Sabarimala Temple Entry Case: Questions Before the Court

This was first written by me for this blog.

The recent decision of the Supreme Court to refer the Sabarimala Temple entry issue to a larger constitutional bench has thrown up a lot of fascinating questions for the court to decide. In the communal rights jurisprudence that has so far been established by the Supreme Court in a series of cases such cases are put through examination on these three bases 

1. Whether a claim is a religious claim at all or not.
2. If yes, whether it forms an ‘essential’ part of the religion or not.
3. If it is found essential, whether it is in public interest or not.

Broadly in the questions formulated by the bench in the referral order are in conformity with these established tenets.

Question No.1: Exclusionary Practice & Discrimination

The basis upon which women between the age of 10 and 50 are denied entry into Sabarimala is upon an archaic and regressive conception that menstruating women are impure and that the presence of women could result in deviation from celibacy. The women in this method are essentially prevented merely because of their sex and physiological reason. In particular this practice prevents the menstruating women from entering the precincts (which presumably is the intention behind the expression ‘at any stage of time’ occurring in Rule 3(b)). Of the entire hindu population only menstruating women are prohibited here. Though it can be argued that women who are below the age of 10 and above the age of 50 are permitted it cannot be termed as a discrimination which is based only upon sex, as it does not discriminate all women. This cannot find any support within the discriminatory laws jurisprudence since only women can menstruate and therefore it is a discrimination which is based only on sex. 

Moreover, it is a well established law that it is the impact of the law which must determine the and not otherwise. The essential result of this prohibition is the exclusion of a major section of women’s population from exercising their fundamental right to practise their religion. Given the recent articulate expansion of arbitrariness doctrine under Article 14 to strike down state actions by the Supreme Court in the recently delivered judgement on Triple Talaq, the prohibition should also pass the bar under it. Arguably, as it has been explained in answer to question 5, the impugned rule 3 (b) itself is ultra vires the parent act, the prohibition cannot be said to be based on any valid law making it arbitrary and hence unconstitutional.

Question No.2: Essential Practices Test

This a highly controversial test developed by the Supreme Court to define the contours of protection offered for religious rights offered under the Constitution. First developed by the court in the Religious Endowments Case (AIR 1954 SC 282) this is a highly intrusive test which distinguishes those practices which form the ‘essential’ part of the religion and those that are extraneous to it. The distinction is to confer the constitutional privileges only to those practices which are found essential. As one would expect, the decision of what constitutes those ‘essential practices’ is decided by the court. This interventionist approach gets into the picture an externally dictated definition of what constitutes the religion rather than the how the follower of a particular religion views it to be. It replaces the internal belief system of an individual as against a institutionalised version of the same, fundamentally reversing the freedom of choice of an individual to view her religion as she deems it fit. This test cannot be sustained for various reasons, firstly the court cannot rely upon any precise doctrinal standards which it can formulate to test whether a practice is essential to the religion or not; secondly the court in order to arrive at a decision cannot but rely upon the selective display of religious texts that rival parties present before the court to support their case to decide. It cannot justify itself to be a complete inquiry into all the documents which matter for the inquiry; thirdly such religious documents and their meaning to the cause are matters of subjective interpretation with possible variance even amongst the believers of the same religious denomination; fourthly such cases counterintuitively deprives the freedom of a believer to practice the belief system the way he finds it to be fit; fifthly the test can be seen as wholly unnecessary when such practices are tested upon the anvil of other all important civil liberties recognised under the constitution and by distinguishing the obvious secular aspects of the practices. In an apparent conflict between individual liberties with the communal rights it is the former which must prevail; sixthly by denying the non-essential aspects of the religion too could possibly stand in violation of the freedom to practice religion as guaranteed by the Constitution.

However, the Supreme Court has consistently applied this test and in fact recently it has taken upon itself to even decide whether keeping a beard is an essential part of one’s religion or not (Mohammed Zubair Corporal No.781467-G Vs. Union of India & Ors. Civil Appeal No. 8643 of 2009). Though a valuable opportunity presented itself to do away with this test in the recently delivered judgement declaring Triple Talaq as unconstitutional the court failed to consider it. Given the fact that the present referral order is to a five judge bench the court must consider discarding this test altogether. From the perspective of the referral order there does not arise a necessity to inquire whether the practice of excluding such women constitutes an "essential religious practice" under Article 25. The larger questions of equality and the stigma attached to the women, as analysed in answer to previous question, would show us that such activities would fall under secular aspects which must be in conformity to other forms of individual liberties under Part III. With the changing conceptions of belief systems, when the then prevalent regressive religious practices such as Sati which had a long and established tradition were outlawed, why not a practice which excludes women based on their physiology on the grounds of ritual purity? The constitutional assembly debates on Article 25 too supports this view that the freedom of religion must not come in the way of any social reform, as specific exceptions made thereunder inform us. It must be noted that these references were made with the social reforms to salvage the social position of women in mind by the several members of the assembly.

