Constitutional morality is the frame work on which dignified living is constructed; thereby enabling a liberal democracy. Constitutional morality is a paradigm which measures a progressive, liberal democracy. Recently a series of landmark judgements reflected a sentiment welcomed by liberals as progressive and socially moral. Constitutional morality has buttressed Right to Privacy in the first definitive judgement (2017) by decriminalising adultery, striking down Section 377 of IPC, Aadhaar, and most recently the Sabarimala temple verdict.
In this verdict, the Supreme Court has allowed women of all ages to enter the Ayyappan temple; thereby bringing an end to age old tradition of prohibiting menstruating women from entering the temple. The judgement was reached through a five judge constitutional bench headed by the Chief Justice of India in a 4:1 verdict. The judgement upheld Article 14, Article 15, Article 25 and Article 26 as key rights advocating women’s equality and dignity. The fundamental rights embedded in the Indian constitution ensures equal and fair treatment of the citizens before law and which champions the golden triangle of natural human rights of equality, dignity and freedom. These rights have been instrumental in bringing human from the Stone Age to the present age.
This judgement highlights the restrictions on the Hindu women to practice religion therefore article 25 has been infringed upon, in respect of female worshipers and other orthodox followers. Clause 26(b) states that religion denomination can manage its own affairs in matter of religion, subject to 25(b) which states for social welfare and reform the state can throw open Hindu religion institutions to all classes and sections of Hindus. In a 4:1 majority the judges upheld that the exclusion of women from religious practices even if founded in religion is subordinate to constitutional nature of liberty, dignity and equality. Moreover exclusionary practices are contrary to constitutional morality. Therefore, the court must decline to grant constitutional legitimacy to practices which lower the dignity of women and their entitlement to an equal citizen.
Sadly though a woman, Justice Indu Malhotra has given a dissenting judgement and favoured the Sabarimala temple male seers’ demand not to allow women into the temple is herself a woman. According to Justice Malhotra, entertaining PILs challenging religious practices could cause harm to the secular fabric of the nation and matters on right to equality in religion must be perceived in context of the worshippers of the same sect. But religious practices followed by any group or sect cannot over ride individual constitutional right. Religious denomination ought not to hold back the constitutional right of a citizen, Article (25). Individual right is above a group’s right and the constitution is meant to safeguard individual right and subject to constitutional morality.
Moreover justice Malhotra’s judgement that the court must steer clear of essential practices followed by denomination religion is biased in nature. Repugnant practices which highlight gender discrimination must be demolished. As Justice DY Chandrachud has rightfully observed “To treat women as children of lesser God is to blink at the constitution itself”. The women in general in India are subjected to patrimonial control and several unjust societal restrictions. The Muslim women are not allowed to do Namaz in the Mosques. The Jama Masjid has lately allowed Muslims to pray in separate enclosures. It’s time that the court should look into similar religious discrimination against women in the Muslim community. Constitutional morality is not the preserve of Hindus alone in a secular society.
The famous jurist Fali S. Nariman has written in his book “India’s Legal System” that “The Judiciary is like oxygen in the air. It is not enough for the judiciary to be independent of the executive. They must be seen to have noble quality of mind and heart and above all courage”. By affirming dignity for Hindu women at Sabarimala temple, the Supreme Court, has shown courage against obscurantism and prejudice and has accorded primacy of equity to gender over unacceptable religious practices.
The author is a Chairperson, KIIT International School
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