As the Supreme Court of India begins to reconsider its 2018 Sabarimala

temple ruling, two starkly divergent images from the months that
followed the ruling stand out.

The first was of people celebrating the court’s ruling in television

studios and in the news media. The other was of street protests in
Kerala, which had agitated common folk, both men and women,
protesting any move to allow women in the prohibited age category
from entering the shrine.

The problem with the latter set of images is that Kerala is one of the
more progressive Indian states, in both a social and an educational
sense, with a population that is politically Left leaning. As such, one
would have expected these folks to be supportive of all socially
progressive state action.

However, to the contrary, the state witnessed massive street protests.

So, what were we missing?

As a quick recap, the question was whether a religious practice that

prohibited women of menstruating age from entering the Sabarimala
shrine, and incorporated into local Kerala state law through a couple of
notifications and statute, was unconstitutional.
In the public space, we think of the issue as one pertaining to unfair
discrimination against women.

However, in the 2018 ruling, the Supreme Court approached the issue
principally in terms of the right to practise religion under Article 25 of
the Constitution of India.

In constitutional terms, such a debate is different from the one centred

around a woman’s right to be treated equally and live her life with
liberty and dignity (articles 14 and 21 of the Constitution).

For the sake of completeness, however, let’s analyse the prohibition in

all the relevant constitutional contexts, ie, the constitutional right (a)
under Article 25, available to women in their menstruating age, who
are prohibited from entering the Sabarimala shrine, (b) available under
Article 26 to those that manage the Sabarimala shrine, to preserve
religious practices, and (c) of equality, liberty and dignity, available to
women of menstruating age under articles 14 and 21.

But first, a preliminary word. The Supreme Court has had no occasion
to consider the arguments articulated below, since none of the litigants
made these points in the earlier court hearings.
Tersely stated, the rules of entry into Sabarimala prohibit entry to all
individuals that fail to complete the requisite 41/42-day vratham
(explained below).

The prohibition is not directed at women per se.

However, since women of menstruating age, cannot for physiological

reasons, complete the 41/42-day vratham without disruption, they
have been specified as a sub-category to be prevented from entering
the Sabarimala shrine.

I. Article 25 – Freedom To Practise Religion

In simple terms, Article 25 gives all persons the freedom to practise,

profess and propagate religion.

However, Article 25(2) gives the state (which includes the legislature,
executive and the judiciary) an over-riding authority to make law in the
interest of social welfare reform and throw open Hindu religious
institutions to all Hindus. The legal view on the extent of the state’s
authority pursuant to Article 25(2) has evolved over the decades.
Broadly speaking, this progression in case law (ie, law as interpreted by
the courts), which has had a non-linear evolution, has taken the
following route.

In the 1950s, the view was to allow the law to reform secular activities
associated with religion, but not essential religious practices.

The early to mid-1960s saw the courts noting that the right under
Article 25 was an individual right, that the law could not reform religion
out of existence and that it was for the community to determine what
religious practice was integral to that religion.

The 1990s saw a reiteration of the earlier established principle but

added the legal construct that the protection in Article 25 (and 26) was
also available to acts done in furtherance of religion.

Specifically, it was ruled that constitutional protection was extended to

rituals, practices, observances, ceremonies and modes of worship that
are integral to religion.

The early 2000s saw a reining in of the earlier principles and it was held
that a religious practice, if opposed to public policy or social decency,
would not be protected. This period also saw the clear articulation of
the phrase ‘essential practices’ as being those religious practices
without which the religion would not be a religion, ie, would not
survive.

However, this was not the end. The last few years have seen the law
evolve further and limit the protection to essential religious practices
by constitutionally acceptable parameters, which would include the
rights under articles 14 and 21.

Since the constitutional right under Article 25 is about the practice of

religion, the question would be, what is “religion”?

In the context of Sabarimala, since the issue is about the right to

practise Hinduism by entering the Sabarimala shrine, the question is
also, what is “Hinduism”?

Also, how would one evaluate the applicability of the essential practices
doctrine to the Sabarimala situation, what indeed is the essence of the
Sabarimala tradition and who ought to have the right to challenge the
local state law that regulates entry to the shrine, ie, who ought to have
locus standi?

Religion: Indian courts have struggled with interpreting the term

“religion”. Many court rulings note that the term was left undefined in
the Constitution and that it may not be capable of any precise
definition.

