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Religious Denominations: Constitutional Transgressions in the Sabarimala Verdict

by
Antar Darshi

(antardarshi@rediffmail.com)

 


Table of Contents

  1. Introduction
  2. The Spirit of the Constitution of India
  3. The Judgement’s Introduction [paras 1-4]
    3.1 “Subject to Morality”
    3.2 The Ambit of Civil Rights
    3.3 The Judgement’s Introduction transgresses the Constitution
  4. The Sabarimala Case [paras 5-87]
  5. Religious Denomination [paras 88-96, 144(i)]
    5.1 Article 26 of the Constitution
    5.2 The Shirur Judgement
    5.3 The S. P. Mittal Judgement
    5.4 The Vellala Case
    5.5 The Current Judgement
  6. Summary and Conclusions

1.  Introduction

The 4-1 Sabarimala verdict of the Supreme Court of India is extra-Constitutional, as we have argued in a companion article titled “Sabarimala Verdict is Extra-Constitutional”. In this article, we point out the individual transgressions of the Constitution in that verdict.

We adhere to two guiding principles while identifying the Constitutional transgressions of the judgement:

(i) the doctrine of “basic structure” laid down for the interpretation of the Constitution by the Supreme Court in its landmark 1973 Swami Kesavanada Bharati judgement, and

(ii) the Preamble as the guiding light for resolving ambiguities in the Constitution, again as laid down by the Supreme Court in the same landmark 1973 judgement.

2. The Spirit of the Constitution of India

Let us first look at the Preamble to the Constitution of India before analysing the judgement. The Preamble provides the foundational thoughts for the Constitution. In fact, in a landmark judgement in 1973 by a 13-Judge Constitutional Bench of the Supreme Court in the Swami Kesavananda Bharati vs. State of Kerala case, numerous judges of the Supreme Court constitutional bench held that the Preamble defines the basic structure, goals, underlying aspirations, etc. of the Constitution, that the Preamble is an integral part of the Constitution, and that the Preamble is to be used to resolve ambiguities in the Constitution. Thus, the Preamble sets the direction and provides an overarching framework for the interpretation of the Constitution.

The original Preamble starts by declaring India to be a Sovereign Democratic Republic and then immediately proceeds to secure for its citizens Justice, Liberty, Equality, and Fraternity. Interestingly, the preamble explicitly spells out Justice to be in the social, economic, and political spheres, it does not mention spheres of belief or faith. Whereas, in the very next sentence it proceeds to explicitly spell out for its citizens Liberty in thought, expression, belief, faith and worship. Thus, one can conclude that the framers  of the constitution saw that the concept of justice does not make sense in the domains of belief and faith. The fact that the Preamble does not set out to ensure justice in matters of belief or faith is a precursor to how the Constitution subsequently treats religion as something beyond its purview, explicitly granting freedom to individual religions and religious denominations to manage their own affairs, as we will see shortly.

Further, the Preamble sets out to secure Equality of status and opportunity, but not equality of belief or faith. In contrast, the current judgement is violative of this very spirit of the Preamble and the Constitution, viz., of the separation of religion from mundane notions of equality and justice. The Constitution has granted Liberty in religious matters without imposing mundane notions of Justice and Equality and Fraternity. The word mundane has an important meaning in this context: it refers to things of this earth as opposed to spiritual matters.

3. The Judgement’s Introduction

The judgement’s introduction, written by two of the four majority-opinion judges, including the Chief Justice, outlines the thought foundation of the judgement.

The first paragraph has general opinions about women’s equality. The second paragraph provides opinions about women’s equality in the religious sphere. One sentence says:

There is inequality on the path of approach to understand the divinity“.

This statement transgresses the Constitution to start administering religion, because Article 26 of the Constitution explicitly states:

every religious denomination or any section thereof shall have the right … to manage its own affairs in matters of religion“.

As described in the companion article mentioned at the beginning of this article, not just Article 26 but also the Constitution’s entire structure and text explicitly separate religious matters from civil matters, and delegate the management of religious affairs to respective religious denominations. Thus, the second paragraph of the introduction is a fundamental transgression of the Constitution. The rest of the second paragraph goes on to list numerous opinions on and suggestions for managing a religion, all of which should be stricken from the judgement as beyond the jurisdiction of the Judiciary via a proper review of the judgement by a suitable full Constitutional bench of the Supreme Court.

