Indian Young Lawyers Association V. State Of Kerala (Case Analysis)

“The State is no position to be, nor should it become, the arbiter of religious dogma”

Justice Iacobucci, Syndicat Northcrest v. Amselem[1]

India is a secular country [2] where all religions have endowed with the freedom of religious practice as a major right under Article 25 and 26 of the constitution.[3] The questions of the religious dispute are to be decided by the courts. However, the court in further progression of its decisions has reshaped the course of these rights which presently are increasingly dependent upon the optional intensity of the court than the matter of right given to a person. The legal executive has built up a few weapons, for example, religious denomination, essential religious practice test (hereinafter ‘ERPT’) to decide religious questions at its accord.

Such an approach of the court is deteriorating the impact of Art.25 and 26. The major suffer from such approach was evident in the recent case of Indian young lawyers association v. the State of Kerala[4]   (hereinafter as ‘Sabarimalacase’) where the court lifted the hundreds of years old custom limitation, imposed on the ladies matured between 10-50 years from going into the sanctuary premises on the account of fundamental rights violation of women, in the blink of an eye.[5]  Unsurprisingly, the court used all its own developed and interpreted weapons to justify its decision.

The Author in this note analyzes such a discretionary instrument taken up by the court to reduce the impact of freedom of religion in the context of the ‘Sabarimala’ case.

The Analysis

I Religious denomination

Situated at Pathanamthitta district of Kerala, Sabarimala temple is devoted to Lord Ayyappa divinity that as per the devotees is of ‘Nastika Brahmachari’ nature and to keep up this immaculateness of god the limitation was forced as they believe that section of period matured ladies will abuse chastity type of the god.[6] The adherents of Lord Ayyappa asked concerned practice substantial under the Art. 26 of the constitution set them as a religious denomination. However, the court rejected such a claim which in the author’s view was a wrong finding.

Religious denomination word hasn’t explained anywhere in the constitution so the peak court thought of three essentials to be satisfied to get insurance under Art. 26. These were Common Faith, Common Organization, and distinctive name.[7] Presently, for Sabarimala’s situation, every one of these necessities was satisfied despite this denomination status wasn’t allowed to the followers.[8] The court took advantage of wide ambit and ambiguities lies in the form of religious denomination.

Coming on to the requirements, common faith as held by the court should be distinct or peculiar to its followers which should work as a common thread to unite all the followers.[9]Here the ‘Nastika Brahmachari’ character of lord Ayaappa was a peculiar feature. Moreover, after the S.Mahendran v.  State of Kerala[10], Where the court justified this practice, no objection was raised by any concerned women. Even when PIL was filed in this case the women campaigned in support of this practice.[11]

Further, all the temple administrations were managed by a separate board.[12] Therefore, establishing the subsequent necessity, common organization too. Admittedly the followers didn’t have any distinctive name. However, the apex court itself in several cases has granted distinctive names to groups based on the names of followers and their spiritual well- being i.e to the followers of Ramanuja[13], the followers of Madhwacharya[14], the followers of Vallabha[15], the Christina Sufis and the followers of Sri Ramakrishna[16]by saying that they share a common belief and faith.

Conspicuously, in this case, there was a common belief that was also peculiar in nature. Further, as stated by the apex court the religious questions always demand a liberal approach from the judiciary[17], however; in this case, the contrary view was taken up the court which was justified under the wide religious denomination aspects.

Prior also the court has attempted to decipher religions to suit their whims. In Shastri Yagnapurushdasji v. Muldas[18] where satsangis group claimed religious denomination recognition was turned down by the court by saying that they have framed their religion on the odd notion, misjudging and complete numbness of the lessons and theory of Swaminarayan himself. The court here differentiated between religion and superstition while it has been held by the legal executive itself that what is a religion to me maybe a pure dogma and superstition to others.[19]

In this manner; all religions ought to be seen from their adherent’s points of view. The legal executive has additionally expressed by and large that mainstream judge will undoubtedly acknowledge by the conviction of that concerned religion, not by its own conviction.[20] However, in Sabarimala case, the court seemed to rely only on its finding rather than on the belief of followers (as the above discussion suggests). This in turn needless to say deteriorating the impact of right to religion immensely.