Question No.3: A Religious Denomination

The Respondents, in this case, seeks to argue out the questions raised by this practice by claiming the followers of Sabarimala Temple as a separate religious denomination, to bring the practice under the purview of protection offered by Article 26 of the Constitution. This argument does not fund any support from the broad version of ‘Hinduism’ as has been so far defined by the Supreme Court. It is difficult to separate the followers of Sabarimala as a separate religious denomination when one goes by the definition of Hinduism offered by the Supreme Court in the case of Sastri Yagnapurushadji vs Muldas Brudardas Vaishya 1966 AIR 1119 where the court put forward a definition where it found it too broad to be put into a exactions of traditional views of the term religion:

When we think of the Hindu religion, we find it difficult, if not impossible, to define Hindu religion or even adequately describe it. Unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not worship any one God; it does not subscribe to any one dogma; it does not believe in any one philosophic concept; it does not follow any one set of religious rites or performances; in fact, it does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more.

In fact, an earlier decision of the Bombay High Court in Ratilal Panachand Gandhi vs State Of Bombay case a narrowly tailored interpretation of the term religion was offered. The relevant passage is usefully extracted here 

“… whatever binds a man to his own conscience and whatever moral and ethical principles regulate the lives of men, that alone can constitute religion as understood in the Constitution. A religion may have many secular activities, it may have secular aspects, but these secular activities and aspects do not constitute religion as understood by the Constitution. There are religions which bring under their own cloak every human activity. There is nothing which a man can do, whether in the way of clothes or food or drink, which is not considered a religious activity. But it would be absurd to suggest that a Constitution for a secular State over intended that every human and mundane activity was to be protected under the guise of religion, and it is therefore in interpreting religion in that strict sense that we roust approach Articles 25 and 26.”

However, this decision was reversed by the Supreme Court in appeal. The subsequent line of decisions where the likes of followers of Aurobindo 1983 SCR (1) 729 and Ramakrishna Mission (1995) 4 SCC 646 were challenged has followed this view consistently too. Interestingly enough in Sastri Yagnapurushadji the issue that arose for consideration was the entry of former untouchables into the places of worship made by Swaminarayan sect. Therefore the Respondents in this case cannot claim to be a separate religious denomination to be accorded the constitutional protection. It should not be forgotten that this is in addition to the arguments raised by the Petitioners that the Devaswom Board is funded from Consolidated fund of India under Article 290-A. The very fact that the institution is financed from the consolidated fund of India makes it an institution of public character for which state is acts as a custodian. Otherwise also, as a public place of worship it cannot specifically close its doors and must be subject to the rigours of Articles 14, 15 and 25.

Question No.4 &.5: Validity of Rule 3(b)

The conundrum here is that the Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 under which the impugned Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 stands framed specifically states that 

“every place of public worship which is open to Hindus generally or to any section or class thereof, shall be open to all sections and classes of Hindus; and no Hindu of whatsoever section or class shall, in any manner, be prevented, obstructed or discouraged from entering such place of public worship, or from worshipping or offering prayers thereat, or performing any religious service therein”. 

A plain reading would indicate that the rule 3 (b) which bars the women at such time during which they are not by custom and usage allowed to enter a place of public worship in such a case runs contrary to the bar laid down by its parent statute complicating the case. If the presumption drawn under Rule 3(b) that the term class as mentioned in Section 3 does not include women as it does not lay down any clear distinction to that effect failing any argument in support of its validity.

Quite apart, even if one presumes that the rule banning the entry of women does not fall foul of the parent act it must be examined whether it can satisfy other arguments made against the violation of equality rights under Articles 14, 15 and 17 of the constitution. Though a parallel with the present case can be drawn with the judgement of Bombay High Court allowing the entry of women into Haji Ali Dargah the grounds upon which the entry was banned in these two cases are subtly different. In Haji Ali case the Trust has neither pleaded nor urged before the court that there exists a custom/usage, pursuant to which women have been restrained from entering the sanctum sanctorum of the Haji Ali Dargah. Nor was there any specific order/direction which would fall under the Article 13 (3). To the contrary however, in the present case the ban directly arises out of a subordinate legislation impugned here. As established in the answers for the previous questions the rule would fall foul of Part III of the Constitution.

Transparency in Collegium

This was first published here by me.