Further, there has been an issue with devising a precise definition

which could apply to all religions, including for the reason that certain
religions and traditions are atheistic (ie, reject the idea of god and
divinity), while others are theistic (ie, accept the idea of god and
divinity).

Hence, how does one evaluate the right in respect of a legal construct
that is imprecise, and at times contradictory?

Hinduism: This confusion gets compounded when once seeks to

explore the scope of Article 25 in relation to “Hinduism”, particularly
since, like with the term religion, the courts have also struggled with
arriving at a precise definition to the term “Hinduism”.

In many of its rulings, the Supreme Court has contemplated on the

term as a mix of different theologies that exist in a country with a high
degree of religious pluralism. It has been observed that different
denominations and sects in India profess different religious faiths,
beliefs and practices and that all these collectively have been described
as “Hinduism”.
The courts have also noted the fact that these different theologies and
schools have meant different things in different epochs and that
Hinduism has evolved over multiple millennia, ie, from its early days to
its current position in the modern era.

The analysis has noted the differences between the Agama and Vedic
traditions as separate religious traditions, the paths of knowledge,
karma and of bhakti, and the theistic traditions, on the one hand, and
the atheistic on the other.

The courts have also noted explanations made by certain sects of

Hindus that for them Hinduism was “science”.

Going further, the courts have also recognised and accepted the
practical benefits of certain scientific practices in Hinduism, such as
transcendental meditation, to achieve specific social outcomes.

This diversity in theologies poses a challenge in law, particularly since

no Hindu is a believer or subscriber to all versions, theologies and
practices that fall within the extensive canvass of the religion called
“Hinduism”.

Hinduism, therefore, points to an agglomeration of different theologies,

religious traditions, faiths and practices that exist on the Indian
subcontinent. Hinduism is not, and therefore ought not to be
considered, in the way one can do with monotheistic religion.

Compounding this problem is the fact that Hindu practices and belief
systems vary through the country.

A few easy examples noticed in court rulings are (a) the north Indian
practice of entering the sanctum sanctorum and touching the idol,
while in southern India a devotee would not be allowed such a
privilege, (b) the differences between the Shaivite, Vaishnavite and
Shakta traditions, etc.

The courts have also recognised the implications of different Agama

traditions and practices in different regions and in different temples.
The truth is that one school or practice or Agama tradition is capable of
being as different from the other as Christianity might be from Islam.

The issue is, therefore, whether these different theological traditions in

Hinduism ought to be treated as different and distinct traditions, like
with Christianity and Islam, etc.

A separate analysis would be needed to explore the divergent

theologies that constitute the Hindu religion, and its evolution over
multiple millennia, all of which brings us to today’s modern Hinduism.
There are too many moving parts to consider, particularly when the
court is required to evaluate the right of a modern Hindu to practise a
distinct Hindu tradition which is not part of his or her culture, roots or
ethos.

Essential Religious Practice: Adding to this maze of moving legal

constructs is the principle that the courts would only protect essential
religious practices under Article 25. So how does one offer protection to
a set of essential practices that are integral to Hinduism, a religion that
is incapable of any precise definition. A nightmare of a problem, which
needs some very careful threading.

Given the diversity of Hinduism, should the notion of essential religious

practice be considered with respect to each distinct religious tradition
as against the ambivalent catch-all idea of “Hinduism”?

The Supreme Court, in a 2015 ruling, noted that what is found and held
to be prescribed by one set of Agamas for a solitary temple or a group
of temples would be determinative of the issue. This observation is also
consistent with a long line of court rulings that have evaluated the legal
construct of essential practices and practices integral to religion in the
context of specific individual temples and/or group of temples.
Hence, one might conclude that a determination of essential practices
and the right to practise Hinduism under Article 25 needs a flexible
approach. In the context of special and localised religious traditions,
such as the case of the Sabarimala tradition, the right must be
construed in the circumstances inherent in that specific religious
tradition and not in the backdrop of the general idea of “Hinduism”.

Consequently, the search for essential practices in respect of the

Sabarimala shrine ought to be undertaken in the context of that specific
Tantric traditions in play at the shrine.

Sabarimala Specifically: Moving to the specifics of the practices

pertaining to the Sabarimala shrine, it is erroneous to view this in the
limited context of entry into the shrine or to view its traditions in the
context of Hinduism as a monothetic religion.

