The Sabarimala Judgment – III: Justice Chandrachud and Radical Equality

Justice Indu Malhotra’s dissenting opinion sets up a crucial constitutional question: how do you reconcile the Constitution’s commitment to pluralism – which entails respect for group autonomy – with the claims of equality and non-discrimination, addressed from within those groups? It is this question that is at the heart of Justice Chandrachud’s concurring opinion.

Chandrachud J. sets up the issue in the introductory part of his judgment, where he observes that the Indian Constitution is transformative in two distinct ways: first, in setting up the governing institutions of an independent republic, transitioning from colonial rule; but also, “placing those who were denuded of their human rights before the advent of the Constitution – whether in the veneer of caste, patriarchy or otherwise – … in control of their own destinies by the assurance of the equal protection of law” (paragraph 2). The reference to caste and patriarchy is important, because it acknowledges that discrimination is not limited to State action, or even to hostile individual action, but that it also flows from institutional design: caste and patriarchy are neither “State” nor an agglomeration of individual acts where you can attribute discriminatory agency to identifiable individuals. They are social institutions.

And because they are social institutions, their impact upon the lives of the people that they touch is not merely a private matter. In paragraph 5, therefore, Chandrachud J. observes:

Essentially, the significance of this case lies in the issues which it poses to the adjudicatory role of this Court in defining the boundaries of religion in a dialogue about our public spaces. (paragraph 5)

The use of the word “public spaces” is crucial, and especially when you juxtapose it with Malhotra J.’s dissenting opinion, which we discussed in the previous post. Recall that for Malhotra J., there was a distinction between a “social evil” like Sati – where a Court could potentially intervene – and a case like Sabarimala, where the challenge was based on irrationality or immorality. It is this public/private binary – social evil (public) and bare immorality (private) – that Chandrachud J. rejects, by framing the issue as about access to public spaces.

It is within this framework that Chandrachud J. begins his substantive analysis.

Essential Religious Practices 

After surveying the body of precedent concerning the ERP test – and also noting the shift from “essentially religious” to “essential religious”, that we have discussed on this blog – Chandrachud J.’s judgment has a section titled “The engagement of essential religious practices with constitutional values.” At the threshold, Chandrachud J. finds that the Respondents have failed to establish that the exclusion of women from Sabarimala is either an obligatory part of religion, or has been consistently practiced over the years. The evidence, at best, demonstrates the celibate nature of Lord Ayappa, but this in itself does not establish that exclusion of women is part of ERP (paragraph 51).

However, apart from the traditional and straightforward analysis of whether or not a religious claim amounts to an essential religious practice, Chandrachud J. also advances an important alternative argument: that “the test of essentiality is infused with … necessary limitations” (paragraph 50), limitations that are grounded in constitutional morality, and the constitutional values of dignity and freedom. So, at paragraph 55, Chandrachud J. notes:

The Respondents submitted that the deity at Sabarimala is in the form of a Naishtika Brahmacharya: Lord Ayyappa is celibate. It was submitted that since celibacy is the foremost requirement for all the followers, women between the ages of ten and fifty must not be allowed in Sabarimala. There is an assumption here, which cannot stand constitutional scrutiny. The assumption in such a claim is that a deviation from the celibacy and austerity observed by the followers would be caused by the presence of women. Such a claim cannot be sustained as a constitutionally sustainable argument. Its effect is to impose the burden of a man’s celibacy on a woman and construct her as a cause for deviation from celibacy. This is then employed to deny access to spaces to which women are equally entitled. To suggest that women cannot keep the Vratham is to stigmatize them and stereotype them as being weak and lesser human beings. A constitutional court such as this one, must refuse to recognize such claims. (paragraph 55)

As a piece of discrimination law reasoning this is, of course, impeccable. But there is something more at work here, which I want to highlight. Chandrachud J.’s observation that the effect of the celibacy argument “is to impose the burden of a man’s celibacy on a woman” is the crucial link between the denial of the right to worship (which Malhotra J., in her dissent, regards as a private, internal matter to religion) and the public aspect of this case. What Chandrachud J. recognises is that the justification offered to exclude women is an integral part of a far broader discourse that is founded on the exclusion and subordination of women in social and community life. This becomes clear two paragraphs down, where he discusses the stigma around menstruation (another justification that was advanced by the Respondents), and observes:

The stigma around menstruation has been built up around traditional beliefs in the impurity of menstruating women. They have no place in a constitutional order. These beliefs have been used to shackle women, to deny them equal entitlements and subject them to the dictates of a patriarchal order. (paragraph 57)

The phrase “patriarchal order” is an important one. It indicates that the exclusion of women from Sabarimala is not simply – as Malhotra J. would have it – a unique and particular feature of that specific religious community, and something that can be isolated from the broader world around it. Rather, the exclusion of women from Sabarimala on the grounds of celibacy and menstruation is one among countless ways in which patriarchy – as a social institution – works to keep women in a position of subordination.

