential or not and what practices are myth.

The supreme court also noted from the S Mahendran’s case [12] observation made by the Kerala high court that even when there were old customs women were allowed to visit the temple In the conundrum of the verdict there lies an ambiguity of the word constitutional morality timely and according to the judges it has been used in a distinctive way it should be used accordingly which satisfies the will and the principles of the constitution.

The people should support that the entry of women should be allowed who belong to the all age group and it is given in the article 51A (E) of the Indian constitution that it is a duty of citizen to oppose such tradition which affect the dignity of the women.

Bibliography:
  • The Wire, https://thewire.in/law/sabrimala-women-temple-entry-supreme-court-verdict (last visited Jan.3, 2021
  • Aakarsh Singh, A year of constitutional morality, LEGAL SERVICE INDIA (Jan.3,2021,16:41), http://www.legalserviceindia.com/legal/article-680-a-year-of-constitutional-morality.html.
  • RK Dewan & Co, Unravelling the concept of Constitutional morality in our Constitutional Jurisprudence, LEXOLOG, (Jan.3, 2021,9:28), https://www.lexology.com/library/detail.aspx?g=f09de5c2-7ecc-48eb-b95d-0df871d938ee.
  • Rajesh Yadav, Violation of Woman right in Sabrimala Temple, LEGAL SERVICE INDIA (Jan.4 2021,11:54),http://www.legalserviceindia.com/legal/article-228-violation-of-woman-right-in-sabrimala-temple.html.
End-Notes:
  1. SCOBSERVER,https://www.scobserver.in/court-case/sabrimala-temple-entry-case/plain-english-summary-of-judgment-ee5ae148-9597-479f-84d7-35d398ed5e68 (last visited Jan.3,2021
  2. Riju Prasad Sarma v.State of Assam,(2015) 9 SCC 461.
  3. Commissioner Hindu Religious Endowments v.Sri Lakshmindra Thirtha Swaminiar of Sri Shirur Mutt,AIR 1954 SC 282.
  4. Commissioner of Police vs. Acharya Jagdishwarananda Avadhuta and Another,(2004) 12 SCC 770
  5. Shayara Bano v.Union of India,(2017) 9 SCC 1
  6. Manoj Narula v.Union of India,(2014) 9 SCC 1
  7. Naz Foundation v.State(NCT of Delhi),(2016) 15 SCC 619.
  8. Shreya Singhal v.Union of India,(2015) 5 SCC 1.
  9. Ankitesh Ojha,Sabrimala dissent from the dissent of Justice Indu Malhotra:New Boundaries for Article 14?
    TheLeaflet(Jan.01,2021),https://www.theleaflet.in/sabrimala-dissent-from-the-dissent-of-justice-indu-malhotra-new-boundaries-for-article-14/
  10. Sowmya Sivakumar, Sabrimala:‘Diety’s Will’Cannot Trump the Constitution on Right to Equality,The Wire (Jan.02, 2021, 7:30 AM), https://thewire.in/law/sabrimala-is-temple-entry-a-destination.
  11. Satya Prasoon,The Sabrimala Case has the Potential to be a constitutional watershed,The Wire (Jan.02, 2021,3:38 PM),https://thewire.in/law/sabrimala-temple-case-constitutional-watershed.
  12. S.Mahendran v.The Secretary,Travancore Devaswom Board,Thiruvananthpuram&Ors, AIR 1993 Kerala 42.
List Of Cases:
  1. Riju Prasad Sarma v.State of Assam, (2015) 9 SCC 461
  2. Commissioner Hindu Religious Endowments v.Sri Lakshmindra Thirtha Swaminiar of Sri Shirur Mutt,AIR 1954 SC 282.
  3. Commissioner of Police vs. Acharya Jagdishwaranand Avadhuta and Another,(2004) 12 SCC 770.
  4. Shayara Bano v.Union of India,(2017) 9 SCC 1.
  5. Manoj Narula v.Union of India,(2014) 9 SCC 1
  6. Naz Foundation v.State(NCT of Delhi),(2016) 15 SCC 619.
  7. Shreya Singhal v.Union of India,(2015) 5 SCC 1.
  8. S.Mahendran v.The Secretary,TravancoreDevaswom Board,Thiruvananthpuram&Ors, AIR 1993 Kerala 42.
Abbreviations:
  • & - And
  • Ors - Others
  • CJI - Chief Justice of India

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