The correct perspective would be to appreciate the entry rules to the

Sabarimala shrine in accordance with the purpose for which the shrine
was established, ie, a pilgrimage to the shrine is meant to be a
culmination of a special Tantric spiritual process, which begins on the
first day of the vratham and ends with a darshan of the Deity.

The entry rules are not to be viewed as a standalone effort to regulate

entry to the shrine. This is not a shrine where people, be it man or
woman, are permitted to casually stroll in and offer prayers or pass
through to appreciate Hindu culture and tradition or appreciate the
beauty of the temple.

Whether one is to go by the Puranic tale of Prince Manikandan

formulating the rules of the pilgrimage or one looks to find the
underlying Tantric explanation, the goal of this tradition has been to
bring about an acceleration in the spiritual development of a pilgrim.

This acceleration is brought about in two stages:

(a) As the first step, the expectant pilgrim undertakes a 41/42-day

vratham/penance (computed as seven days to cleansing each of the
five levels of the human being, with the sixth week dedicated to
cleansing the auric body, and ending on day 42 – a Tantric construct).

(b) As the second step, the pilgrim proceeds on pilgrimage carrying the
traditional holy bundle, ascending the sacred 18 steps and entering the
shrine to get darshan of the deity.

This entire process is capable of being disrupted by various

occurrences, both voluntary and involuntary, but regardless of the
reason for the disruption, the scriptures prohibit entry to the shrine for
all individuals that fail to perform the entire 41/42-day vratham.
The prohibition is meant primarily to protect the energy of the deity
from disruption and desecration, which would occur if the deity’s
energy were to be exposed to an unending stream of incompatible
human energies (the theological perspective being that unless one
performs the full 41/42-day vratham, their energies would be
incompatible with the energy at the shrine and damaging to the deity’s
energy).

The prohibition is also meant to prevent possible adverse

consequences to persons that visit the shrine without undertaking the
prescribed cleansing vratham exercise.

Some of the involuntary ways the vratham could be disrupted include

the possibility of a death or birth in the family, which applies to both
men and women, and or the occurrence of menstruation, which is
relevant only to women.

Given the impossibility of being able to identify those that had failed to
complete the vratham and prevent them from entering the shrine, the
local state notification follows a two-step approach.

Principally, the notifications prescribe the need to complete the

vratham and disqualify those that fail to complete the same.
Thereafter, the notifications leave it to the pilgrims to self-regulate the
requirement to complete the vratham.
As an addition to the principal requirement, the notifications proceed
to identify the one category of individuals that were unlikely to
complete the 41/42-day vratham, ie, women in the menstruating age,
since menstruation would normally occur at least once in a 42-day
period, thus breaking the vratham.

The Tantri, in his dream, and the Devaprashnam (both accepted

processes in Keralite Tantra), in different ways, articulate the issue
faced by women of menstruating age, who for physiological reasons
could never comply with the 41/42-day vratham requirement.

Hence, the state notification went on to specify women in a

menstruating age (ie, between the ages of 10-50) as a prohibited
category. This is not meant to demean women, but only to identify the
one category that could possibly never comply with the religious
requirement of a vratham.

Having said that, nobody has ever explored the possibility of a woman
who stops menstruating before the age of 50 or one starts
menstruating prior to the age of 10, the age limits prescribed in the
local state law.
Adding to the confusion, there is the possibility of a woman consuming
pills to delay her menstrual cycle so as to be able to undertake the
entire 41/42-days vratham. Since these issues have never been raised,
there has been no occasion for anyone to explore these possibilities.
Maybe the mystics and Tantrics would have a view on the subject;
however for the present, this possibility is left unanalysed.

Clearly, the prohibition on entry imposed on those that did not fulfil the
requirement of a 41/42-day vratham is of a religious character and not
a secular practice, and it is an essential religious practice which is
integral to the Sabarimala tradition and since time immemorial.

The prohibition, in addition, can be described as a religious practice

that is not outside constitutionally acceptable parameters, given that its
object is not to discriminate or demean anyone, or look down on any
naturally occurring bodily phenomenon. As such, this ought to be a
right that is allowed protection under articles 25 and 26.

A follow up analysis could take up the task of explaining the Tantric

aspects of the Sabarimala tradition and the workings of the 41/42-day
vratham. Once that aspect is understood, it would also be apparent
that allowing individuals who had not fulfilled the need for a 41/42-day
vratham in large numbers would be a negative for the shrine.
Hence, if the law is changed to permit many non-compliant individuals
into the shrine, the deity would be disturbed and/or desecrated, and
this specific religious tradition would have been reformed out of
existence, it would be destroyed.

