Sabarimala Verdict: A Watershed Moment in the History of Affirmative Action   

The Sabarimala judgment greased the wheels of social integration and breathed life into feminist jurisprudence. The petitioners had asserted that regressive interpretation of scriptures could not be used for prolonging discriminatory practices based on the biological state of a person. This litigation has been a quest for judicial intervention to restrict dogmatic practices in the alleged pursuit of religion. Denying women entry into places of public worship solely on the basis of their physiological state is not the mandate of the Indian Constitution and transgresses the spirit of 'right to equality' under Article 14, says AYESHA JAMAL

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The modern, democratic state today has an institutionalised justice system wherein courts uphold the rule of law and sometimes fill the policy lacunae involuntarily left unaddressed by the legislature or are creatures born out of vicissitudes. However, the fact that judges of constitutional courts adjudicate on matters of faith has always been a bone of contention in a society as intensely drawn to religious beliefs as India.

In the Indian context, such legal issues entail a complex interplay between Articles 14, 25 and 26 of the Constitution. When these Articles are juxtaposed, the prolonged debate that ensues contemplating the tenets of constitutional integrity overwhelms us. The constitutional trinity of 'liberty', 'equality' and 'dignity' runs deeper than it appears; it is an unwritten moral code that transcends the theoretical restrictions of codified law.

Indian Young Lawyers Association vs. State of Kerala (popularly known as the Sabarimala case) is one such contentious case, adorned with the development of progressive feminist jurisprudence. The Sabarimala verdict, pronounced over a year ago, is now subject to a batch of several voluminous review petitions and has been referred to a seven-judge Constitution Bench by the Supreme Court by way of a recent decision in Kantaru Rajeevaru vs. Indian Young Lawyers Association & Ors.

Judicial history of Sabarimala

The Sabarimala Sree Dharma Sastha Temple is a prominent temple in Kerala dedicated to Lord Ayyappa. In 1990, a restriction on the entry of women of menstruating age (between 10 and 50 years) into the Temple was sought. The High Court of Kerala restricted their entry premised on the reason that the said exclusion was constitutional and justified as it was a long-standing custom prevailing since time immemorial by way of its order in S. Mahendran vs. The Secretary, Travancore (1993).

A subsequent petition was filed in public interest in 2006 contesting the constitutional validity of Rule 3(b) of the Kerala Hindu Places of Public Worship Rules, 1965 (that restrict the entry of women into the Temple). This legislation was enacted by the state government to regulate the entry of different sections of Hindus into places of public worship. The petition stated that the ban imposed (restricting entry of women) be removed as it was ultra vires (beyond the powers) the Constitution. In 2018, a Constitution Bench allowed the entry of women irrespective of age into the Temple on the grounds that the ban violated the fundamental right of freedom of religion as per Article 25 of the Constitution. The provision restricting entry of women in the state legislation was struck down and deemed unconstitutional.

Transformative nature of the Constitution

The changing circumstances of the socio-political fabric of a modern, democratic and secular nation require an intellectually liberal approach towards constitutional interpretation. The same ought not to be limited solely to the 'legislative intent' argument and at the same time, must not transgress the core ideals of constitutional value. The contemporary approach towards interpretation of the Constitution is that of the 'living tree', with judges shouldering the responsibility of updating the Constitution so that it keeps pace with changing times.
The Sabarimala judgment is a watershed moment in the history of affirmative action as it has greased the wheels of social integration and breathed life into feminist jurisprudence. The judicial attitude reflected through this verdict has reviewed the status of the vertical relationship between the State and its subjects. Thereby, it asserts the opinion that rights under Part III are recognised by the Constitution, but are not created by it. These rights are inherent, sacrosanct and characteristic of constitutional integrity.

The relevant constitutional provisions depict clearly that Article 25 bestows freedom of conscience upon every person. It also empowers the State to legislate in order to regulate religious practice so as to facilitate reform. This may include throwing open Hindu religious institutions of public character to all classes and sections of this community.