The third paragraph of the judgement continues to make extra-jurisdictional comments about the management of religion, in violation of Article 26 of the Constitution. The fourth paragraph is worse, it not only transgresses jurisdictional boundaries but also makes statements about religion that are in complete contradiction to what the two largest religions of the world, Christianity and Islam, believe, profess, and practice. This is addressed in detail in the companion article.

3.1 “Subject to Morality”

An argument that can be deployed in favour of the first four paragraphs of the introduction is that Article 26 begins with the condition
Subject to public order, morality and health“.

The possible argument on behalf of the four paragraphs is that they exercise the said morality condition in checking the granted freedom of religion. That raises the question of what is meant by the word “morality” as used in the Constitution, what is the ambit of the word, and so on. While the dictionaries of English generally define morality as “the principles of good and bad behaviour“, the Stanford Encyclopaedia of Philosophy defines morality in a more nuanced manner as follows:

… the term “morality” can be used either:
(i) descriptively to refer to certain codes of conduct put forward by a society or a group (such as a religion), or accepted by an individual for her own behaviour, or
(ii) normatively to refer to a code of conduct that, given specified conditions, would be put forward by all rational persons.”

Here, an important question arises: should one accept the descriptive meaning of morality, whose sources are in religion, or the normative sense of morality, whose sources are in rational behaviour? Following the “basic structure doctrine” of the Constitution, where civil and religious matters are kept separate, and keeping in mind all the religious freedoms granted by the Constitution, the logical conclusion one is forced to draw is that morals in religious matters are the domain of that particular religion, and are beyond the jurisdiction of the Judiciary, so long as they do not infringe on morals in civil matters. Very specifically, civil rights such as the right to life and the right to equal access to public facilities and infrastructures can not be violated by a religious morality that says people of certain castes or gender can not have those civil rights. At the same time, circumscribed civil rights do not carry over to the religious domain.

3.2 The Ambit of Civil Rights

Let us consider some examples that illustrate the above points. Suppose a religious moral says that a person of a particular description does not have the right to life when that person is within a religious institution. An example of this would be human sacrifice in some religion. That religious moral violates the civil right to life since the since civil right to life is not circumscribed by the Constitution to only locations outside religious institutions. Article 21 of the Constitution simply states, without any additional conditions or examples, that
No person shall be deprived of his life or personal liberty except according to procedure established by law“.

In contrast, the civil right of equal access to public facilities and infrastructure is clearly circumscribed, i.e., restricted, since Article 15(2) of the Constitution clearly restricts such rights to public places such as “shops, public restaurants, hotels and places of public entertainment” (clause A) and to State-funded facilities for the use of the general public such as “wells, tanks, bathing ghats, roads and places of public resort … dedicated to the use of the general public” (clause B).

So, for example, a private property is not subject to the access rights given by this article, otherwise the entire concept of private property would itself disappear, and you would have to allow anybody and everybody to come into your own private house! Even non-public government offices do not have to grant the right of equal access to the citizen, let alone the properties of private companies or individuals. Theatres can restrict access to adults only, Parliament can restrict access to specific visiting times, the Supreme Court can restrict access to specific parts and times, and so on. Further, by clause C of the same Article 15, a Ladies Club or women’s college can restrict access to its facilities to only women, a train compartment can be restricted to only women even though it is a public facility. By placing such restrictions, the citizen’s civil access rights are not diminished in any manner. Article 15(3) itself specifically allows for general civil rights themselves to be curbed where necessary, by allowing for special provisions for women and children.

Thus, a religious moral that says only certain castes or gender are allowed to access a place of worship does not violate these civil access rights: a religious institution or property is not public property, it has rights similar to that of private property, and it is explicitly granted the right to be administered by its respective religious denomination by Article 26 of the Constitution which says “administer such property in accordance with the law“. Every private property also has to be administered according to the law, thus restricting access is not a violation of the law. For example, an office can restrict access to only its employees, a university can restrict access to only its students, and even a public bathroom can restrict access to only a particular gender. They are all being administered in compliance with the law even when they so restrict public access.

Thus, the condition “Subject to ..morality..” in Articles 25, 26 and other articles of the Constitution can not be used loosely by the judiciary to transgress Article 26 and start managing the religious affairs or institutions of individual religions.