II. Essential Religious Practices

While the above discussion gives a hint about how the right to religion has become contingent upon the Court’s discretionary power. The evolvement of essential religious practice is also an addition in this discretionary power of the court. Essential religious practices are those practices that enjoy complete autonomy under Art.26 (b) and such practice can’t have interfered in any circumstances.[21]

In the current case, the supporters asserted this exclusionary practice as an essentially religious practice, however; the apex court dismissed this claim despite the satisfaction of all pre-conditions. One of the significant disadvantages of the ERPT is its constantly evolving nature which leaves enough space for the court’s optional force. ERPT is a court made test and finds no extension under the constitution. the court has limited religious freedom by such a test as now one needs to demonstrate that whether such practice is a quintessence to his/her religion else he/she would be halted from doing such practice.

One of the features of this test is asserted practice ought to be in presence since the introduction of the religion.[22] Here, this practice was also in presence since the inception of religion. Besides, an essential practice is on which religion has built and established.[23] Here, celibacy was always an essential practice for the sanctuary as even lord Ayyappa before converging with the deity followed the 41-days Vratham a work on during which a man needs to get himself far from all the common joys and ladies people including a sister, mother, and girl so he can accomplish Brahmachari identity.[24]

Here, the court contended that there is no scriptural proof to demonstrate that exclusionary practice was an essential religious practice.[25] While the lord Ayyappa himself performed the 41-days Vratham to personate the Brahmachari character such inquiries add up to cause a stir over the Brahmachari status of lord Ayyappa.[26]

Also, this test can’t be the sole criterion to dismiss or acknowledge the practice as applying this harsh practice like Sati, endowment passing, and caste discrimination would prevail since they discovered their legs in religious text. Thus, the sole reliance on this getaway course part of ERPT ought not to be surrendered.

The court in an earlier decision has stated that essential practice test should always be seen as to whether it would be regarded as an essential practice by that community or sect and will be based on the conscience of evidence given by them[27] while followers were in unanimous support of the practice the court in its selective conscience approach rejected such view.

Religion can’t be rationalized neither it ought to be because it’s a matter of faith in the presence of something which we can’t see it’s just our faith that causes us to do the practices. The constitution has also recognized such belief by entrusting opportunity of religion to its residents. However, the judiciary tends to rationalize the religion as it can also be evident from Justice Ramaswamy statement in A.S. Narayana Deekshitulu v. the State of A.P[28] where he expressed “ultimate aim of religious freedom is not to protect beliefs and practices but rather to establish a utopian world where religion is brought in consonance with social and cultural demands.” The introduction of ERTP is a further step in such direction as the essential practices doctrine was a derivative discourse of the colonial-era doctrine of ‘justice, equity, and good conscience.[29]

All things considered, the court with the advancement of ERPT has guaranteed a more noteworthy capacity to shape the religious freedom of an individual. As Derrett, in his composition summed up that “the Indian courts can easily discard any non-essential practices based on its own satisfaction and deprive it of constitutional protection”.[30] And unfortunately, the Sabarimala case also became an example of such greater power.

Further, the introduction of the “Constitutional Morality” concept by the court to justify its say evidenced the same. Constitutional Morality was introduced by drawing a far-fetch analogy between the word ‘public’ given in article 26 and the word ‘ people’ in the preamble. While the drawing of this analogy is itself very vague and the interpretation of the concept by the court was even vaguer. Constitution Morality was first introduced in the constitutional assembly by Dr B.R. Ambedkar however, particularly in reference to the right to equality[31] which now has been outlined in the constitution in the form of articles 14[32], 15[33] , and 16[34].

In recent days the use of constitutional morality has become much frequent in cases like Navtej Singh Johar v Union of India case[35] , Suresh Kumar Koushal & Anr. vs Naz Foundation and Ors[36]. However, in these cases, the use of this concept was justified since essentially the court was dealing with the right to equality of third gender people.

