THE GIST of Editorial for UPSC Exams : 01 October 2018 (An ongoing quest for equality)

An ongoing quest for equality 

Mains Paper: 2 | Judiciary
Prelims level: Sabarimala verdict
Mains level: The Supreme Court will soon have the opportunity to consider the differing opinions in the Sabarimala verdict 

Introduction 

• The Supreme Court delivered a 4:1 verdict on 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?
• 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.

Article 26

• The temple, they argued, enjoyed denominational status under Article 26 of the Constitution, which allowed it to determine for itself the manner in which it managed its religious affairs. 
• It prohibiting women of menstruating age from entering Sabarimala, they contended, is supported by the temple’s long-honoured custom.
• Lord Ayyappan is a “Naishtika Brahmachari”, allowing women aged between 10 and 50 years to enter the temple, it was claimed, would affect the deity’s “celibacy”. 
• The Travancore Devaswom Board, which administers the temple, further asserted, was supported by Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which states, “Women who are not by custom and usage allowed to enter a place of public worship shall not be entitled to enter or offer worship in any place of public worship.”
• The devotees of the Sabarimala temple, they found, were in no way distinct from the larger community of Hindu believers. 
• Consequently, the court also repudiated the validity of Rule 3(b), which, it said, was, at its core, discriminatory towards women.
• The rule had approached the court, the public interest petitions, she ruled, were not maintainable.
• Her concerns are undeniably valid and must animate future cases.
• The challenges to the practice had been entertained as far back as in 2006, and given that specific questions of far-reaching importance were posed to the Constitution Bench by reference, the majority quite correctly chose to deliver a verdict on merits.
• Justice Malhotra also ruled that the Sabarimala temple constitutes a separate religious denomination, and, therefore, the temple’s administrators were at liberty to make customary exceptions in matters of religious practice.
• This freedom is extended power to the temple to proscribe women from entering its precincts.

The essential practices doctrine

• The differing views between the majority and the dissenting opinions on the maintainability of the petitions and the denominational status of the temple are stark, the real nub of the controversy is elsewhere.
• It lies in Justice Malhotra’s withering and principled critique of the essential practices doctrine, through which the court has virtually assumed theological prerogative.
• In determining whether a purportedly religious command is constitutionally protected, the courts have sought to test whether such a belief is essential to that religion. 
• The CJI Misra found that the practice of excluding women aged between 10 and 50 years from the Sabarimala temple is dispensable, in that the “nature” of the Hindu religion would not be “fundamentally altered” by allowing women to enter the temple. 
• Although an examination of this kind is strongly backed by precedent, Justice Malhotra was especially critical of the approach. 
• The power of judicial review ought not to accord to courts the authority to judge the rationality of a matter of faith.
• The issue of what constitutes an essential religious practice,” she wrote, “is for the religious community to decide.”

Way forward

• Therefore, for Justice Chandrachud, the Constitution must be seen as a document that seeks to bring about a transformed society. 
• When a religious practice goes so far as to deny women equal status in society, when notions of purity and pollution are employed to perpetuate discrimination.
• The Constitution ought to mandate a shattering of the conventional divides between the private and the public.
• 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.
• In other words, discrimination couched as plurality cannot be allowed to undermine the Constitution’s basic “quest for equality”.
• 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. 
• 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.”

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UPSC Prelims Questions: 

Q.1) Consider the following statements:
1. Right to establish and maintain institutions for religious purpose is enjoyed by religious minorities only.
2. Right to conserve language, script or culture is enjoyed by religious and linguistic minorities only.
Which of the statements given above is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2
Answer:  D

UPSC Mains Questions:
Q.1)  Are religious exercises susceptible to conventional constitutional standards of justice and equality? Substantiate with your argument.