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Law’s Tryst With Religion

What happens when a Centuries Old Custom is brought under Judicial Scrutiny on grounds of Violation of Part III of the Constitution or in simple terms is in clash with Constitutional Morality . This is a question which an ordinary man has mandatorily stumbled upon , that when can his faith or belief in a particular religious practise which he has been following emulating his ancestors be one fine day declared to be unconstitutional by the Court of Law . “The Right to practise one’s religion is a Fundamental Right guaranteed by Part III of the Constitution of India without reference to whether religion or religious Practices are rational or not” was observed by Justice Indu Malhotra while giving the dissenting opinion in the landmark Judgement of Indian Young Lawyer’s Association and Ors. V The State of Kerala and Ors, [i]. So essentially where does the Courts strike the line of “fine balance” between a Centuries old Custom being followed and Constitutional morality ?

THE SUPREME COURT AS GUARDIAN OF FUNDAMENTAL RIGHTS

“It is easier to draft a Constitution than to work it” -Fali.S.Nariman. One of the India’s finest legal minds and Constitutional expert Shri Fali.S.Nariman gave a fine interpretation of the Constitution of India with relation to the present day in the following words : “In Constitution making , there are invisible forces that can never be and the spirit of tolerance , which is at a very low ebb today”[ii]


It is the Supreme Court of India who is regarded as the Guardian of the Fundamental Rights and are entrusted with the task of Interpreting the Constitution in the light of the Intent of the Constitution makers . Before delving much into specificities it is an imperative that certain provisions of the Constitution must be laid down in plain .


FEW CONSTITUTIONAL PROVISIONS IN SIMPLE SENSE

Article 14 of the Constitution of India states in simple language that equality is about treating treating equals equally and un- equals unequally so as to bring about equality . With regard to Religion our Constitution is fairly clear that India is a Secular Country and the State will not interfere in Religious belief and Practices , subject to that a person’s religious freedom cannot offend public order , morality or health .which is provided in Article 25 of the Constitution of India . Clause (a) of this Article also provides what lies beyond the realm of the State , It cannot enter into the private belief or practise of an individual, and Article 26 states the rights of a religious denomination , now what is a religious denomination? Broadly in order to be a denomination there are three Conditions specified in Law .


Now that we have more or less placed a basic idea as to few of the Provisions of the Constitution of India necessary for the purpose of comprehending the issue at hand , with focus on the Sabarimala Temple Verdict ,( because which other judgement would be better in justifying this topic ! ) the matter can be hit on the head .


CONSTITUTIONAL MORALITY OR A CENTURIES OLD CUSTOM ?

A Brief background as to the Sabarimala Temple case

1. The Sabarimala temple dedicated to Lord Ayappa is a prominent temple in Kerala which is visited by over twenty million pilgrims in a year .

2. As per the Centuries old custom followed , the Acharas believe and according to Rule 3 that women in the age group of 10 to 50 Years are not permitted to enter this temple

3. This because the deity in the Sabarimala temple is in the form of a Naishtik Brahmachari who practices strict penance and the severest form of celibacy .

4. The Petitioners contented that this customary Practise is clearly violative of Article 14 of the Constitution of India as the classification lacks a “Constitutional object” , it is manifestly arbitrary as it is based on physiological factors alone and does not serve any “Valid object”

5. The Petitioners also contend that the Customary practise violates Article 15(1) of the Constitution of India as it is based on ‘sex’ alone .

6. It was also contended that this exclusionary practise of women violates Article 21 as it has an impact of casting stigma on women as they are considered to be polluted which has a huge psychological impact on them and undermines their dignity protected by Article 21 .


Stating very briefly regarding the facts of the case I do not wish to jump into any further contentions made and the Contentions of the Respondent too because that would firstly, defeat the very purpose of this blog and secondly , would picture nothing more than a monotonous Case Comment .


THE QUESTIONS STUMBLED UPON

So as I have briefly placed the Contentions of the Petitioners that basically the Customary of Practise of not permitting women (Aged 10-50) affects Constitutional Morality , but is this contention completely flawed ? as to what did the Petitioners know as to the origins of the practice before they threw out the Conclusion first , is Sabarimala temple verdict as advocate J.Sai Deepak articulately points out , is about misogyny as petitioners contend? , is it a question of gender as petitioners contend? , but it is about a certain tradition which have been contorted , distorted , and played out in a very different light in public domain . There are deities particularly meant for females , Chakkulathukavu Temple in Kerala dedicated to the Goddess Bhagavathi. It follows peculiar annual rituals called ‘Naari Puja’.


