When the judiciary rewrites a faith (The Sabarimala controversy)

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When the judiciary rewrites a faith (The Sabarimala controversy)

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• Sabarimala judgement by SC, 2018: It has rewritten how the Court views freedom of religion, equality and untouchability. Of course, J Indu Malhotra dissented magnificently.
• Structure of endowments in religion: The British laws created trust-like structures to control corruption, through laws like the Religious Endowment Act, 1863, the Charitable Endowments Act 1890, and the Civil Procedure Code.
• What are endowments? These are institutional vehicles by which religions define and perpetuate themselves, and are protected by Articles 25-28 of Constitution (religious freedom, social welfare, reform).
• Independent India: Later, the Report of the Hindu Religious Endowments Committee (1962) tried to make a strategy for fair administration without harming religious integrity of these endowments. The SC has dealt with 90 decisions on conflicts between Hindu endowments and legislations that control them.
• Nationalisation of religion! Post 1950, states like Bihar, TN, Odisha, AP, UP, Kerala passed laws to regulate and SC has been testing if these infringed upon guaranteed rights of management, belief practice and propagation as given by Articles 25 and 26. Practically, these statutes have nationalised Hindu and Buddhist temples in India.
• What did SC do? One - it tried protecting the essential practises of the faiths, and Two - balance this against the need to control the practices.
• Big decisions: In all this, it ruled some faiths as not religious at all. Example - the creed practised by followers of Sri Aurobindo. And it ruled some practices as "not essential" to a faith. Example - the tandava dance practised by Anand Margi people (that had a  dissenting note by one judge).
• Integral, essential: Some other examples of SC rulings - 

1. Kashi Vishwanath case 1997: A Judge ruled that "integral nature" was an additional test for "essentiality“.That would cut down the scope for religious freedom. 
2. The Babri Reference Case 2018: It refused to comment on it and said that earlier comments on "non-essentiality of mosque for prayer" were made in another context. One judge dissented.

• What should be done? One way out is for the SC judges to not try and rewrite the faith, but accept the bona fide practices accepted by the community at large. Other limits on religious freedom would still apply.
• What SC must not do: Don't tell what bona-fide faith is.

1. Yagnapurushadji case 1966: A judge insisted that Swaminarayan sect followers were Hindus while they said they were not. Perhaps the judge, under Article 25(2), could have said they were Hindus for temple entry purpose.

• Untouchables in temples: In the Devaru Temple Entry Case 1958, a balance was struck - untouchables could enter the temples, but not the inner sanctum.
• Sabarimala Case 2018: It is about entry of women aged between 10 and 50. Since Lord Ayyappa was celibate, hence women of fertility age cannot be allowed. Arduous journey logic fails as girls < 10 yrs are allowed! Issues were - 

1. Was it a denominational temple? 
2. Is denying entry an essential practice? 
3. Could Article 17 (untouchability) be invoked? 
4. Is public morality the same as constitutional morality? etc.

• Majority judgement: Denial of entry was not a denominational or essential practice. Article 17 applied, and constitutional morality includes equality and gender justice.
• Dissent: J Indu Malhotra said the exact reverse. But she failed to stress on public morality, and spoke of the problem in restricting the logic to only constitutional morality.
• Summary : Indian Courts should try and avoid getting too deep in practices that are bona fide accepted by communities practising the religion.

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