Denial of Entry of Women to Religious Shrines: Constitutional Analysis

This article highlights the shortcoming of the Essential Religious doctrine and suggests alternatives to this approach that will promote women’s liberty and dignity, without interpreting what forms a part of the religion and without interfering into the religious beliefs of the community writes Simran Upadhyaya.

Introduction

The momentous judgement of Supreme Court in the Indian Young Lawyers Association v The State of Kerala case¹ is celebrated all across India for permitting women of ages 10 – 50 years to enter the Sabrimala Temple, and striking down the Rule² that prevented them from doing so. However, Sabrimala is not a one-off case where the Supreme Court emerged as sentinel on the qui vive to protect women’s rights. Few years back the Bombay High Court in Shani Shignapur Temple³ controversy and Haji Ali Dargah case⁴ held that denial of entry of women to places of worship violates the equality principles of our Constitution.⁵ All these judgements have propounded various legal arguments before arriving at such a conclusion. However, the discussion upon the essential religious practise doctrine (hereinafter, ‘ERP’), has been a common line of argument in the above-mentioned cases (excluding Shani Shignapur Temple controversy) and various other cases dealing with freedom of religion.⁶ This doctrine has brought about myriad conflicts within the Indian case laws, which has made scholars question its credibility.⁷ In light of such conflicting legal positions, this article highlights the shortcoming of ERP, suggests alternative tests to eradicate abhorrent practises, and safeguard individual dignity without interfering into the tenants of religion.

The paper is divided into five parts. Part I discusses the Constitutional provisions that provide for freedom of religion. Part II briefly summarises the three significantly topical judgements dealing with denial of entry of women to religious shrines. Part III deals with the origin of ERP, traces its transformation, and critically appraises the doctrine to be inconsistent to Indian secularism and legal pluralism. Part IV discusses the anti-exclusion principle put forth by J. Chandrachud, and the deference approach laid down Jaclyn Neo as alternative to replace the ERP. Finally, Part V concludes the paper with the premise that the combination of both anti-exclusion principle and the deference approach will uplift women’s rights and protect their dignity without having the need to interpret the essentiality of religious practices of a community.

THE CONSTITUTIONAL PROVISIONS

Religion in India is inextricably linked to social lives of individuals, where each individual due to its religious identity shares a complex relationship with its community and the State.⁸ Additionally presence of diverse cultures within the society makes the interaction of individuals or communities with the State even more complex since it is the State’s responsibility to respect each and every religion. Hence, Secularism as provided in Indian Constitution commands for equal respect towards all faith, and grants every individual the autonomy to either practise or not practise a religion.⁹ Further, to accommodate a society of pluralistic cultures and religions, the constitutional provision does not permit the state to prefer one religion to another.¹⁰

In order to abide by the obligation of equality towards all religion, our Constitution makers devised religious freedom clauses as envisaged under Article 25¹¹ and Article 26¹².

Article 25 provides right to profess and propagate religion, and freedom of conscience.¹³ However this right is subject to “public order, morality and health.”¹⁴ Additionally, Article 25(2)(a) allows State to make laws to regulate economical, political and financial and other secular activities associated with religious practices.¹⁵ Subsequently, Article 25(2)(b) also permits State to introduce social welfare legislations, such as opening temples for all classes of Hindu.¹⁶ Thus, Article 25 provides for freedom of religion, and State intervention is permitted only for activities dealing with secular part of the religion.¹⁷

Similarly, Article 26(b) guarantees freedom to religious denomination to manage matters of religion.¹⁸ Also, religious denominations are given the right to manage property in accordance to state-made law under Article 26(d).¹⁹

However, matters would not be easily resolved, by mere application of such Constitutional provisions.²⁰ Hence, the judiciary devised two tools of interpretation - A distinction between religious v secular and the essential religious practise test²¹ to lay down contours within which State can reform religious practices or denominations can manage their religious affairs without interfering into the rights of an individual. These tests have been specifically adopted such that the law making body remain true to the text of the Constitution that calls for State neutrality towards all religious faith.²²