However, in this concerned case, the interpretation was wrongly adjusted since the current restriction should never be seen from the perspective of rule of law which makes it restriction based on sex; this should be seen within the scope of religious right under the article 25 and 26. Further, it is also worth noting that our constitutional drafters intended to keep part III of the constitution as well as other laws away from the ambit of article 26.

As in the earlier drafted proposal of clause 14(which later become article 26), the phrase ‘subject to general law’ was included which was removed by the assembly after a comprehensive discussion.[37] Thus, denoting the intention of our established drafters very clear on this aspect. Therefore, it is not wrong to say that the concerned judgment of the court was not only against the right to religion of followers but also against the intention of our founding fathers.

Moreover, the top court in past cases like Sardar Syedna Taher Saifuddin v. the State of Bombay[38] has justified exclusionary practices; in this case, the court upheld the validity of ex-communication practice. Further, in Sri Venkataramana Devaru & Ors v. State of Mysore & Ors.[39]Case the court itself has stated that “certain kinds of restrictions imposed on the entry in the temple are valid and are not per se unconstitutional”.      

Conclusion

In the US, freedom of religion is regarded as first freedom because it is quintessential for the democracy of the nation[40] as stated without such freedom a citizen cannot contribute to the welfare of any democratic society.[41] However, in India, as the above discussion suggests such freedom is becoming the subject of judicial discretion which violates their freedom of religion and curtails their liberty as well. Therefore, it’s high time for the courts to reconsider their approach for the welfare and liberty of the people and this paper is a small contribution from the author in the direction of this realization.

Shivam Mishra from Dr. Ram Manohar Lohiya National Law University, Lucknow

“As a law student I have my deep interests in writing and reading particularly about the constitution law. I believe in writing with the sole emphasis on bringing a change in society. To be precise  I believe in ” Write to change” rather than simply “write to analyze”


[1] Syndicat Northcrest v. Amselem, (2004) 2 SCR (Canada), 576.

[2] The Constitution of India 1949, Preamble.

[3] The Constitution of India 1949, Article 25 & 26.

[4] Indian Young Lawyers Association and Ors. v. The State of Kerela, 2018 SCC OnLine SC 1690.

[5]  Manveena Suri,  Sabarimala Temple: India’s Supreme Court lifts ban on women entering the shrine.

CNN (Sept. 28, 2018), https://edition.cnn.com/2018/09/28/asia/india-temple-women-banned-intl/index.html

[6] Correspondent,  The Economic Times (July 25, 2018), https://economictimes.indiatimes.com/news/politics-and-nation/celibate-nature-of-lord-ayyappa-of-sabarimala-temple-protected-by-constitution-sc-told/articleshow/65137065.cms?from=mdr.

[7] The Commissioner, Hindu religious endowment board, Madras v. Sri Lakshmindra tirtha Swamiar of Sri Shirur Math,  (1954) AIR SC 282; S.P. Mittal v.Union of India, (1983) 1 SCC 51; Sri Venkataramana Devaru and Ors. v. State of Mysore and Ors., (1958) AIR SC 255

[8] Indian Young Lawyers Association and Ors. v. The State of Kerela, 2018 SCC OnLine SC 1690

[9] Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors., 2018 SCC OnLine SC 1690; N Ramalingayya v. The Commissioner of Charitable and Hindu Religious Institutions and Endowments, (1971) AIR AP 320;

[10] S. Mahendran v The Secretary, Travancore Devaswom Board, Thiruvananthapuram case, (1991) SCC Online Ker 43.

[11] Correspondent, #ReadyToWait: A campaign to reclaim Hindu temples and traditions  Indiafacts( Aug. 31, 2016)http://indiafacts.org/readytowait-campaign-reclaim-hindu-temples-traditions/.

[12] Swapna Raghu Sanand, Sabarimala Temple Case: Why ‘Religious Denomination’ is key to women’s entry debate in Supreme Court,  Financial Express(July 24, 2018), https://www.financialexpress.com/india-news/sabarimala-temple-case-why-religious-denomination-is-key-to-womens-entry-debate-in-supreme-Court/1256427/.