The decision of the Supreme Court collegium to upload its resolutions with reasons is a watershed moment in the longtime campaign by various stakeholders to ensure transparency in its functioning, albeit with certain reservations. Until now the functioning of the collegium was shrouded in utmost secrecy with the news articles regarding the appointment, transfer of judges from the collegium published as obtained from ‘highly placed sources’. This method of functioning of the collegium came under heavy criticism from various sections of the society, since no significant improvement happened even after the court in the NJAC judgment accepted that the collegium system requires corrective measure for ‘improvement’ in its functioning. After the delivery of the judgment, declaring the National Judicial Appointments Commission as unconstitutional the bench invited suggestions for improving the functioning of the collegium, in pursuance to which a report came to be filed, containing recommendations on four categories Transparency, Eligibility, Secretariat, Complaints. Of the four categories, the recommendations made under the head of transparency were easily implementable by the collegium itself without having had to wait for the finalisation of the Memorandum of Procedure. But it was not until the recent furore over the resignation of Justice Patel that has resulted in this voluntary disclosure of collegium resolutions. What is yet baffling the is the consistent failure of the institution to recognise the importance of civil audit of its functioning, which cannot be sustained without adequate disclosure of information about its functioning. The recent episode of Justice Karnan has amply demonstrated that such disclosure of information at the level of High Collegium would have at least provided sufficient warning about the appointment of an ineligible candidate to the bench. The sordid saga of the Supreme Court having to resort to its contempt jurisdiction against a serving High Court judge cannot be erased easily.

Even now the decision to disclose the resolutions cannot be termed as sufficient. It is a first step in a long way that is to be covered. The resolution of the collegium to disclose information has made a subtle reservation at the end in stating that “The Resolution is passed to ensure transparency and yet maintain confidentiality in the Collegium system.” No information has been provided as to what does the maintaining of confidentiality would entail and what are the aspects and information in its functioning which would be reserved from disclosure. The protest lodged by a member of the collegium Justice Chelameswar specifically pointed that minutes of the meetings to discuss on appointments and transfers to maintained. Subsequently, only an informal source provided a news that ‘circulation’ method has been adopted, where files on appointments and transfers are circulated amongst the members with each of them having to provide their reasons in writing about their decision. The reasons provided in the resolutions are extremely limited for any meaningful understanding to be drawn about the appointment of a candidate. For example, each candidate’s, who are members of the lower judiciary, professional ability has been assessed by “Judgment Committee” which assess the quality of judgments delivered by them. With no basic information about the criteria upon which the committee makes the assessment and the weight that the conclusion of the judgement committee carries in the overall decision to appoint a candidate, it is inadequate in the least. It is also notable that for the appointment and transfer of judges of the High Court opinion of only three senior most members of the collegium is required to arrive at the decision and all the five members for the appointment to Supreme Court.

In spite of this being a very bold and welcome move, a reserved disclosure of information just as this would not completely satisfy the requirements of transparency. Adequate disclosure of relevant information must start from the High Court collegium stage itself when a candidate is under the zone of consideration. This would inculcate the first principles of transparency in the appointment process while paving way for civil participation as well. Arguably, the present mindset within the judicial set up against any move towards ensuring transparency is to protect the institutional integrity. Counterintuitively, such informational disclosure would also shield the decisions of collegium from unnecessary criticism paving way for enhanced institutional integrity that it strives for. This is very bold and welcome step, albeit in a long road that is yet to be covered.

Reportable Judgments and Non-Reportable Judgments.

The post first written in Law and Other Things by me.

The common law as a legal system derives its legitimacy from its reliance upon the established tradition called precedents or in other words called as the principle of stare decisis. The tradition of this system as a whole, it is thought that, derives its legitimacy from its reliance upon the precedents. This is nothing more than a result of the importance to stability and certainty that it expects from the law as a discourse. It is seen as a steadying force that steers it clear of the much-resented contradiction and towards a safer predictable course that which can be acted upon safely. This helped to a great extent for the evolution of the common law system in its past. However, if seen from a practical standpoint in the present situation, the contradictions that the voluminous precedents create are apparent. It is proving to be difficult for anyone to have a unified understanding of the widely complex jurisprudence that the flow of time would have created. The perplexity that is created in the mind of anyone who tries to apply the law is captured perfectly by Benjamin Cardozo, in the context of requirement of periodical restatement of law, in his following words

The very strength of our common law, its cautious advance and retreat a few steps at a time is turned into weakness unless bearings are taken up at frequent intervals, so that we may know the relation of the step to the movement as a whole. One line is run here; another there. We have a filigree of threads and cross-threads, radiating from the centre, and dividing one another into sections and cross-sections. We shall be caught in the tentacles of the web, unless some superintending mind imparts the secret of the structure, lifting us to a height where the unity of the circle will be visible as it lied below.