3.3 The Judgement’s Introduction transgresses the Constitution

In summary, the entire Introduction of the Sabarimala judgement is a transgression of Article 26 of the Constitution, the spirit of the Constitution as outlined in the Preamble, and the basic structure of the Constitution that we have described in the companion article. The entire introduction would be stricken from the judgement by a bench that interprets the Constitution according to the Supreme Court’s laid-down doctrine of “basic structure” and according to the Preamble, these two being the principles required to be followed in interpreting the Constitution.

4. The Case Itself

The next several paragraphs of the judgement, viz. paragraphs 5 through 87 summarize the contention of the petitioners, prior history of the case in lower courts, the submissions of interveners, respondents, Amicus Curiae, etc, and counter-submissions, etc, and are not subject to any explicit analysis here.

5. Religious Denomination

The first part of the judgement is about whether the followers of Lord Ayyappa form a separate “religious denomination”. This is an important issue, because the Constitution grants any religious denomination, or section thereof, the right to manage its own religious affairs and its own religious properties.

Paragraphs 88 through 96 of the judgement deal with this aspect, and paragraph 144(i) summarizes the conclusions of the first two judges that the devotees of Lord Ayyappa do not constitute a separate religious denomination. The justifications given in paragraph 144(i) are two prior judgements of the Supreme Court, in the Shirur Mutt and the S. P. Mittal cases, and the two judges’ conclusion that, as required by those two judgements, the Ayyappa devotees “do not have common religious tenets peculiar to themselves, … other than those common to the Hindu religion“.

Let us now understand what those two earlier Supreme Court judgements ruled, as explained in paragraphs 88 through 96. Let us also analyse the conclusion of the two judges based on the concept of “common religious tenets”. English dictionaries such as the English Oxford Living Dictionaries, the Cambridge English Dictionary and the Merriam-Webster Dictionary roughly define “tenet” to be a principle or belief, for example on which a religion is based. Keeping this in mind, let us examine whether there is a need for religious denominations to have “common religious tents peculiar to themselves“.

5.1 Article 26 of the Constitution

Paragraph 88 recounts Article 26 of the Constitution, which we have explained earlier and in the companion article. The important thing to note here is that Article 26 does not use the word “tenet” anywhere, nor does it use the word “religion” anywhere; instead, it grants various rights to “every religious denomination or any section thereof“.

5.2 The Shirur Judgement

Paragraph 89 highlights the first Supreme Court ruling on what constitutes a religious denomination, in the Shirur Mutt case. In that judgement the Supreme Court affirmed the Sirur Mutt — one of eight Mutts of the Madhwa philosophy and affiliated to the Udupi Krishna Temple, having been established by the philosopher Madhwacharya — to be a religious denomination.

The Shirur judgement refers to the then Oxford Dictionary definition of denomination to mean a religious sect or body having a common faith, an organization, and a distinctive name. Now, this is problematic because other equally definitive English dictionaries such as the English Oxford Living Dictionaries (which defines it as “A branch of any religion“) and the Cambridge English Dictionary (which defines it as “a religious group that has slightly different beliefs from other groups that share the same religion“) basically define a denomination to be just a branch of a religion, without specifying any technical requirements such as having to have an organization or a formal name.

Nevertheless, the Shirur judgement goes on to recognize every “spiritual fraternity” (such as Shivalli Brahmins) professing to be followers of a Philosopher to be a denomination, assigning to them an organization in the form of their Mutt and a name in terms of the philosopher they follow (such as Madhwacharya, Ramanujacharya, or Shankaracharya), so as to satisfy the Oxford Dictionary definition of denomination. The spirit of the judgement, however, is made clear by its earlier statement:
A galaxy of religious teachers and philosophers .. founded different sects  and sub-sects of the Hindu religion that we find in India at the present day. Each one of such sects or sub-sects can certainly be called a religious denomination“.

Thus, if a section of the followers of a human being philosopher are recognized as a denomination, then certainly a section of the followers of a deity such as Lord Ayyappa will logically have the same recognition as a denomination. The technical requirements of an organization and a name specified by a Western dictionary of a Western language cannot be used as criteria to deprive a section of people of denominational rights, especially when other Western dictionaries provide alternative meanings that lack those technical requirements. Doing otherwise would amount to, for example, denying a person born in India the recognition of his being alive just because he was not given a birth certificate when he was born at home in a rural part of India several decades ago when paperwork was not pervasive and the person did not undergo schooling and does not work for any company or organization!

