Ghost of Sabarimala will continue to haunt for some time, at least…

Objective-: 

The Author in this article tries to put forth the consequences of the issue involved in Sabarimala temple matter decided by the constitution bench of Court of India on 28-Sept-2018

The author has, in past, written an article on a related subject when the hearing was going on.

It may be accessed at Removing Gender Bias is abrogation of freedom of religion?

One may expect following things from article.

• The text of  of the constitution of India relevant for this discussion.
• A case in which the following question is answered –

“whether Any person who is a Hindu and possessing the requisite qualification and training can be appointed as an Archaka in Hindu temples”

• What is freedom of religion & what is the role of the judiciary in this matter?
• Precedence in terms of removing discrimination between caste
• What is Hindu religion
• PART III FUNDAMENTAL RIGHTS General

Structure-:

• Entering the subject
• of the decision
• an opinion of the author
• perception of the author
• Suggestions for reading the Judgement

Entering the subject-:

In simple terms, there was a tradition that, Ladies of age from 10 to 50 years cannot enter the specified Lord temple at Sabarimala.

The same was challenged, being an arbitrary discrimination solely on the basis of gender and Supreme Court held it to be so.

It has held that, woman of any age, irrespective whether she is in her menstruating period or not, can enter the temple.

Thus, from point of view of faith, the Supreme Court has  forced Lord Ayyappa, a  Naishtik brahmachari’ by birth who does not see a woman when she is in her menstruating age by  to see those women.

It is a clear tussle between Faith vis-a-vis intellect. At the inception itself, the basis of faith and basis of intellect are squarely different and one can not expect that both will always sync with each other.

The situation is violent not only near the area of  but also in other parts of Kerala. Instances of unfortunate events are being reported on a daily basis.

https://www.thenewsminute.com/article/rahul-easwar-arrested-again-time-comment-desecrating-sabarimala-temple-90684

A cursory opinion of the author

With utmost humility, the author is in respectful disagreement with the majority judgment of Honourable Supreme Court of India.

The Majority quorum has applied a purely intelligible differentia which cannot be applied to matters relating to religion which is mainly based on FAITH.

Just because a court is an institution for answering disputes does not mean that every dispute can be or should be carried to the said institution. In Sabarimala case also, Supreme Court should have declined to answer.

In past, Supreme Court has[#], declined to answer a question posed before it. The question and answer are reproduced hereinbelow.

Question

Whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janma Bhumi-Babri Masjid (including the premises of the inner and outer courtyards of such structure) in the area on which the structure stood?

Answer

This Court is, therefore, entitled to decline to answer a question posed to it under Article 143 if it considers that it is not proper or possible to do so, but it must indicate its reasons.

151. In our view, the Reference must not be answered, for the following reasons.

…

…

How the balance between various articles is achieved

Article 14 speaks about non-discrimination purely based on religion, caste, gender etc.

Article 25 gives freedom to every person to profess his / her religion and conscious.

This fact is also understood and accepted that a religion or conscious is based on faith and which need not be logical. Thus, even apparently, there is a conflict between the two.

The twin-test for determining the validity of a classification under Article 14 is:

• The classification must be founded on an intelligible differentia; and
• It must have a rational nexus with the object sought to be achieved by the impugned law.

The difficulty lies in applying the tests under Article 14 to religious practices which are also protected as Fundamental Rights under our Constitution. The right to equality claimed by the Petitioners under Article 14 conflicts with the rights of the worshippers of this shrine which is also a Fundamental Right guaranteed by Articles 25, and 26 of the Constitution.

It would compel the Court to undertake judicial review under Article 14 to delineate the rationality of the religious beliefs or practices, which would be outside the ken of the Courts.

It is not for the courts to determine which of these practices of a faith are to be struck down, except if they are pernicious, oppressive, or a social evil, like Sati.

Potential consequences

Following are the various situations where the author has tried to apply the ratio laid down by the Supreme Court.

Any and every person should be allowed to visit the “Parsi well”, mosque, temple or any other religious place. They can not now put restrictions on cloths that one has to wear.

Those following Hindu religion, has at least 33 crores [so to say] deities, but what will happen in case of religions who have only one deity or god or person and are posed with a situation to the same?

There are many more such permutations and combinations of situations which may get ignited and more importantly for no good reason.

Whether Judiciary should interfere

The author is in agreement with the view taken by Justice Indu Malhotra which has been summarised by herself as follows;

16. The summary of the aforesaid analysis is as follows:

(i) The Writ Petition does not deserve to be entertained for want of standing. The grievances raised are non-justiciable at the behest of the Petitioners and Intervenors involved herein.

(ii) ..

(iii) Constitutional Morality in a secular polity would imply the  of the Fundamental Rights, which include the right of every individual, religious denomination, or sect, to practice their faith and belief in accordance with the tenets of their religion, irrespective of whether the practice is rational or logical.

(iv) …. This is a mixed question of fact and law which ought to be decided before a competent court of civil jurisdiction.

(v) The limited restriction on the entry of women during the notified age-group does not fall within the purview of Article 17 [deals with untouchability] of the Constitution.

17. In light of the aforesaid discussion and analysis, the Writ Petition cannot be entertained on the grounds enumerated hereinabove.

Perception of the author

The author perceives it in a form of volcano that has activated very deep down the earth which requires an immediate protective action. Otherwise, it will blow up in many dimensions, through such forms which are difficult to imagine.

Consider the current objections being taken to the triple talaq ordinance . One will wonder whether it is a drafting error or an intentional loophole. It does not require a law expert to read the section.