This perfectly reflects the situation that is prevalent in India, considering the fact that even the highest of court churns out hundreds of judgments every year with the volumes of court reports burgeoning with each passing year. Predictably, there have been instances of judgments with contradictory reasoning being delivered even by the Supreme Court simultaneously, creating a jurisprudential naught. In fact, they also report inconsequential orders that are peculiar to special facts of the case resulting in they too becoming a part of the ever-increasing volumes of precedent.
Common law as a system constantly strives hard to balance between the stability through the reliance on precedence on one hand and its need to cater to the changing needs of the time in the other. In the time past, in order to avoid such jurisprudential conflicts the salutary rule was to report only those judgments that establish any principle of law which can guide the decision-making process in the future to ensure a consistent approach. Even now the judgments of both Supreme Court and High Courts contains two questions

• Whether to be reported in law reports or not?
• Whether to be shown to the press or not?

Even if the judge answers both the questions in negative, the reports continue to report those judgments, making it an altogether futile exercise. Senior Advocate Fali S. Nariman notes in his book (India’s Legal System Can it be Saved? @Pg:143) that the judges themselves does not exercise their discretion judiciously “abetted by overweening judicial vanity” in deciding whether to report a judgment or not.
With increasing emphasis on the freedom of press and transparency in the judicial process, the exercise has long lost its purpose. Practically too there is nothing that can stop open access to the judgments of the courts from being accessed. With websites like India Kanoon and search engines like Google using ‘crawlers’ to periodically search for data and add to their index, the availability of the judgments is not merely confined to the law reports, unlike the earlier times. In fact, citing of unreported judgments has become a fairly routine happening in the courts by the counsels. A judgment of the Gujarat High Court furthers this by stating that merely publishing on the website would not amount to same being reported, as the word “reportable” used for judgment is in relation to it being reported in law reporter. Even otherwise, the law reports do not discriminate between a ‘reportable’ judgment and ‘non-reportable judgment’.

The Governing Statute:

Statutorily, the only act that seems to have been enacted to regulate the reporting of judgments is the Indian Law Reports Act, 1875. Section 3 of the Act states that ‘No Court shall be bound to hear cited, or Authority shall receive or treat as an authority binding on it, given only to the report of any case decided by any of the said High Courts on or after the said day, other than a report published under the authority of the Governor General in Council’. This effectively created a monopoly of legal knowledge to the official reports. However, in practice this statute remained a dead letter for unofficial reports continued to be cited and relied upon by the courts. The 14th Law Commission Report chronicles the history of law reporting in India in a lucid manner and other attempts in the form of a bill, which failed to become a law in the end, to regulate legal reports. The existence of this dead letter law was first taken note of in the 96th Law Commission Report (1984), particularly noting the anomaly created by the provision if, for example, “… a single judge, relying on section 3, refuses to look at an unofficial ruling of a division bench” creating an “unsatisfactory” position where there would be a division bench ruling “disregarded” by a single judge. This is clearly entrenched in Article 141 of the Constitution of India under which “law declared by Supreme Court to be binding on all courts The law declared by the Supreme Court shall be binding on all courts within the territory of India”.
The report ultimately recommended for repealing the act. Subsequently, the Commission on Review of Administrative Laws (P.C.Jain Commission) and 249th Report of Law Commission of India on ‘Obsolete Laws: Warranting Immediate Repeal (Second Interim Report)’ also recommended for its repeal. It was not until very recently through the Repealing and Amending Act, 2016 that the act stands repealed.

What to Report or What not to Report?

With the Indian Law Reports Act, 1875, the reporting conundrum has also been put to rest. However, there are lot many yet to be resolved questions that linger.

• In the interests of lessening the volume of precedents, whether it is possible by way of judicial discipline to enforce a rule to only accept reportable judgments as a binding precedent or not?
• Can the inherent conflict that would inevitably arise between the so un-reported judgments with binding provisions like Article 141 be reconciled in any manner?
• If yes, what are the parameters upon which a judge must decide and exercise his discretion on whether a judgment is to be reported or not?

Though it has become a settled principle that the open access to judgments cannot be curbed in any manner not to infringe upon other concerns such as freedom of press, it yet possible to evolve a form of restraint both from the bar and the bench to use this now obsolete way to use reportable and un-reportable judgments. In the United States of America, legal scholars come together to study all the past precedents and bring out coherent and concisely the general principles that emerge out of them for future use, called as ‘restatement of law’. This is used as a secondary source, but it relegates all the past precedents before such a restatement to the history. With no such exercise or the prospect of it happening in India, it would do good to evolve some self-made discipline to find a cure for the ‘case law diarrhoea’ that plagues our legal system.