Justice Malhotra and Justice Chandrachud, therefore, come at the issue from opposite angles. What Malhotra J. sees as a claim requiring that religion be subordinated to the diktats of morality, Chandrachud J. understands as challenge to one manifestation of patriarchal subordination itself. According to Chandrachud J., you cannot divide social life into different silos, and say that discrimination and subordination are fine as long as they stay within a defined silo. At least as far as religion and society are concerned, in the context of India, the silos are forever merged. As Alladi Krishnaswamy Iyer said in the Constitutional Drafting Committee, “there is no religious question that is not also a social question.”

It perhaps needs to be noted that history is on Justice Chandrachud’s side. In India, temple-entry movements have a long history, and have always been framed in the language of civil rights, and access to public spaces. This was especially true of the great caste-based temple-entry movements of the 1920s and 30s (which are discussed later in the judgment). This substantiates the argument that in India, the “thick” character of religious life implies that you cannot simply wall it off from the rest of social life. Consequently, discrimination within religion is hardly an isolated event, like – for example – the non-appointment of a woman to a clerical post in an American Church, which was upheld by that Supreme Court. Rather, at the heart of Chandrachud J.’s judgment is the understanding that discrimination within religion both reinforces and is reinforced by, discrimination in broader social life.

Untouchability 

This understanding is reinforced in what is undoubtedly the boldest and most radical part of Chandrachud J.’s judgment. An argument was made by the intervenors that the exclusion of women from Sabarimala amounts to “untouchability” within the meaning of Article 17. The Chief Justice and Nariman J. do not address this argument, and Malhotra J. rejects it on the ground that “untouchability” under the Indian Constitution is limited to caste-based untouchability.

Chandrachud J. disagrees. After a detailed survey of the Constituent Assembly Debates (which we have discussed previously on this blog, here), he correctly observes that there was no consensus in the Constituent Assembly over the precise scope and ambit of the phrase. But when you place the moment of constitutional framing within broader history, you have an answer:

The answers lie in the struggle for social emancipation and justice which was the defining symbol of the age, together with the movement for attaining political freedom but in a radical transformation of society as well. (paragraph 73)

And:

Reading Dr Ambedkar compels us to look at the other side of the independence movement. Besides the struggle for independence from the British rule, there was another struggle going on since centuries and which still continues. That struggle has been for social emancipation. It has been the struggle for the replacement of an unequal social order. It has been a fight for undoing historical injustices and for righting fundamental wrongs with fundamental rights. The Constitution of India is the end product of both these struggles. It is the foundational document, which in text and spirit, aims at social transformation namely, the creation and preservation of an equal social order. The Constitution represents the aspirations of those, who were denied the basic ingredients of a dignified existence. (paragraph 74)

This reminiscent of Granville Austin’s famous line, that the fundamental rights chapter was framed amidst a history of fundamental wrongs. In these paragraphs, Justice Chandrachud argues that the meaning of fundamental rights ought be determined by asking the following question: what was the legacy of injustice that the Constitution sought to acknowledge, and then transform? That legacy was defined by social hierarchies and social subordination. At its most virulent form, this took the shape of caste untouchability. However, caste was not the only axis for exclusion from, and subordination within, the social order. There were others, prime among which was, of course, sex. Consequently, as Justice Chandrachud observes:

The incorporation of Article 17 into the Constitution is symbolic of valuing the centuries’ old struggle of social reformers and revolutionaries. It is a move by the Constitution makers to find catharsis in the face of historic horrors. It is an attempt to make reparations to those, whose identity was subjugated by society. (paragraph 75)

It is, of course, important not to overstate the case. Not every form of discrimination or prejudice can fall within Article 17. The framers did after all use the specific word “untouchability”, limiting the sweep of the Article only to the most horrific kind of discrimination. Chandrachud J. is aware of this, because he then goes on to justify why exclusion based on menstruation falls within Article 17:

The caste system represents a hierarchical order of purity and pollution enforced by social compulsion. Purity and pollution constitute the core of caste. (paragraph 76)

