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Suhrith @suhrith
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The article linked here, has already been widely cited and circulated, but, in my reading, it gets many critical aspects surrounding the interpretation of Articles 25 and 26 wrong.
First, it brushes aside the question of how the Sabarimala temple can be classified as a denominational temple. This, I believe, was the most salient aspect of the Supreme Court’s ruling.
I’m not sure how it helps the cause of those opposing temple entry for women aged between 10 and 50 to claim that the Constitution vests a right to manage religious affairs not only in religious denominations but even sections thereof.
Ultimately, to seek protection under Article 26, the group asserting the right must establish the existence of some religious denomination or the other.
This can only be done if the group were to show that they are a part of a sect/community of a particular religion. That’s simply absent here. After all, those asserting the purported group right have claimed that the temple is open to people of all religions.
Additionally, the group asserting the right would also have to show that the temple was established for the benefit of that particular denomination. That’s also absent here.
This position of law has long been established right from the Supreme Court’s decision in Venkatarmanu Devaru in 1957 (indiankanoon.org/doc/1896039/).
That was a case where the courts below had found (and the Supreme Court had affirmed) the denominational status of the Sri Venkataramana Temple at Mookly. The temple, it was established through civil trial, had been founded for the benefit of Gowda Saraswath Brahmins.
The court held there that even then the temple cannot bar entry for other communities/castes, except on special occasions.
In the present case, there has been no evidence led (and indeed this can in any event only be done through a civil suit) to show that the Sabarimala temple was founded for the benefit of any specific community/group.
On the other hand, even those opposing temple entry for women aged between 10 and 50 years have claimed that the temple is otherwise open to all. The very claim made for denominational status is therefore paradoxical.
Also, for a moment, let’s consider the consequences of holding that the Sabarimala temple is a denominational one. If this is permitted, there’d be all manners of caste-based claims made tomorrow.
In Tamil Nadu alone, there’ll be claims made over different temples by different groups/sects of Vaishnavite and Shaivite Brahmins. This has, in fact, been done in the past and, fortunately, rejected by the courts.
Indeed, as Justice Nariman rightly holds, “Hindu believers of the Shaivite and Vaishnavite form of worship are not denominational worshippers but part of the general Hindu religious form of worship.”
As much as the plurality and vastness of our civilizational ethos has to be celebrated, we also need to recognise that there are certain elements of this ethos that have been deeply degrading to certain communities.
After all, the very arguments that are being made here were made in seeking to keep Dalits out of India’s temples. Couching exclusion and discrimination in a language of diversity ought not to serve as a means to overcome the Constitution’s diktats.
Also, not sure how Justice Chandrachud’s opinion can be faulted here, as one that seeks to import an American style constitutionalism. India’s religious freedom clauses are sui generis, and his opinion recognises this.
If anything, an application of American style secularism ought to have seen the court stay clear of disputes such as this.
Justice Chandrachud (and indeed the other opinions forming the majority) recognise that in India there can be a conflict between claims over religious freedom made by individuals on the one hand and groups on the other.
That these clashes need to generally be resolved by favouring individual liberty over group rights can be seen from the fact that Article 25 says that all persons are “equally entitled” to the right to practice religion.
A women’s right to worship in the Sabarimala temple cannot, therefore, be overridden by a right claimed by a group to keep women aged between 10 and 50 out, whether on the basis of custom or otherwise. (Justice Nariman's opinion is very clear on this).
Finally, not sure what kind of dharma would allow the exclusion of women from a temple on what are essentially physiological grounds.
We can argue all we want over whether we want to go as far as Justice Chandrachud says we should (I have argued here that he provides an appealing way forward: thehindu.com/opinion/lead/a…).
But the conclusions (and for the most part the reasoning too) of the majority’s verdict are unimpeachable as a matter of basic constitutional interpretation.
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