Such an outcome, as noted in many court rulings, is not the purpose of

law. Hence, even if there is a reasonable possibility that such a
desecration could occur, the courts ought to stay away from striking
down the prohibition.

Locus Standi: The above also brings us to the issue of who can challenge
a state law that incorporates a religious tradition. Relevant to the
context is that courts have held that the word “religion” in article(s) 25
(and 26) as being personal to the person having faith and belief in the
religion.

Hence, the legal ability of any Hindu to challenge the prohibition in

Sabarimala ought to consider the challengers’ personal subscription to
belief in the tradition under challenge. Though lack of importance to
locus standi has been remarked on in the 2015 Supreme Court ruling, it
has gained significance in the Sabarimala case.

Locus standi was never an issue in the past, since in all relevant court
rulings, the petitioners were seeking enforcement of the right as a
personal right. In all these instances, the petitioners personally
subscribed to the religious practice they were seeking to protect and in
fact the petitioners were priests or managers of religious shrines and
were trying to protect their right to lead worship or manage those
religious institutions.

This is not true in the context of the Sabarimala dispute since the
petitioners, though they could fall within the general description of the
term Hindu, cannot be said to be subscribers or believers in the
Sabarimala religious tradition. They are at best Hindus seeking to assert
a casual walk-in right, available to devotees, pilgrims or visitors at most
other Hindu shrines.

The issue of locus standi has specifically been flagged as a point of

contention in the dissenting 2018 ruling on Sabarimala. While most
judges side-stepped this issue, one of the majority rulings held that
locus standi ought not to be a road block for the challengers.

In doing so the ruling relied on the above mentioned 2015 ruling and
the principles applicable to public interest litigations (PILs), ie, a third
party’s right to seek legal remedy in public interest.

However, what has been ignored is the fact that the doctrine of locus
standi in PILs was evolved in the context of secular rights, ie rights
capable of being personalised and comprehended by all citizens.
In the context of Article 25, given that a religious need is capable of
being fully comprehended only by a subscriber to or a believer in that
religion, this principle should not apply.

For example, a Christian ought not to be permitted to challenge a

practice in Islam. In one case, the Supreme Court has ruled that
worshippers lay great store by their rituals and ceremonies, and
whatever other people, not of the faith, may think of these rituals and
ceremonies, they are part of the Hindu religious faith and cannot be
dismissed as either irrational or superstitious.

Hence, it is essential that anyone challenging the prohibition on entry

into the Sabarimala shrine be a subscriber or believer to the practices
and tradition being followed at Sabarimala. It would be a travesty if a
non-believer or non-subscriber in the specific religious tradition at
Sabarimala can challenge its practices merely because they are one
kind of Hindu.

To conclude on the issue of freedom under Article 25, and the related
locus standi issue, it would be fair to think of the right as being
available to a believer or subscriber of a specific tradition, and not a
right available to Hindus across different religious traditions.
The principles of PIL ought to apply to the extent that the challenger,
being a believer/subscriber, is viewed as a representative of other
believers/subscribers. The mere fact that the challenger is a Hindu
ought not to be sufficient to give locus standi since there are many
traditions and faiths that have been grouped together to create the
Hindu religion.

II. Article 26

Article 26 becomes relevant only in the context of a right to manage

and preserve the Sabarimala religious tradition. Language in the
Constitution implies that the right is available to a religious
denomination or a section of a denomination.

The term denomination in a religious sense has been viewed as a

collection of individuals with a common set of beliefs or common faith,
with a common organisation and classed together under the same
name.

In the Sabarimala case, the Supreme Court held that since the devotees
did not have a common name, it was not a religious denomination. A
closer look would establish that this view was narrow and erroneous in
this context, and hence resulted in an uninformed outcome. The court
had failed to notice two critical aspects of relevance.
One, that in past cases, the petitioners who had asserted rights under
Article 26 were not denied the right merely because they did not fall
within the strict parameters used to analyse the term “denomination”.

Two, given the way the term “Hindu” is defined, ie, in an all-
encompassing sense, Hindus would never check all the boxes needed to
be categorised as a denomination and hence their rights under the said
Article 26 would be interpreted out of existence and they would be
denied its protection. This could never have been the objective of
Article 26.

This issue must, therefore, be analysed in the context that Hindus have
no single system of beliefs or common faith, have no common
organisation, and often may not have a distinctive name.