On the first Friday of December called Dhanu, the male priest washes the feet of female devotees who have fasted for 10 days. We must know that every temple In India has it’s own tradition with respect to the history from where it flows , and in the Instant Sabarimala Case the deity is in the form of eternal Naishtik Brahmachariya , equally followed by many men in India where they are not allowed to be in touch of a Woman , this is nothing specifically directed against them , and this can very well happen reciprocally so how can the petitioners who were not even a concerned aggrieved party throw out this conclusion that this centuries old tradition is a question of pure misogyny ? The contention further continues to state that this Customary practise treats the process of menstruation ‘impure’ and henceforth affects their mental stigma , they must not be aware of the fact that there are temples in the Country which worship the very physical process of menstruation . The Kamakhya Temple does.


So the whole point in here is not against defending or targeting any specific gender , but the major question is can the argument of gender equality be applied to every possible issue or this fact must be admitted that there are some issues completely devoid of that . The Supreme Court has stated with regard to appointing of priests in the Madhuri Minakshi temple “Respect the agamas or the scripture applied to a temple as long as they are not negatively discriminatory” so hypothetically if it is said that a person of a particular caste is not at all allowed , this kind of practise would definitely have no place in modern India .


CONCLUDING IT WITH SCEPTICISM

“Faith is a living and unshakeable confidence , a belief in god so assured that a man would die a thousand deaths for it’s sake”- Martin Luther King


Through the whole blog , a definite try was to portray in the simplest sense the questions which had arose in the mind of an ordinary man . As to what and how does Law deal with their Religion or Religious Practices to be Precise . The Sabarimala Temple Verdict was taken as the major focus as I believe that it is a perfect example of a tragedy where the Constitutional Court did forget it’s role by applying the notions of Gender Equality to a well established Customary Practice . So does it mean Constitutional Courts or the Law should never step in when It comes to a Customary Practise ? Never . It must not be Misconstrued . Even the practise of Sati , in which a widow used to sacrifice herself by sitting atop her deceased husband’s funeral pyre , it was abolished by the Bengal Sati Regulation of 1829 .


Such Immoral practices be it customary followed since time immemorial , must have no place in the world as it is a blot on Humanity itself , Constitutional Morality is much far fetched . When it comes to the question of misogyny, treating female as an inferior being , it should absolutely have no place in Modern India , but the whole argument is something on a different space . can the argument of Gender equality be applied to every tradition ? So can traditions be moulded accordingly ? If the answer is in affirmative , the various traditions mentioned above say of the deities particularly meant for females , Chakkulathukavu Temple in Kerala dedicated to the Goddess Bhagavathi can also be challenged on grounds of Gender equality ?


It is a tradition (Devoid of Limitations to Article 25 of the Constitution of India ) followed since centuries , very much protected by Part III of the Constitution , So where does the Court draw the fine line of balance to maintain the essence of the Constitution so as to not forget it’s roots . Justice Chinappa Reddy while delivering the Judgement in Bejoy Emmanuel v State of Kerala[iii] beautifully put it in the following words “ Our past teaches tolerance , our philosophy preaches tolerance and our Constitution practises tolerance , let us not dilute it .”


ENDNOTES [i] Indian Young Lawyer’s Association and Ors v State of Kerala and Ors. , (2019) 11 SCC 1 (India)

[ii] Swapna Raghu Sanad , Are Court’s Crossing the Lakshman Rekha ? Fali.S. Nariman’s speech on Constitution Day is inspired by the Ramayana ! , Financial Express , (August 18 , 2020) , https://www.financialexpress.com/india-news/are-courts-crossing-the-lakshman-rekha-fali-s-narimans-speech-on-constitution-day-is-inspired-by-the-ramayana/1397698/ [iii] Bejoy Emmanuel v State of Kerala , 1987 AIR 748.


ABOUT THE AUTHOR

This blog has been authored by Debdatta Mukhopadhyay, who is a 3rd Year B.B.A., LL.B. student at KIIT School of Law , Bhubaneswar.


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