And of course, it is purity and pollution that are at the heart of excluding menstruating women – not just from temples but, as regularly happens in our country – from all forms of human contact during the menstrual period. Chandrachud J.’s important insight, therefore, is this: the social exclusion of a set of people (who are in any event historically subjugated), grounded in ideas about purity and pollution, amounts to a manifestation of the kind of “untouchability” that the Constitution seeks to prescribe. This does not mean, of course, that it is not caste-based untouchability that is at the heart of Article 17; nor does it seek to dilute the severity of that institution, or the Constitution’s commitment to wipe it out. What it does acknowledge, however, is that the same logic that is at the base of caste-based untouchability, also takes other forms and other manifestations. These manifestations may not be at the core of Article 17, but they do deserve its protection:

Article 17 is a powerful guarantee against exclusion. As an expression of the anti-exclusion principle, it cannot be read to exclude women against whom social exclusion of the worst kind has been practiced and legitimized on notions of purity and pollution. (paragraph 75)

And therefore:

The caste system has been powered by specific forms of subjugation of women. The notion of “purity and pollution” stigmatizes the menstruation of women in Indian society. In the ancient religious texts and customs, menstruating women have been considered as polluting the surroundings. Irrespective of the status of a woman, menstruation has been equated with impurity, and the idea of impurity is then used to justify their exclusion from key social activities. (paragraph 81) (internal footnotes omitted)

In an important way, this links back to the previous argument about essential religious practices. It is obviously absurd to compare the exclusion of women (and mostly upper-caste women at that) from a temple with “untouchability” as we understand it. But that is something that Chandrachud J. very consciously does not do. What he does do is to link the underlying basis of the exclusion in Sabarimala with something that goes far beyond, and permeates very layer of society: this is why he specifies that the idea of impurity justifies exclusion from “key social activities.” In other words, it is not about exclusion from worship, but – yet again – how that exclusion both reinforces and is reinforced by an existing and overarching set of discriminatory institutions and systems.

Exist, Pursued by a Bear: Narasu Appa Mali 

There is one more important thing that Chandrachud J. does in his concurrence. Noting that the exclusion of women has also been justified on the basis of “custom”, he examines – and overrules – the Narasu Appa Mali judgment on the specific point that customs are not subject to fundamental rights.

In terms of outcomes, this is not new: in Madhu Kishwar v State of Bihar, the Supreme Court has already held that customs are subject to fundamental rights. However, that case did not examine Narasu: here, Chandrachud J. does, and specifically finds that its reasoning is flawed.

This is very important, because Narasu also held that “personal law” – that is, uncodified religious law – was outside the scope of fundamental rights review. The reasoning for that was the same, and so, also stands discredited. As Chandrachud J. points out, the reasoning given by the Bombay High Court in Narasu – that, for example, the existence of Article 17 shows that the framers intended to specifically include customs that they wished to proscribe – does not hold water. More importantly, however, is the affirmative case that Chandrachud J. advances:

Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny, is to deny the primacy of the Constitution. (paragraph 99)

In other words, there cannot be islands of norms and prescriptions that are granted constitutional immunity.  As with the ERP and the untouchability argument, the rationale is the same: the individual is the basic unit of the Constitution, and norms, practices, prescriptions, rules, commands and whatever else that have the potential to impair individual dignity or block access to basic goods in society, must pass constitutional scrutiny (paragraph 100).

And indeed, Chandrachud J. goes on step further with this thought, noting that the ERP test itself ought – in future – give way to a test that asks not whether a practice is “essential” (which is, after all, a question that the believers, and not the Court, should answer), but asks whether the impugned practice is socially exclusionary, and denies individuals access to the basic goods required for living a dignified life (Disclaimer: this part of the judgment cites an article of mine, and I will readily admit to being biased in favour of the anti-exclusion argument.)

Conclusion

In the previous post, we discussed Malhotra J.’s dissent. We saw how Malhotra J. raises an important question: how do we reconcile the Constitution’s commitment to pluralism with judicial intervention into internal religious affairs? We have now seen how Chandrachud J. has answered it: the commitment to pluralism and respect for group autonomy must be understood within a Constitutional framework that places individual freedom and dignity at its heart. The Constitution recognises group autonomy because, often, group life promotes individual freedom and dignity. Community, after all, is crucial to self-development. But groups can also restrict freedom and dignity, and it is in those circumstances that a Court must step in and balance the competing claims.