In most prior cases, whether these related to mutts or temples, the

courts entertained arguments under Article 26 though the
“denomination” description may not have been passed in certain cases
and all rejections were for the reason that the essential practices test
was not passed, or the statute was seen to amend secular aspects of a
religious practice.
Hence, it was erroneous to reject a defence of the tradition on the basis
that followers of Sabarimala were not a denomination or part thereof.

Having said that, a closer look of relevant case law would also establish
that this interpretation of the term “denomination” was initially
enunciated as “obiter dictum”, ie, observation in the passing, and not
as “ratio decidendi”, ie, rule of law, and hence not binding. But that’s
too much of law for a general piece of analyses, such as this.

Concluding on the issue, a more appropriate approach may have been

to view the champions of the prohibition as persons seeking to enforce
rights under Article 26 as a section of the Hindu denomination.

That could then have led to a more substantive approach, ie,

determining if the petitioners were seeking to protect a secular practice
or were asserting a non-essential religious practice not integral to the
Sabarimala tradition, or indeed if the right sought to be asserted, even
if an essential practice integral to religion, was within or outside
constitutionally acceptable parameters.

III. Discrimination – Articles 14 And 21

Last, but not the least, is the issue of discrimination against women
based on sex, brought about by the practice of age-old patriarchy. This
element of the debate holds primacy in the public mind, which often
sees the dispute as being about unequal treatment of women and one
of discrimination.

Textbooks could get written on the subject. Issues such as

discrimination, reasonable classification, presumption in favour of the
law etc, have been ruled on by the courts extensively. For the present
analysis, the following principles in constitutional law would be
relevant:

(i) Differential treatment need not per se violate Article 14, provided
there is a nexus between the classification and the object under
consideration. To be unconstitutional, there should be no reasonable
basis for the differentiation.

(ii) However, to pass the test of permissible classification, a couple of

conditions need to be fulfilled: (a) the classification must be founded on
an intelligible differential, but this does not mean that the classification
should be scientifically perfect and logically complete; and (b) the
differential must have a rational relationship with the object sought to
be achieved.

(iii) Only a person who is aggrieved by the alleged discrimination can

move a valid challenge, though this principle has been diluted in the
case of PILs for secular situations.
(iv) There is a presumption in law that favours constitutionality of
legislative action. This presumption in favour of constitutionality is
capable of being rebutted only with (a) intrinsic evidence – where
discrimination is writ on the face of the rule/statute; or (b) extrinsic
evidence – the petitioner adducing evidence to show discrimination.

(v) The burden of proving discrimination is on the person claiming

discrimination.

Article 21 of the Constitution protects the right to life and liberty, which
has been held by the courts to include the right to live with dignity.
Considering the above analysis and the objective of the prohibition at
Sabarimala, it is a stretch for anyone to claim that the prohibition was
meant to demean or bring ridicule to the phenomenon of menstruation
or to women of menstruating age.

The outcome, if the above principles are applied to the Sabarimala

debate would be as follows:

There is indeed a nexus between the classification (of those that have
not completed the vratham, which includes women of menstruating
age) and the object of the differentiation. Limiting entry to the shrine to
individuals that have completed the vratham is meant primarily to
preserve the energy of the deity and to prevent it from desecration.

The classification is indeed founded on an intelligible differential,

though the classification may not be scientifically perfect or logically
complete.

In a religious sense, only an individual who has completed the full

41/42-day vratham is denied entry into the shrine ought to have the
right to bring a constitutional challenge, including as a petitioner in a
PIL. Those seeking to assert casual walk-in rights do not have locus
standi.

Constitutional presumption must favour legitimacy to a religious

prohibition incorporated into state law, and the court should not strike
down a state law unless the presumption is rebutted by a petitioner in
accordance with accepted constitutional principles.

One would conclude the above analysis by summarising that the

prohibition on entry into Sabarimala is a religious practice, fundamental
and hence essential to the religious tradition at the shrine. Without
this, the religious tradition at Sabarimala would stand desecrated out of
existence.

Hence, the prohibition and the religious tradition at Sabarimala is

entitled to protection under Articles 25 and 26 of the Constitution of
India.
And lastly, while the prohibition does involve a classification, its object
is not to discriminate or be derogatory of women and hence the
prohibition ought to pass the test of articles 14 and 21 and is consistent
with acceptable constitutional principles.