Temple entry: An issue of gender rights

The public interest litigation before the Supreme Court challenging prohibition of entry of women of menstrual age from the Sabarimala temple raises intriguing questions on religious freedom and gender justice.

There is a controversial and very pertinent question to begin with. Why afford religious belief the special protection? My belief in liberalism governing my moral, political, intellectual life could be as important to me as much your religious belief is to you. Why is religious freedom elevated into a higher level that the other, arguably important aspects of daily life are not? For instance, my right to travel or right to choose my university is merrily contained in my liberty and personal rights whereas the right to worship is granted a distinct status.

Concerns of this nature were reflected in the Constituent Assembly while drafting the provisions on religious freedom: “The absurdity of this position is now manifest in articles 19 to 22 of the Draft Constitution… Fundamental rights are inalienable and once they are admitted, it will create bad blood. Let us say nothing about rights relating to religion. Religion will take care of itself…” (Loknath Mishra, Constituent Assembly Debates, December 6, 1948).

This argument was ultimately rejected leading to recognition of religious freedom as a fundamental right. The Indian Constitution has elaborate provisions in this regard. Articles 25 to 28 are uniquely crafted, strikingly different from how religious freedom is conceived in Europe or the United States. It reflects the Indian receptive approach of ‘equal respect secularism’ as opposed to ‘no concern secularism’ wherein religion is substantially divulged from the state. There might be historical and cultural reasons favouring such an approach since as a social institution, the influence of religion over Indian private and community life is exceptional. Our Constitution operates in peculiar pluralities. In this context, it is debatable whether a ‘no special right to religion’ argument by scholars like Brian Leiter can succeed in the Indian socio-political and cultural (and not only in the legal) environment.

The constitutional protection to religious freedom rests on the essentiality doctrine enunciated by the Supreme Court in Shirur Mutt (1954). A right to religious freedom claim must primarily and invariably show that the practice or belief forms the “essential part” of the particular religion. It is true that the jurisprudence on essentiality has been inconsistent or often contradictory. Acknowledging this problem, Ramaswamy Dikshutulu & Ors v Govt of Andhra Pradesh & Ors (2004) referred the matter for consideration by a larger bench. The larger bench decision has not come so far. Therefore, absence of a uniform understanding on religion and religious denomination by the judiciary will pose a major difficulty for the Supreme Court while deciding the present issue.

Even if the answer to the question of essentiality is in the affirmative, the court will analyse if the right can be exercised subject to the restrictions of ‘public order, morality and health and to the other provisions’ of Part III of the Constitution. Not every activity can be argued to be within the ambit of religious freedom.

Balancing the rights

In Church of God (Full Gospel) (2000), the Court said, “In our view, in a civilised society in the name of religion, activities which disturb infirm persons, students or children… cannot be permitted.” Balancing of religious right with other rights has been of serious concern to the court, particularly in view of the restrictive nature of Article 25 compared to other fundamental rights.

In Narasu Appa Mali (1951), the Court held, “Now a sharp distinction must be drawn between religious faith and practices. What the State protects is religious faith and belief. If religious practices run counter to public order, morality or health or a policy of social welfare upon which the State has embarked, then the religious practices must give way before the good of the people of the State.”

It is argued that the there are dangers of judicial excessiveness in matters like the current one. This approach wrongly presupposes that the judiciary undertakes active social reform akin to that of, for example, Parliament. This is not true. Courts are more or less interested in constitutional interpretation of rights and their espousal. The Court need not assume unwarranted theological authority for interpretation of religious texts and dogma. Even if such an exercise is undertaken, the scope for determination of basic gender rights is never narrowed.

We are not unfamiliar with the conflict between religious freedom and gender equality. The denial of entry for women to the temple obviously presents serious equality concerns. It is a classic case of systematic arbitrary discrimination against women for biological reasons. Non-intervention in a discriminatory practice merely because it is clothed in religious freedom will be antithetical to broader principles of equality and liberty. If religion and human rights seem absolutely incompatible, we need to arguably abandon one of them. Probably, the time has come for Indian women to demand freedom from religion.

(Thulasi K Raj is a student of Masters in Law at University College, London)