In Sabarimala, Chandrachud J. attempts to demonstrate how, in fact, the proscription in question does restrict freedom and dignity, and therefore, should be judicially invalidated. He does so by telescoping outwards from the singular event itself (exclusion from worship in one temple), and showing how this single event of exclusion is nested in an entire social and institutional order that is characterised by hierarchy, subordination, and exclusion. We may call this patriarchy, or we may call this something else, but the argument is clear: it’s not about worship at Sabarimala (which is what Malhotra J. limits it to, and therefore classifies it as simply about seeking morality or rationality), but about what exclusion from worship means in a broader context. To take an example: think of a Whites-Only signboard outside a restaurant in Apartheid South Africa. The point is not that one private restaurant owner has decided to exclude blacks from his private property. The point, rather, is how that signboard is an integral element of the practice and institution of apartheid. The crucial insight that Chandrachud J. brings in his judgment is that recognition of the institutional character of discrimination and inequality, and how that must be constitutionally combatted. As he notes, towards the end:

In the dialogue between constitutional freedoms, rights are not isolated silos. In infusing each other with substantive content, they provide a cohesion and unity which militates against practices that depart from the values that underlie the Constitution – justice, liberty, equality and fraternity. Substantive notions of equality require the recognition of and remedies for historical discrimination which has pervaded certain identities. Such a notion focuses on not only distributive questions, but on the structures of oppression and domination which exclude these identities from participation in an equal life. An indispensable facet of an equal life, is the equal participation of women in all spheres of social activity. (paragraph 117)

It is that which makes it a transformative judgment.

14 thoughts on “The Sabarimala Judgment – III: Justice Chandrachud and Radical Equality

  1. No wonder the law is so bewildering/baffling to the layman. In the previous post, the Malhotra dissent seemed reasonable in one way. The very next post shows that another approach is possible. Therefore, Gautam, with this judgement, is it now possible for, say, someone like Yesudas to approach the court with a demand to be allowed entry into Guruvayoor temple? If not, why not? After all he seemingly is devoted to the same god, is likely to follow the requirements of that temple or faith, is a devotee even though he belongs to a different religion. Is this admonition which disallows non-Hindus to participate in worship there not the same as apart-hood or untouchability in many ways?
    Yes, I do think it will open the doors (oops, pun) for other demands elsewhere, too. Mind you, as an atheist, I do not see why any religious entity would prohibit followers from visiting its place of worship or, for that matter, why any follower would insist upon rationality to be the principle in deciding what the entity must or must not do.

  2. Chandrachud J replied correctly to the riders placed by Indu Malhotra J.In nutshell the Constitution of India is supreme and all other Constitutions of religions and groups have to be in tune with the Constitution of India, it is as simple as that…..the ignorance and prejudices on the part of litigants and advocates have made the same as if it is rocket science…..

  3. I think that J. Chandrachud has gone overboard with this verdict.

    Specifically, the first point that I have an issue with are the lines – “The stigma around menstruation has been built up around traditional beliefs in the impurity of menstruating women. They have no place in a constitutional order. These beliefs have been used to shackle women, to deny them equal entitlements and subject them to the dictates of a patriarchal order. (paragraph 57)”

    It is important to note that J. Chandrachud has as issue – not with actions – but with beliefs. That is deeply troubling. If one agrees that “having beliefs” can be unconstitutional, then both free speech and privacy lose their meaning. This is unlikely since it is settled law that only actions can be illegal / unconstitutional. So now the question is – how germane is the word “beliefs” to the rest of the case? Can we replace it with actions?

    Unfortunately, it is the core of the argument. First, the actions involved in stigma around menstruation are too numerous to list and too intertwined with “relatively justifiable” ones (for instance, “dirty menstruating women” are “discouraged” to draw water from the well – which is probably physically demanding or are “encouraged” to sleep on separate bedding – judge this in an era when sanitary napkins were not available). I, for one, am unable to see how the SC can go about criminalizing, say, a mother in law TELLING her daughter in law that it is the custom of their house that menstruating women do not enter the kitchen. Similarly, the linkage to untouchability is only via these beliefs – and not via any actions.

    The second point that I have an issue with the statement “This is then employed to deny access to spaces to which women are equally entitled.”. At the heart of it, this statement says that temples are “public spaces” where “constitution morality applies”. Again, there is no getting away from this. Social context is fine but imposing non discrimination requires either calling the temple as a public place or micromanaging behaviour of private entities. The second option will evidently not do, hence the statement that basically calls temples as public places but not explicitly.

    If temples really are public places then restrictions in temples should be no broader than in other places. Can temples really require people to not wear revealing dresses in their premises – much less cover their head? Can temples ban people from eating, say, meat in their premises? Or, to take an extreme example, if the Ram Janmabhoomi case were to be decided in favour of Muslims and a mosque be buit there, can a Hindu be prevented from entering a “public place”, chanting the name of Ram and indulging in idol worship?