THE CASE LAWS

In the Sabrimala Case, Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules 1965,²³ denied women of menstruating age from entering into the Sabrimala temple in accordance to an old age custom. The temple authorities argued that the Sabrimala Temple was built for the benefit of a particular religious denomination, which granted them constitutional autonomy to manage religious affairs under Article 26(b). However, the Court declared Rule 3(b) to be ultra vires, and concluded that the temple was was not just limited to a specific religious denomination, but was open to the entire Hindu population.²⁴ Further the religious temple could not be regarded as a religious denomination since it failed to satisfy the elements of common faith, common organisation, and a designation by a distinctive name.²⁵ Court held that exclusion of women entry to temples did not constitute as an essential religious practise to be protected by Article 25(1), since religious scriptures did not support the practise and eradication of denial of woman entry would not alter the character of Hinduism.²⁶

In the Haji Dargah case, the Trust justified their act of excluding woman from the sanctum sanctorum of the Dargah²⁷ under Article 25(1)²⁸ and 26(b)²⁹. However, the Bombay High Court rejected the Article 25(1) argument, since the Trust failed to establish that such an exclusionary practice was an “essential religious” feature of the Islamic tenant. Moreover, this prohibition was enforced only after 2011-2012 before which women were allowed into the temple;³⁰ thereby proving that the prohibition was not an old age custom to be regarded as an essential religious practise.³¹ It further rejected the Article 26(b) argument as the Dargah Trust was only entrusted with the responsibility to manage purely secular activities, such as giving loan, education etc and not to manage religious affairs.³² It was a public trust that was open to all.³³ In arguendo, the Court held that principles under Article 14,³⁴ 15,³⁵ 25(1)³⁶ would override even if Article 26(b) applied.³⁷ Hence, the court declared Haji Dargah Trust’s decision to disallow woman from entering into inner sanctum of Haji Ali Dargah as unconstitutional.

In the Shanti Satnagpur temple case,³⁸ a PIL was filed in the Bombay High Court to strike down a 400-year tradition of the temple, wherein women could not enter the inner sanctum of Shanti Satnagpur temple.³⁹ The Court immediately directed the State Government to take necessary steps such that women could access the inner sanctum of the temple, since it was their fundamental right to enter places of worship.⁴⁰

THE ESSENTIAL RELIGIOUS PRACTISE DOCTRINE

As evident from the above cases, ERP has been an important line of argument in disputes involving religion, gender equality, and fundamental rights etc.

The judiciary devised the ERP to delimit the contours of freedom of religion.⁴¹ Under this doctrine only beliefs and practices that are regarded as essential to freedom of religion is granted constitution protection.⁴² The doctrine of ERP was devised in 1954,⁴³ and ever since then has been heavily used by judges to discern a religion’s core identity, and has been equally employed in cases involving denial of woman entry to religious shrines.⁴⁴

The genesis of the phrase essential religious is found in the speech of Dr. BR. Ambedkar,⁴⁵ who observed that religion has a pervasive role over the social life of Indians, which commences from birth and continues till death.⁴⁶ Hence, the definition of religion should be constricted in such a way that it does not extend beyond rituals and practices which are “essentially religious”.⁴⁷ It is important to observe, Dr. Amedbkar uses the term “essential religious” and not “essential to religion.”

The intention behind using the phrase “essential religious” by Dr. Ambedkar was to segregate the secular activities from the religious activities,⁴⁸ and this idea finds its place in Article 25, where one’s right to religious freedom is subject “public order, morality and health”⁴⁹ and other provisions of Part III.⁵⁰

The judiciary in the Sri Shirur Mutt⁵¹ case, for the first time evolved the doctrine of ERP to draw a line between religious and non-religious matters. The issue before the court was whether State could control religious denominations. The Court concluded, the practices and beliefs inherently essential to religion will be protected under the Constitution, and essentiality will be gauged by referring to the doctrines of religion itself, and by considering those practices, which the community regards as essential.⁵² The ratio of Sri Shirur Mutt was followed in subsequent case of Ratilal v State of Bombay,⁵³ where the Court elucidated that no external authority has the right to determine essential parts of a religion.