This case can be fathomed by a provocative insight into what is 'justice' in the constitutional scheme of things. Is it about preserving status-quo in compliance with codified positive laws or is it an unconventional push towards a progressive interpretation of the same laws which requires harmonising their interpretation and thereby, pushing for reform?

Revisiting Shah Bano & Navtej Singh Johar

The petitioners in the present case registered their democratic protest asserting that regressive interpretation of scriptures could not be used for prolonging discriminatory practices based on the biological state of a person. This litigation has been a quest for judicial intervention to restrict dogmatic practices in the alleged pursuit of religion.

It was imperative for the Supreme Court to consciously give itself the power to examine what constitutes an 'essential practice' as part of religion and is hence, entitled to protection under Article 25. The apex court concluded that exclusion of women of menstrual age from the Temple was not an essential practice as per the Hindu religion. Moreover, the Court was constructive in holding that the celibate nature of Lord Ayyappa, as per sacred scriptures, did not ipso facto (by the fact itself) justify the exclusion of women of menstruating age from worshipping in the Temple. This approach of exclusion is akin to the constitutionally forbidden practice of untouchability as per Article 17. Denying women entry into places of public worship solely on the basis of their physiological state is not the mandate of the Indian Constitution and transgresses the spirit of 'right to equality' under Article 14.

The Sabarimala judgment aides the doctrine of social inclusion by reading profoundly into the meaning of 'life and liberty' under Article 21. Through this judgment, the Court asserted that it is the keeper of constitutional conscience and shall not be herded by circumstantial duress or popular morality.

The decision to legitimise diversity of sexual orientation among consenting adults in the case of Navtej Singh Johar vs. Union of India (2017) has also been a disruptive and progressive approach adopted by the Supreme Court. The contentious issue of homosexuality was loathed and frowned upon unanimously by all religious communities in India and they vehemently opposed the petitioners in their endeavour towards securing justice for the lesbian, gay, bisexual, transgender and queer (LGBTQ) community.

By holding that the LGBTQ community is entitled to equal protection before the law under Article 14, the Supreme Court expanded 'inclusiveness' into the legislative and social fabric of India. Moreover, by striking down Section 377 of the Indian Penal Code (which criminalised unnatural sexual activities) as unconstitutional, the Court also asserted that public or religious morality would not override individual autonomy. This verdict too expanded the scope of Articles 14 and 21 and reaffirmed the ideals of a pluralistic and inclusive society.

A constitutional revolution

The Sabarimala judgement is a bold and unabashed narrative. The Supreme Court has adopted a reformist and interventionist approach by upholding human dignity and equal entitlement to worship for all individuals. This disruptive and empowering verdict has tightened the noose around what would earlier easily pass off as an 'essential religious practice' and has developed a test to establish the veracity of such claims thereby minimising the scope for discrimination of any form practiced under the wrongfully interpreted sanctions of religion.

The Supreme Court acknowledged the transformative nature of the Constitution and asserted it's character as that of a 'living document', carving out a niche for progressive interpretation and reformative approach way back in 1983 wherein Justice PN Bhagwati stirred up a constitutional revolution by pushing for reform in National Textile Workers Union Vs. P.R. Ramakrishnan, 1983 as stated below:

"We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must, therefore, constantly be on the move adopting itself to the fast changing society and not lag behind. It must shake off the inhibiting legacy of its colonial past and assume a dynamic role in the process of social transformation."

Constitutional freedoms ought not to be inhibited by the diktat of social norms or popular morality. The judiciary must deliver the necessary push to act as an agent of social change; this push greases the wheels of evolution and social justice. Legislative sanction must not be used to enforce majoritarian morality.

Judicial decisions of today ought to steer us forward, striving for substantive equality, giving due recognition to naturally occurring differences and creating the rightful niche for strengthening individual autonomy of all groups, with special emphasis on the rights of women.
(Ayesha Jamal is an Advocate in the Supreme Court of India and the  High Courts of Delhi and Jabalpur. Views are personal.)