    J. Chandrachud partially seeks to overcome these objections by claiming that religious questions and social questions are intertwined, that the constitution clearly allows interference into social questions and hence religious questions are fair game. My counter argument is that this actually shows the limits of using the Constitution as a transformative document for social change. If religious or social practices are allowed only subject to “constitutional morality” then constitutional morality itself will become a religion. Worse, we will no longer be secular since “constitutional morality” will be the only religion allowed.

    For instance consider the argument – “The stigma around meat eating has been built up around traditional Brahminical beliefs in the impurity of meat. They have no place in a constitutional order. These beliefs have been used to shackle the lower castes, to deny them equal enjoyment of their preferred food habits and subject them to the dictates of the Brahmin.” – and its application to force Langars to serve meat.

    In my opinion, social evils are truly evil when the associated institution is dominant; the remedy is NOT to destroy all such institutions (or subject them to laws) but rather to have a variety of institutions so that none become dominant. And the Constitution must consider itself as one of the same set. Hence, the only way out is for the Constitution to limit itself – first by keeping as aloof from religious and social questions as possible, and second by enabling a richer variety on institutions – the family, extended family, university, sects etc. by MINIMIZING the ability of the bureaucrat to interfere with them.

    Trying to cure social evils by changing the dominant institution initially seems very seductive but over time the dominant institution creates its own social evils – just take a look at Islam (which ‘cured’ so many evils in the medival period) or even political correctness movements (people can lose a job due to a single tweet – hello freedom of expression).

    Which opens the issue of what are courts and legislatures to do about social evils – practices like caste discrimination, female foeticide and untouchability. My first question is – if seventy years later, we still need a law against untouchability what is the point of it anyways? On the other hand, we are still waiting for laws that are actually able to prevent an accussed from being tortured in jail – something that is not allowed even for an enemy combatant (who by definition does not have right to life). Personally, I think the courts should spend more time on fixing issue like these rather than turn social reformers – especially on issues that have little practical impact.

    • This is one the few times where reading comments was more fun than reading the actual post.
      Do you have any other write-ups on the same issue anywhere? If yes, please share.

    • Totally disagree with Nirmesh’s view.
      Firstly, his argument that that Chandrachud J has an issue with beliefs, not actions. In Sabarimala case, the belief does not remain limited at the conceptual level of pure thought; rather, it drives actions of the temple board in banning women within a specific age group from entering the temple. Therefore, not just the action, but the thought propagating the action, is pernicious and should be challenged.

      Let’s take the example cited by him of a MIL TELLING her DIL about the custom of the house banning menstruating women from entering the kitchen. Taking this example to its logical conclusion: yes, it is completely within the rights of her DIL to challenge the MIL in a court of law IF this belief of MIL/ custom of the house bars the DIL from entering the kitchen on specific days (I.e. an ACTION taken by MIL basis her beliefs). Let’s not forget that though MIL might be the dominant party in the house, the DIL has an equal right and say in the house and her entry to the kitchen should not depend on MIL’s interpretation of customs of the house.

      The key mistake that many (male) commentators seem to make is to assume customs to be immutable. They clearly are not. E.g. going back 150-200 years, getting daughters married before their menarche was a custom followed by a majority of Hindus. With social progress AND impact of laws prohibiting child marriage, that custom has largely faded. Communities following the custom of child marriage did oppose laws abolishing this custom. At the time when laws against child marriage were enacted, they would have raised the same spectre of “essential practices”, “group autonomy” and so on. But today, one wouldn’t question the justice and utility of these laws.

      The argument about having a variety of institutions so that none become dominant: is similar to arguments made by high caste Hindus in Maharashtra who opposed entry of untouchables in temples who suggested separate temples for untouchables (e.g. Patit pavan temple). A separate institution does not demolish a pernicious custom; it rather circumvents it and allows it to continue longer than it should. Would Nirmesh now oppose entry to lower caste Hindus into temples on the grounds that it is against the beliefs of Hinduism?

      His argument about legislature staying out of banning social evils and fixing issues such as torture in custody: Turning the argument on its head, laws banning untouchability are NOT futile precisely because they are still needed 70 years after independence. The law must exist because the social issue has not gone away. Nirmesh must be extremely optimistic if he thinks that torture in custody continues ONLY for the want of a law prohibiting it and that it would stop the moment a law is enacted prohibiting it. After all, torture is an ACTION based upon a BELIEF about the lack of rights of prisoners. The law will prohibit the ACTION and thereby challenge the belief. Banning the action will itself go a long way towards altering the beliefs.

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