However, few years later Ram Prasad Seth v State of UP⁵⁴ changed that narrative of ERP from what was initially envisaged. In this case, the UP Government had introduced regulations that prohibited bigamous marriages for those employed in the public sector. The petitioner argued that such a regulation violated his Article 25 rights, as it was imperative for Hindu families to have a son who would perform funeral rites of deceased father, and in certain cases bigamy seemed like the only way possible to have a son. The Court analysed the Hindu religious tenets and arrived at the conclusion that bigamy was not an essential part of Hindu religion.⁵⁵ Thus, the term “essential” shifted from classifying practices into religious and secular to qualifying the importance of a practise within a religion.⁵⁶ This minor change led to significant consequences since the entire narrative was not “Whether something is essentially religious”⁵⁷ but was instead “Whether is it essential to the religion?”⁵⁸

The ratio of Ram Prasad was again followed in Qureshi v State of Bihar,⁵⁹ where the court elucidated that sacrifice of a cows on the Islamic festival days did not amount to an essential religious practice for the Muslims.

The doctrine of ERP underwent further transformation under the dictum of the then C.J. Gajendragadkar. In Durgah Committee Ajmer v. Syed Hussain Ali case,⁶⁰ he pushed the ERP to another direction, where the successive courts were entrusted the responsibility to scrutinize religious tenets, and scriptures to segregate superstitious beliefs from religious practices such that the former is not granted constitutional protection under the garb of essential religious practice.⁶¹ Furthermore, in Tikayat Shri Govindlalji Maharaj v. State of Rajasthan⁶² the court narrowed down the application of ERP by formulating a three-prong test to define the ambit within which State can regulate religious matters-

“first, whether the practice in question is religious in character; second, if the first answer is in the affirmative, whether it can be recognised as an integral or essential part of religion; and third, whether there is substantial evidence adduced before the court as to the conscience of the community and the tenets of the religion.”⁶³

Therafter in the case of Sastri Yagnapurushadji v Muldas Bhudardas Vaishya⁶⁴ the court assumed the responsibility of reading scriptures to determine whether the practice is religious and if it constituted an essential part of the religion.

Thus, C.J. Gajendragadkar through his judgments combined the two tools of interpretation⁶⁵ into one single test comprising of ERP with certain modifications that allowed court to state not only when the Government could intervene but also decide which practice was worthy of constitutional protection.⁶⁶ In doing so, the Court made ERP an arbitrary tool of interpretation, which was subject to significant transformation with different factual conditions.⁶⁷

The adoption of the conflated three-step test as the doctrine of ERP is inherently problematic. First, it does not have backing from constitutional texts or from the principles envisaged by the constituent makers.⁶⁸ Second, Court has not been able to establish a rigorous method of determining of what stands for essential religious practice.⁶⁹ Due to absence of such methodology, court has arbitrarily relied on colonial writings,⁷⁰ English language sources⁷¹ or has not taken into account the testimony of the affected party⁷² or relied upon evidences of the affected parties,⁷³ which has resulted in inconsistent judgements.⁷⁴ Fourth, the inquiry under ERP disrupts the thin line of difference between “secular intervention and religious autonomy”.⁷⁵ Fifth, over intrusion into religious matters, destructs religions from internally reforming and regenerating themselves.⁷⁶ Six, scholars detest ERP test for being redundant since there are alternative avenues present in the Constitution itself to strike down the laws sanctifying abhorrent practices.⁷⁷ Seventh, permitting the Court to decide the essential practices of religions, increases the scope of the decision being marred with personal and moral beliefs of the judges.⁷⁸