The main section reads as follows

Chapter II

Declaration of Talaq to be Void and il-legal

Talaq to be void and illegal

3. Any pronouncement of Talaq by a muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.

Punishment for pronouncing Talaq

4. Any muslim husband who pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable for fine

Objection

Suppose a muslim husband say “talaq, talaq, talaq”. This act will become void in view of section 3 above. Void means which does not have any driving force. Thus there is no talaq / divorce.

Thus, when there is no even civil wrong, question of this void act, i.e. the one which does not exist, becoming a criminal wrong does not arise.

Expectations-:

Supreme Court should take up the review petition filed against the sabarimala decision at the earliest.  It is very unlikely that the Supreme Court will change its stand but it can definitely water down the other perhaps unwarranted side effects of the judgment.

Suggestions for reading the Judgement

Even though the author does not agree with the outcome reached by Justice Dhananjay Chandrachud, his opinion is well structured and will enable a reader to understand the case.

INDEX

A Conversation within the Constitution: religion, dignity, and morality

B History: Lord Ayyappa and the Sabarimala Temple

C Temple entry and the exclusion of women

D The reference

E Submissions

F Essential Religious Practices

G The engagement of essential religious practices with constitutional values

H Religious Denominations

H.1 Do the devotees of Lord Ayyappa constitute a religious denomination?

I Article 17, “Untouchability” and the notions of purity

J The ultra vires doctrine

K The ghost of Narasu

L Deity as a bearer of constitutional rights

M  for the future

N Conclusion

# Decision of a larger bench of Supreme Court of India in the case of Dr. M. Ismail Faruqui Etc, Mohd. … vs Union Of India And Others on 24  1994 Equivalent citations: AIR 1995 SC 605 A – which has held that “mosque is not an integral part of Islam.

Reference / Question

Whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janma Bhumi-Babri Masjid (including the premises of the inner and outer courtyards of such structure) in the area on which the structure stood?

Answer

This Court is, therefore, entitled to decline to answer a question posed to it under Article 143 if it considers that it is not proper or possible to do so, but it must indicate its reasons.

151. In our view, the Reference must not be answered, for the following reasons.

152. The Act and the Reference, as stated hereinabove,  one religious community and  another; the purpose of the Reference is, therefore, opposed to secularism and is unconstitutional. Besides, the Reference does not serve a constitutional purpose.

153. Secondly, the fifth recital to the Reference states that “the Central Government proposes to settle the said dispute after obtaining the opinion of the Supreme Court of India and in terms of the said opinion”. (Emphasis supplied.) It is clear that the Central Government does not propose to settle the dispute in terms of the Court’s opinion. It proposes to use the Court’s opinion as a springboard for negotiations. Resolution of the dispute as a result of such negotiations cannot be said to be a resolution of the dispute “in terms of the said opinion”. Asked to obtain instructions and tell the Court that the mosque would be rebuilt if the question posed by the Reference was answered in the negative, the learned Solicitor General made the statement quoted above. 

It leaves us in no doubt that even in the circumstances that this Court opines that no Hindu temple or Hindu religious structure existed on the disputed site before the disputed structure was built thereon, there is no certainty that the mosque will be rebuilt.

154. Thirdly, there is the aspect of evidence in relation to the question referred. It is not our suggestion that a Court of law is not competent to decide such a question. It can be done if expert evidence of archaeologists and historians is led, and is tested in cross-examination. The principal protagonists of the two stands are not appearing in the Reference; they will neither lead evidence nor cross-examine. The learned Solicitor General stated that the Central Government would lead no evidence, but it would place before the Court the material that it had collected from the two sides during the course of earlier negotiations. The Court   to examine and evaluate such material, it would have to appoint experts in the field to do so, and their evaluation would go unchallenged. Apart from the inherent inadvisability of rendering a judicial opinion on such evaluation, the opinion would be liable to the criticism of one or both sides that it was rendered without hearing them or their evidence. This would ordinarily be of no significance for they had chosen to stay away, but this opinion is intended to create a public climate for negotiations and the criticism would find the public ear, to say nothing of the fact that it would impair this Court’s credibility.

155.  Ayodhya is a storm that will pass. The dignity and  of the Supreme Court cannot be compromised because of it.

156. No observation that we have made is a reflection on the referring authority. We have the highest respect for the office of the President of India and for its present incumbent; his secular credentials are well known.

157. Having regard to the construction that we have placed upon the Act and the Reference, it is neither necessary nor appropriate to discuss the other challenges to their validity and maintainability, respectively. It may, however, be said that we found the argument that the Act was public order legislation and, therefore, beyond the competence of Parliament very plausible.

158. We are indebted to the learned Attorney General for the assistance that he has rendered to the Court. We are indebted to counsel who  appeared in these matters; if we single out Mr. R.K. Garg, it is because of his untimely demise.

159. Before we pass final orders, some observations of a general nature appear to be in order. Hinduism is a tolerant faith. It is that tolerance that has enabled Islam, Christianity, Zoroastrianism, Judaism, Buddhism, Jainism and Sikhism to find shelter and support upon this land. We have no doubt that the moderate Hindu has little taste for the tearing down of the place of worship of another to replace it with a temple. It is our fervent hope that that moderate opinion shall find general expression and that communal brotherhood shall bring to the dispute at Ayodhya an amicable solution long before the Courts resolve it.

160. To quote Gandhiji again, “India cannot cease to be one nation because people belonging to different religions live in it

In no part of the world are one nationality and one religion synonymous terms, nor has it ever been so in India.

161. The Acquisition of Certain Area at Ayodhya Act, 1993, is struck down as being unconstitutional. The writ petitions impugning the validity of the Act are allowed. The issues in the suits in the Allahabad High Court withdrawn for trial to this Court are answered accordingly.

162. The Presidential Reference is returned respectfully, unanswered.

163. There shall be no order as to costs