[13] The Commissioner, Hindu Religious Endowment Board, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur math, (1954) AIR SC 282

[14] The Commissioner, Hindu Religious Endowment Board, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur math, (1954) AIR SC 282

[15] Tilkayat Shri Govindlalji Maharaj v. the State of Rajasthan, (1963) AIR SC 1638

[16] Bramchari Sidheswar Shai v. State of West Bengal,(1955) 4 SCC 646.

[17] S.P. Mittal v. Union of India, (1983) 1 SCC 51

[18] Shastri Yagnapurushdasji v. Muldas 1966 SCR (3) 242.

[19] Justice Chinappa Reddy,  S.P. Mittal v. Union of India, (1983) 1 SCC 51;  Justice Latham, Adelaide Co of Jehovah’s Witnesses Inc v Commonwealth, (1943) 67 CLR 116

[20] Ratilal Panachand Gandhi v. the State of Bombay, (1954) SCR 1035, Jamshedji v. Soonabai,(1909) 33 Box 122, Veerabhadran Chettiar v. E.V. Ramaswamy Naicker, (1959) SCR 1211, Bijoe Emmanuel v. the State of Kerala, (1986) 3 SCC 615.

[21] The Commissioner, Hindu religious endowment board, Madras v. Sri Lakshmindra tirtha Swamiar of Sri Shirur Math,  (1954) AIR SC 282

[22] Acharya Jagdishwaranand Avadhuta v. Commissioner of Police, (2016) 16 SCC 788.

[23] Haji Ali Dargah Trust v. Noorjehan Safia Niaz, (2016) 16 SCC 788.

[24] Ram Kinkar Singh, Sabarimala temple: Here is why devotees of Lord Ayyappa are protesting in Delhi, India Today( Oct 15, 2018), https://www.indiatoday.in/india/story/sabarimala-temple-here-is-why-devotees-of-lord-ayyappa-are-protesting-in-delhi-1368109-2018-10-15.

[25] Indian Young Lawyers Association and Ors. v. The State of Kerela, 2018 SCC OnLine SC 1690

[26]  Justice Indu Malhotra, Indian Young Lawyers Association and Ors. v. The State of Kerela, 2018 SCC OnLine SC 1690.

[27] Tilkayat Sri Govindlalji Maharaj v. the State of Rajasthan, (1963) AIR SC 1638.

[28] A.S. Narayana Deekshitulu v. State of A.P (1996) 9 SCC 548

[29] Ronojoy Sen, The Indian Supreme Court And The Quest For A “Rational” Hinduism, 1 SAHC, 86, 88 (2009).

[30] J. DUNCAN M. DERRETT, RELIGION, LAW AND THE STATE IN INDIA, 447 (1999).

[31] ANDRE BETEILLE, ‘Constitutional Morality’ (Economic & Political Weekly, Vol. 43, pp. 35-42, 2008) (Aug 5, 2019), https://www.jstor.org/stable/40278025?seq=1#metadata_info_tab_contents.

[32] The Constitution of India 1949, Article 14.

[33] The Constitution of India 1949, Article 15.

[34] The Constitution of India 1949, Article 16.

[35] Navtej Singh Johar v. Union of India, (2018) 1 SCC 791.

[36] Suresh Kumar Koushal & Anr. v. Naz Foundation and Ors., (2014) 1 SCC 1.

[37] Constitution Assembly debates ( Volume III 1st May 1947).

[38] Sardar Syedna Taher Saifuddin Saheb v. the State of Bombay,(1958) AIR SC 253.

[39] Sri Venkataramana Devaru & Ors v. State of Mysore & Ors.,(1958) AIR SC 255.

[40] Roger Trigg, Freedom of Conscience and Freedom of Religion, 99 AN IRISH QUARTERLY REVIEW 407-414 (WINTER 2010).

[41] Roger Trigg, Freedom of Conscience and Freedom of Religion, 99 AN IRISH QUARTERLY REVIEW 407-414 (WINTER 2010).

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