Above all, ERP goes against the basic premise of Indian secularism and pluralism. To commit to Indian pluralism, the Constitution provides for religious group autonomy.⁷⁹ The excessive usage of ERP by the judiciary has effaced autonomous religious groups possibility of self-regulation and self-identification.⁸⁰ The moment the judiciary uses ERP to evaluate religious doctrines to determine the essentiality; it fails to recognize diverse marginalized traditions within a religion and provides scope for building a monolithic belief system.⁸¹ Indian secularism provides for equality for religion, but simultaneously permits State intervention in cases of social reforms when individuals’ civil liberties are at sake.⁸² However, it does not provide for the courts to determine the practices essential to a religion. The role of the judiciary as a Secular Court is to interpret laws and resolve disputes between State and individual or religious denominations pertaining to religious freedom clauses,⁸³ instead of acting as a moral arbiter to define the contours of religion. As a result, court adopts a paternalistic outlook in matters of religion, which defies the principle of liberal democracy.⁸⁴

ANTI-EXCLUSION PRINCIPLE AND THE DEFERENCE APPROACH

The growing interference by the judiciary under the pretext of ERP made J. Chandrachud comment that the court has unnecessarily adopted a religious mantle.⁸⁵ In his concurring opinion, in the Sabrimala case, he highlighted the shortcomings of ERP and suggested an alternative – “The Anti-Exclusion Principle.”

The Anti-Exclusion principle focuses on dignity of individual, an essential feature of the Preamble to the Constitution.⁸⁶ According to him, under this principle, a practice, which violates human dignity and prevents access to basic necessities, should be struck down, even if the practice seems to be protected under the clauses of freedom of religion.⁸⁷ This principle ensures diabolical practises are eradicated without contemplating over the essentiality of practices and by allowing judiciary to be true to the Constitutional liberal values.⁸⁸

Chandrachud’s anti-exclusion principle was borrowed from scholar Gautam Bhatia, who put forth the concept that Constitution limits the power of communities from interfering with individual’s right to participate in social, cultural and economic life.⁸⁹

These limitations are found in Article 15(2) and Article 17. This logic animates from the reasoning of the dissenting opinion of CJ. BP Sinha in Sardar Syedna⁹⁰ case. In this case, majority judges found that the excommunication legislation to violate Dawoodi Bhora Community’s right to religious freedom⁹¹ and right to manage religious affairs.⁹² However, BP Sinha resonated the application of Article 15(2) and 17 to the principle of excommunication that converted an individual into an untouchable within his community. In his words “This legistation… if anything, furthering a person’s right to freedom of religion under Article 25.”⁹³

J. Chandrachud applied similar logic by expansively reading Article 15(2) and 17 into the religious freedom clauses, which forms the very basis of anti-exclusion principle.⁹⁴ According to him, every religious denomination should balance their rights to the rights of its members, so that every individual is provided with a platform of self-attainment and determination.

Likewise, J. Chnadrachud looked into the question of whether the old age custom that denied woman entry to Sabrimala temple violated Article 17. After surveying constitutional debates, he arrived at the conclusion that usage of the phrase ‘in any form’ under Article 17 does not only indicate caste-based untouchability, but is associated with the notions of purity and pollution.⁹⁵ Hence, excluding menstruating women from entering the Sabrimala Temple was also another form of untouchability analogous to concepts of purity and pollution.⁹⁶ Thus, implying that practices that are in contravention of Article 17 should be struck down despite the autonomy granted to religious denominations.

Thereafter he observes that there might be practices that exclude people from the community on other factors, which might not associated with the factor mentioned in Article 17. In such cases, he suggests Article 15(2) will apply.⁹⁷ However, Constitutional debates prove that places of worship do not fall under Article 15(2).⁹⁸ To this, scholar Suhrith Parthasarathy argues that the second part of Article 25 subjects it to other provisions of Part III, so a religious practice which falls foul of Article 15(2) can be easily struck down under it.⁹⁹ While practices of religious denominations that enjoy protection under Article 26 are not explicitly subject to other provisions of Part III. Here, Suhrith argues that in cases of conflict between two fundamental rights, courts have tried to harmonise the clashes by following the intention of the constitution makers.¹⁰⁰ Additionally, at the cost of protecting rights of religious denomination under Article 26, a person’s right to equality cannot be violated.¹⁰¹ Thus the acts should be balanced in such a way religious denominations are given their freedom without affecting the liberty of individuals such that the foundation of the Constitution is not disrupted.