Furthermore, at the time of adoption of the Constitution, India was a new country and mechanisms for registrations would have been freshly set up. It is laughable to think that a Madhwacharya or Ramanujacharya or Shankaracharya would have rushed to the nearest government office to register an organization and give their group a name as soon as they founded their schools of philosophy. It is even more laughable to think that the framers of the Constitution wanted to restrict the rights of such centuries-old religious groups on the technical requirement of registering themselves in the new administrative settings of the new country.

In fact, Judge No. 5 quotes — in paragraph 12.8 of her dissenting judgement in the Sabarimala Verdict —  the following sentences from the judgement of Justice Chinnappa Reddy in the S. P. Mittal case (which we discuss in detail next) which buttress our point:

The followers of Ramanuja, .. Madhwacharya, .. Vallabha, the Chistia Soofies have been found or assumed by the Court to be religious denominations. It will be noticed that these sects possess no distinctive names except that of their founder-teacher and had no special organisation except a vague, loose, un-knit one. The really distinctive feature about each one of these sects was a shared belief in the tenets taught by the teacher-founder. We take care to mention here that whatever the ordinary features of a religious denomination may be considered to be, all are not of equal importance and surely the common faith of the religious body is more important than the other features.” — Justice Chinnappa Reddy

The imposition of any technical restrictions by the judiciary contrary to the spirit of the Constitution would amount to the courts restricting the rights granted by the Constitution, which would then be a violation of the Constitution as Article 13(2) prevents even the State from doing so:
Article 13(2): The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

The Part referred to by Article 13(2) above is its Part of the Constitution, viz., “Fundamental Rights”. Thus, any intent on the part of the Shirur judgement, or on the part of any interpretation of the Shirur judgement, to impose technical requirements of an organization and a name for recognition as a religious denomination would amount to a contravention of the Constitution. That would be so even if it were to be done by the Legislature. The Judiciary does not even have jurisdiction in this matter: it simply cannot impose any such additional restricting requirements when trying to interpret the Constitution.

Finally, the Shirur judgement itself is an indication that words and the dictionary meanings of specific words are used only in spirit and not literally. Otherwise, the usage by the judgement of the term “sect” would automatically eliminate the Shirur Mutt from recognition as a denomination, because a “sect” is a defined by English dictionaries to be a splinter group of a religion that is heretic, i.e., one that rejects major parts of its root religion! The Cambridge English Dictionary defines “sect” to be “a religious group that has separated from a larger religion and is considered to have extreme or unusual beliefs or customs“. The English Oxford Living Dictionaries define sect to be “a group of people with somewhat different religious beliefs (typically regarded as heretical) from those of a larger group to which they belong“. Certainly the Shirur Mutt does not fit either of the above two definitions of sect: neither is it heretical nor does it have extreme or unusual beliefs or customs compared to general Hinduism. Whereas, the Shirur judgement has literally said that a galaxy of Hindu religious teachers and philosophers have founded different sects and sub-sects! The Shirur judgement includes the Shirur Mutt, founded by the philosopher Madhwacharya, amongst these sects! So it is clear that the technical verbiage in the Shirur judgement is not to be taken literally. Taking individual parts of this judgement literally instead of taking the overall spirit of the judgement will render this judgement itself self-contradictory, incoherent, and dysfunctional, leading to the collapse of the judgement itself.

Therefore, the spirit of the Shirur judgement is to be taken rather than any literal meanings or technical requirements. The spirit of the judgement is that any group of people following any variant of Hinduism or even any interpretation of Hinduism by any philosopher form a religious denomination.

In summary, it is amply evident that the Shirur judgement is very clear about the spirit of the term “denomination”: it accords the recognition of religious denomination to any group of people that follow any specialisation of the Hindu religion. The judgement is generous in recognizing all philosophers, their followers, and even sections thereof as being separate religious denominations.

5.3 The S. P. Mittal Judgement

Next, the Sabarimala judgement reviews (in paragraphs 90, 92, and 92) a judgement of the Supreme Court in an S. P. Mittal case that was subsequent to the Shirur case. In the S. P. Mittal case, the question to be decided was whether the followers of another philosopher, Sri Aurobindo, formed a religious denomination or not.

As per the summary given in paragraph 90, the court had ruled in the S.P. Mittal case that the teachings and utterances of Sri Aurobindo did not constitute a religion, and therefore his followers did not form a religious denomination. Thus, this judgement rules that a philosopher has to be part of an existing religion for his followers to become a denomination. Article 26 uses the term “religious denomination” to grant rights, so the expectation of religion is okay, although some other petitioners might have argued that Sri Aurobindo’s teachings themselves form a religion under Article 25.

