Also published in Legally India
It is unfortunate to see that Indian courts have started interfering in Hinduism traditions. It is surprising to note that being atheist institutions themselves, our courts including The Supreme Court of India are ruling over Hindu religious matter which is not supported by Indian constitution. Restricting anybody’s entry in any temple or places of worship depends upon the customs set by the religion; not by the courts. Even our constitution does not permit our courts to interfere into such religious institutions.
Both cases of Shani Shingnapur temple and the Sabarimala temple are showed as violence of equal rights guaranteed by the constitution which is not so.
Let’s look at the Article 14 and 15 of the Indian constitution that guarantees equal rights and no discrimination respectively to understand this better –
Article 14 (Right to Equality; Equality before Law) of the constitution says –
The state shall not deny to any person equality before law or equal protection of the laws within the territory of India.
So what this Article states is that the state shall ensure equality to everyone within the territory of India. But this is to be implemented when the state itself is running an institution like temple or a trust with state funds. In case of a temple that is run by independent trusts that are in turn driven by religious customs and sentiments how can any court or state have jurisdiction to set any rule? More so, when they are not experts of religious customs or norms. They are merely legal experts. Courts can at the most advise the trust to consider implementing better norms but it is left upto the trust to implement them based on Hindu tradition.
It is important to note here that any institution operating in Indian Territory irrespective of its nature of operation comes under Indian constitution and legal framework. So the question is when certain religious customs and beliefs are against the constitution which one to be followed?
In this context it is pertinent to observe that religion itself is based on pure faith and myths. It is not based on Maths or Science. Hinduism is most ancient one and the customs may not match modern outlook. So does any state or court has the power to change them?
We will understand it in due time. Let’s check what our constitution says about equal rights and discrimination –
Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth)
This Article too do not give any state or court the power to set rules for any religion. Let’s read from this Article –
- (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
you look at the Article closely 15. (2) (b) states that the provisions for general public that “are maintained wholly or partly out of state funds or dedicated to the use of general public”.
If we assume that a Hindu temple is considered as a public resort dedicated to public use, as stated in Article 15, state has no business of interfering in their affairs unless these public facilities are maintained by the state funds (either partly or wholly).
There is one more angle to this issue. One needs to observe some rituals before going to the sanctum of these temples. Sabarimala visitors need to observer penance for a certain duration, Shani Shingnapur visitors need to cleanse them and follow the dictates of the priests there to enter the sanctum. Common men without following these traditions can’t enter the sanctum. Question is will any state or any court see this as discrimination in future? If yes, then what is the need of Hinduism or any religious beliefs when our courts start dictating terms for religion when they themselves are not experts?
Many believe that Article 25 (Right to Freedom of Religion) section 2 is what was followed while delivering these orders. Let’s looks at this article to understand it better –
- (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Please mark the bold part in section 25 (1) above. It states any person (irrespective of gender) is free to practice religion. Point here is they are free to practice religion and not change it. So if the religion tells them to follow certain restrictions, they need to follow them in order to practice the same.
Article 25 (2) above states that govt. does have powers to throw open all Hindu (that includes Jain, Sikh and Buddhist as well) places of public character (may include temples if perceived so) to “All classes and sections” of Hindus.
Please note that it does not specify “gender” per se. So any state or court trying to throw open such places for any gender does not have sanction in constitution, too.
To understand whether either “Class” or “Section” in the above clause include “gender” we need to refer to the constitution for the definition of these terms.
If we look into the constitution all references to “Class” of people have always been towards backward (educationally, socially or financially). It never referred to gender in any of the other references provided for in our Constitution. So it is highly unlikely that in section 25 (2) it referred to “gender”.
“Sections” is referred to in India constitution in terms of Minority classes or linguistic or regional sections. It may include both genders if the definition is extended. But if we look into the constitution closely we can see that in all other places where the constitution makers wanted special mention of gender they did that. So it is unlikely that for section 25 (2) they will use ‘Section” in lieu of “Gender”. Rather it merely referred to as backward classes of Hindus.
Also in Section 15(3) of constitution we can find that both “Class and Section” and “Gender” are mentioned separately. So constitution makers did not use these terms interchangeably.
When our legislature or constitution makers did not use these terms interchangeably, there is no way any court could interpret our constitution differently and rule that Hindu temples barring women from certain sanctum is violating our constitution. Rather court dictats directing Hindu temples to amend Hindu rituals is against constitution that upholds the right to every citizen to follow any religion. But the constitution never gave the state or the courts approval to change religious beliefs or customs.
State or courts have never been the authority to decide our religious customs. That is why in 2015, Supreme Court had to rule that it could not interfere into animal sacrifice tradition in religious places and these needed to be discussed with those religious leaders. A division bench of Justice H L Dattu and Justice Amitava Roy ruled in 2015 that “Court could not interfere in centuries old tradition and the issue needed to be discussed with community people.”
We may note here that in case of “Preventing Cruelty against Animals ACT” even the legislature did not want to intervene in religious maters. We know that judiciary can only interpret and uphold our constitution but it can’t make or change constitution. Looks like these orders are coming violating our constitution and basic principles on which our legal system is standing today.