Thus, J. Chandrachud’s application of anti-exclusion principle truly reflects transformative vision of the Constitution. However, this principle is restricted in its scope since it deals with conflicts between an individual and religious denomination, but does not provide for a conflict between State interest and religious rights. In such cases, the deference approach propounded by Jaclyn Neo is of much importance.

Jacly Neo adopted the deferential approach of Durham and Schraffs to defining religion, in case of conflict between an individual’s religious right and law introduced by the State trying to curb such a right.¹⁰² The main feature of this approach is that it does not inquire into whether a practise is essential but rather raises the question whether state was justified in imposing such a restriction on an individual’s religious freedom.¹⁰³ This approach compels Courts to respect the self-definition of religious groups concerning their beliefs and practices, unless circumstances provide otherwise.¹⁰⁴

The deference approach is a two step test - First, a court should accept self-definition of a group unless there are compelling reasons, such as fraud, lack of sincerity that prevent it from doing so.¹⁰⁵ Second, the court should use the tools of balancing, compelling reason inquiry, or proportionality analysis to see whether State was justified in curtailing such freedom of religion.¹⁰⁶

However, this approach unlike the anti-exclusion principle does not focus on intra-religious disputes. Hence, in order to overcome the shortcomings of both the test, it is imperative that the Court uses either of the tests depending upon the nature of religious dispute, so that it can completely do away with the arbitrary ERP test.

Unlike the ERP both the approaches pay homage to the principles of the Constitution. These approaches revolve around the concept of balancing fundamental rights in case of conflict between the two, a methodology employed by the courts time and again.¹⁰⁷ Moreover, the approaches adhere to the transformative vision of the Constitution, which regards the individual as the basic unit of the Constitution and structures laws to promote individual dignity.¹⁰⁸

Above all, the dignity, liberty and equality of the individuals are underscored in Part III of the Constitution. A cursory glance over the fundamental rights (Articles 12- 35) establishes how majority of the rights have a similar undercurrent - To promote the liberty and dignity of the individual. The Part III provisions may more weightage to individuals’ freedom than to other ancillary rights, such that even freedom of religious clause places the individual above religion, to protect his personal liberty and well-being.¹⁰⁹ This means the intention of our constitution as evident from Part III has always been to protect individuals’ fundamental rights before other rights.

Consequently, both the approaches pay obeisance to individuals’ dignity and liberty. Thus, employing these tests acts as an added advantage in disputes between women’s freedom and religious rights, as it will always place women’s dignity and liberty over other abhorrent religious practices. This will ensure speedy justice, since court will not find itself in a web of seamlessly complex questions but will strike down degrading practices hampering woman rights.

CONCLUSION

Religion plays an important role in our everyday life, such that certain ignoble practices are normalised under the garb of religious autonomy. However, over the past few years, women rights advocates have taken such matters before the court. Even though the two cases¹¹⁰ dealing with denial of women entry into religious shrines have provided favourable results for women even after employing ERP, but it is not a full proof mechanism, as courts assume the role of moral arbiter and unnecessarily interfere into the autonomy of religious organisation. In absence of any rigorous methodology, this doctrine permits judges to meddle with the religious doctrine, which yields contradictory results and is oft marred with personal biases.

It is imperative that the courts keep the ERP in the past and employ a combination of anti-exclusion principle and deference approach that begins its inquiry from the lens of Part III provisions, rather than deciding upon the essentiality of the practise. This will ensure that women’s dignity and liberty is upheld by removing all other ignominious practices. Further, this approach will protect women’s rights of equal participation within religious communities, since judges would be bound by the constitutional vision of equality irrespective of the practise that claims to gain legitimacy from religious doctrines.