However, on examining the actual words of the original S. P. Mittal judgement, as listed in paragraph 91 of this Sabarimala judgement, it becomes clear that the court was only ruling about the Sri Aurobindo Society and not about all the followers of the philosopher. The Society’s Memorandum of Agreement explicitly states: “membership is open to people everywhere without any distinction of nationality, religion, caste, creed...”. Naturally, the court ruled the Society as not a denomination since the Society itself has explicitly said that its membership is not based on religion. Again, the court ruling was only about the Sri Aurobindo Society based on its MoA and not about the followers of Sri Aurobindo in general. In fact, in his concurring judgement in this case, Justice Chinnappa Reddy stated the following:
“Religious denomination has not to owe allegiance to any parent religion. The entire following of a religion may be no more than the religious denomination. This may be particularly so in the case of small religious groups or developing religions, that is, religions in the formative stage.” — Justice Chinnappa Reddy

Paragraph 92 states that S. P. Mittal judgement reiterated and concurred with the definition of religious denomination given in the Shirur judgement, specifically about the three requirements of a group of people, an organization, and a name. We have discussed the merits of the literal versus the technical interpretations of these requirements in the previous sub-section on the Shirur verdict.

The summary so far from the Shirur and S. P. Mittal judgements is that followers of religious philosophies form denominations, the S. P. Mittal judgement does not in any way dilute or further restrict the spirit of the Shirur judgement.

5.4 The Vellala Case

Next the judgement reviews the Vellala Community case in paragraph 93. Here the issue was whether a temple at Nellor owned by the Vellala Community of Marthandam constituted a religious denomination. The Vellala community being caste-based and occupation-based, rather than religion-based, was deemed by the court to not be a religious denomination. This is fair enough because the Vellala community is primarily a community of landowners and agriculturists, with their members spread across Shaivite and Vaishnavite philosophies and the Vellalas themselves having no unique religious philosophy or principles or observances of their own.

The main part of this case was about a particular temple being managed by the Vellala community could be managed on caste basis. The petitioners had tried to argue on the basis of religious denomination of the Vellala community, which was clearly the incorrect approach. Further, the management of the temple had passed to the Government which had invited objections before appointing non-Vellala people to management posts in the temple, and no objections had come forth. After some years an object was sought to be raised on the basis of religious denomination. It was argued that only Vellala community members had been historically allowed into the innards of the temple. Refuting the denomination argument, the court rejected the selective entry argument also since it was based on caste and not any religious practice.

The proper argument in this case would have been that the Hindu religion, which has denominational rights and to which the Nellor temple would belong in the higher parts of its religious hierarchy, has decided that the Nellor temple is to be run by the Vellala caste. Such a decision is perfectly within its (the Hindu religion’s ) rights to run its religious affairs, and such a thing is regularly done. For example, at the Tirupathi temple, per tradition people of a certain sub-caste only (Iyengars, say) can become priests, and people of a certain community only (cowherds, say) can open the temple doors every morning. These caste and community based decisions are the religious affairs of the Tirupati temple and outside the domain of civil notions of Equality and Justice. The Vellala case should have been argued on this basis and not on the basis of the Vellalas being a religious denomination.

The implication we can take from the Vellala case is that a religious denomination is based on shared religious tenets.

5.5 The Current Judgement

Now, based on the above paragraphs 88 through 93, the next paragraphs 94, 95, and 96 lay out the opinion of the first two majority-opinion judges about whether Ayyappa devotees form a religious denomination or not.

Paragraph 94 starts out by taking the literal meaning of the Shirur judgement, which we have argued against above, to state:
for any religious .. sect .. or section thereof to be designated as a religious denomination, it must be … a common organization … and last but not the least, the said collection of individuals must be labelled, branded and identified by a distinct name“.

In the next paragraph 95 it goes on to say:
Though the respondents have urged that the pilgrims coming to visit the Sabarimala temple.. are addressed as Ayyappans.. is unacceptable. There is no identified group called Ayyappans. Every Hindu devotee can go to a temple“.

