An ongoing quest for equality

The Supreme Court will soon have the opportunity to consider the differing opinions in the Sabarimala verdict
On September 28, the Supreme Court delivered a 4:1 verdict, in Indian Young Lawyers Association v. State of Kerala , throwing open the doors of the Sabarimala temple to women of all ages. At stake were several thorny questions. How deep must the judiciary’s inquiry go in deciding whether to intervene in matters of religion? Should the court disturb ethical choices made by a community of believers? How must the integrity behind these practices be judged? Are religious exercises susceptible to conventional constitutional standards of justice and equality? As the four opinions delivered by the court show us, these questions are open to diverse interpretations. While the majority agreed that women of all ages should be allowed to freely access the Sabarimala temple, each of the court’s judgments, including Justice Indu Malhotra’s dissenting opinion, speaks to a different, and constitutionally plausible, vision.
How the court chooses to take forward the ideas professed here will prove hugely telling. Will judges continue to don ecclesiastical robes in testing what manners of religious practices deserve constitutional protection? Or will the court steer itself towards a more radical, yet constitutionally consistent, path, by predicating its analysis on equal concern, by breaking, as Justice D.Y. Chandrachud wrote in his concurring opinion, the “shackles of social hierarchies”? In this, the value in her opinion can scarcely be doubted. After all, the essential practices doctrine has allowed the Supreme Court to arrogate to itself the powers of a religious pontiff. But, equally, as Justice Malhotra notes, there may well be practices that are so pernicious and oppressive which might well demand the court’s interference. These, in her words, would include a “social evil, like Sati”. Ultimately, therefore, the dissenting opinion begs a question. It leaves us wondering how far the right to freedom of religion can really extend. And to what extent a group’s collective liberty can trump an individual’s equal right to freedom of religion. Would, for example, denial to women of the right to serve as priests, or to be ordained as bishops, be considered oppressive? Here, Justice Chandrachud’s judgment offers an appealing way forward. The assumption by the court of a religious mantle, he admitted, has led to a muddling in the court’s jurisprudence, and, as a result, significant constitutional concerns have been skirted. What needs answering, in his belief, is whether the Constitution “ascribes to religion and to religious denominations the authority to enforce practices which exclude a group of citizens”. The court, therefore, he has suggested, must look beyond the essential practices doctrine and examine claims by applying a principle of “anti-exclusion”. Or, in other words, “where a religious practice causes the exclusion of individuals in a manner which impairs their dignity or hampers their access to basic goods, the freedom of religion must give way to the over-arching values of a liberal Constitution.” The real test, in Justice Chandrachud’s opinion, is to assess whether an exclusion founded on religious belief, essential or otherwise, encroaches on a person’s basic right to dignity. Or in other words, discrimination couched as plurality cannot be allowed to undermine the Constitution’s basic “quest for equality”. The Supreme Court will soon have the opportunity to consider, once again, the differing visions offered in Indian Young Lawyers Association . For instance, when it hears arguments on the correctness of its 1962 judgment striking down the Bombay Prevention of Excommunication Act of 1949, which recognised the Dai-al-Mutlaq’s powers to excommunicate persons from membership of the Dawoodi Bohra community, the court might well want to refer the case to a bench of seven judges or more and re-examine altogether the continuing validity of the essential practices doctrine. When it does so, it might also want to heed Justice Chandrachud’s words that “the Constitution exists not only to disenable entrenched structures of discrimination and prejudice, but to empower those who traditionally have been deprived of an equal citizenship.”
Suhrith Parthasarathy is an advocate practising at the Madras High Court

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