Justice Dipak Misra, who has just retired as Chief Justice of India (CJI), had a 13-month tumultuous tenure, during which turning-point judgments were delivered. In none of the judgments, CJI Misra was in the minority. Judgments he was a party to: decriminalised gay sex and upheld the validity of modified Aadhaar, scrapped the adultery law and upheld a person’s right to marry a person of his or her choice. Khap panchayats were held as not capable of interfering in marriages.
Further, there was a crackdown on mob vigilantism and lynching. Another judgment allowed women of all ages into the Sabaramala shrine. Many other instances can be cited.
The important judgments that CJI Misra delivered touched upon the political, personal, religious and economic life of the nation, its cultural mosaic and social beliefs and, moreover, the controversies they generated. Each judgment in the last few days has added a new dimension to Constitutional morality.
On September 28, 2018, the Supreme Court, in a majority opinion of 4:1, lifted the centuries-old prohibition on women from the age of ten to fifty years to enter the Sabarimala temple in Kerala. Some other shrines of worship also had restrictive practices, which have gone after protests.
These are shrines like Shani Shingnapur in Maharashtra and Haji Ali Dargah in Maharashtra.
The Supreme Court has allowed discrimination in religious places to be amenable, to be adjudicated upon by the court. Muslim women can now cite equality to question rationale in segregating women and men in several spheres like in a Nikah.
The main opinion, shared by CJI Misra and Justice AM Khanwilkar observed that the prohibition reduced freedom of religion to a “dead letter” and the ban was a smear on a woman’s individual dignity. CJI Misra further went on to say, “Relation with the Creator is a transcending one. Physiological and biological barriers created by rigid social dogma have no place in this.
The Chief Justice, who authored the opinion, held that the prohibition was founded on the notion that menstruating women are polluted and impure; that women, in this ‘procreative stage’, would be a deviation from the vow of celibacy taken by the male devotees of Lord Ayyappa for the pilgrimage.
Besides, the deity in Sabarimala is himself a ‘naishtika brahmachari’ or an ‘eternal celibate.’” CJI Misra held that the ban was actually a product of hegemonic patriarchy in religion. “On the one side, we pray to goddesses and on the other, women of a certain age are considered impure.
This ban exacts more purity from women than men.
The ban is discriminatory.” Justice DY Chandrachud in his separate but concurring opinion, was unsparing. To treat women as the children of a lesser God was to blink at the Constitution, he observed. He termed the social exclusion of women, based on menstrual status, a “form of untouchability”.
He observed that notions of “purity and pollution” stigmatised individuals. To exclude women was derogatory to an equal citizenship. He dismissed the argument that the prohibition was in keeping with the form of the deity and the vow of celibacy of the devotees. “It is assumed that the presence of women would deviate the celibacy and austerity observed by the devotees.
Such a claim cannot be constitutionally sustainable argument. Its effect is to impose the burden of a men’s celibacy on a woman and construct her as a cause for deviation from celibacy. This is then employed to deny access to spaces to which women are equally entitled,” Justice Chandrachud rationalised. “The notion that women cannot keep the vratham (vow of celibacy) is to stigmatise and stereotype them as “weak and lesser human beings,” he said.
The Chief Justice agreed with the view that the “mere sight of women cannot affect one’s celibacy if one has token oath of it. Otherwise, such oath has no meaning. Devotees did not go to the Sabarimala temple for taking the oath of celibacy but for seeking the blessings of Lord Ayyappa. Maintaining celibacy was only a ritual,” CJI Misra said.
The dissenting judgment has come from the only lady on the Bench, Justice Indu Malhotra, who said, “It is a matter of personal faith. India is a land of diverse faiths. Constitutional morality in a pluralistic society gives freedom to practise even irrational or illogical customs and usages.”
She further held that determination of what constituted an essential practice in a religion should not be based on the “personal views” of judges. She held that essentiality of a religious practice or custom had to be decided within the religion.
She said notions of rationality cannot be invoked in matters of religion by courts.
Justice Rohinton F Nariman in his concurring opinion held the right to practise religion, as claimed by the thanthris and worshippers, must be balanced with and yield to the fundamental right of women between the ages of ten and fifty.
In passing, CJI Misra observed, “By allowing women to enter Sabarimala temple for offering prayers, it cannot be imagined that the nature of Hindu religion would be fundamentally altered or changed in any manner.”
One must recollect that the unchallenged 67-year-old judgment of the Bombay High Court spent out its force and became lifeless on last Friday.
This judgment had held that personal law, religion customs, usages and beliefs are outside the ambit of fundamental rights of equality, life and dignity. Justice DY Chandrachud, in his separate opinion, held that the reasoning given in the Bombay HC judgment in the Narsu Appa Mali case was based on flawed premises. Immunising customs and usages like the prohibition of women in Sabarimala takes away the privacy of a person, the judgment said.
He also held that a deity in a temple does not have Constitutional rights. Fundamental rights are meant for individuals, not for deities or idols.
He was countering arguments that the right to preserve the celibacy of the deity in the Sabarimala temple was a protected Constitutional right.
This right of the deity extends to excluding women from entering and praying at the temple. Justice Chandrachud also held that the law recognises an idol or deity as a “juristic person which can own property and can sue and be sued in the court of law”.
But it “does not mean the deity necessarily has constitutional rights”.
The exclusion of women from the temple affects both the religious and civic rights of an individual, he concluded.
This judgment concerns us all as it deals with the fundamental issues of equality and is path-breaking in its own sphere. Justice Chandrachud calls for a balancing act between group rights and individual freedom.
From this, the judge infers that the right of a denomination must be in balance with the individual rights of each of the members. In the language of the judge, “It would be impossible to conceive of the preservation of liberal constitutional values while at the same time allowing group rights to defy those values by practising exclusion and through customs which are derogatory to dignity.”
It may be appreciated that each one of the important judgments calls for particularised attention and analysis. Constraint of space does not make such an exercise feasible.
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. jayantdas@hotmail.com )