Let us analyse the above two arguments. Firstly, the very need to have technicalities such as a name and an organization militates against the basic rights intended and provided for by the Constitution, as we argued above. Secondly, the outright dismissal of the presence of an identifiable group of Ayyappans reveals ignorance of the facts on the ground. Anyone in South India can easily identify and point out by sight an Ayyappa devotee by his dress, lifestyle, food habits, etc. There are not just a few thousand of them, there are crores of them every year. Unless the judgement means that there is no registered group of Ayyappa devotees, which would be a ludicrous requirement as argued above, this statement is wrong in fact and should be stricken from the judgement by a review bench. The further comment “Every Hindu can go to a temple” reveals further ignorance about how people go to the Sabarimala Ayyappa temple. In fact, this statement in the judgement endorses the fact that the Sabarimala Ayyappa devotee belongs to a separate religious denomination whose practises the judgement is not even aware of.

The paragraph then goes on to say:
We have also been apprised that there are other temples for Lord Ayyappa and there is no such prohibition. Therefore, there is no identified sect”.

The conclusion drawn in the second statement above is illogical, because the first statement provides evidence that the followers of the Sabarimala Temple of Lord Ayyappa (as opposed to other temples of Lord Ayyappa) are bonded by the shared religious tenet of “prohibition” in the judgement’s words, i.e., that they need to practise 41 days of abstinence in various forms before they can visit the Sabarimala temple. This is sufficient evidence that they share a unique religious principle, that their deity requires the practice of abstinence; followers of almost no other Hindu temple have this belief, and at the same time the Ayyappa devotees follow other aspects of Hindusim. Thus the Ayyappa devotees form a clearly identifiable branch of Hinduism, that is, a religious denomination or section thereof. So, what the above two sentences of paragraph 95 have done is to first provide evidence that the Ayyappa devotees of Sabarimala Temple form a religious denomination, and then gone on to declare in the second sentence that they are not a religious denomination. This error is school-boyish, a high school teacher would mark the second sentence as incorrect.

Having said that Ayyappa devotes do not have an identified group, the judgement goes on to say in the next paragraph (96) :
..there is nothing on record to show that the devotees of Lord Ayyappa have any common religious tenets peculiar to themselves...”.
We just demonstrated above that this judgement itself states that the devotees of Lord Ayyappa of the Sabarimala temple follow certain “prohibitions”, which even other temples of Lord Ayyappa do not enforce. In contrast, the followers of Shirur Mutt do not have anything that is even close to such distinguishing beliefs or practises to distinguish them from the other seven Mutts of Madhwa philosophy that have the affiliated Udupi Temple, and yet the Supreme Court recognised the Shirur Mutt followers as a denomination (and not just a section thereof). Having faith and belief in, and thereby following, a select set of prohibitions is exactly what would qualify as having a common religious tenet or belief. We reiterate again that the Constitution does not use the word “tenet” anywhere, it is a word used in the Vellala judgement and repeated loosely in this judgement. The Constitution, and the Shirur judgement, use specialization of faith and belief to indicate a religious denomination, and the above practise of the Sabarimala Temple devotees is sufficient to identify them as a religious denomination. In any case, as argued in the companion article, anyone practising a religion has to be part of some denomination of that religion, so the Ayyappa devotees have to be at least a section of some religious denomination by default. Thus, not recognising the Ayyappa devotees of the Sabarimala Temple as a religious denomination is a violation of the standards set down by the Shirur judgement as well as extra-Constitutional as argued in the companion article.

Paragraph 96 goes on to make another superfluous claim:
For a religious denomination, there must be new methodology provided for a religion“. This stands in violation of the standards set by the Shirur judgement, since the Shirur Mutt certainly does not set any new methodology compared to the other seven Mutts of Madhwa philosophy having the affiliated the Udupi Temple. Further, this requirement amounts to adding new restrictions to the term “religious denomination” used in the Constitution, and thus violates Article 13(2) of the Constitution and is extra-Constitutional.

As an aside, the second sentence of the quote above from paragraph 95, viz. “Therefore, there is no identified sect”, provides proof that this Sabarimala judgement itself is evidence that the words of a court judgement are to be taken in spirit and not literally. Because, this judgement uses the word sect in a context wherein no one is claiming either to be a heretic or to have separated from the original religion, as required by definitions of “sect” quoted above from standard English dictionaries. The judgement uses the word “sect” to mean a religious denomination, quite contrary to the dictionary definitions of both the terms! The paragraph further goes on to say “.. there are no exclusive identified followers of the cult“. By using the word “cult” when the question is about religious denomination, this judgement has made matters even worse for itself. A religious denomination comes nowhere near being a cult, so this judgement has further demonstrated that words are used rather loosely both within itself and in earlier judgements. For instance, by no extent can the Shirur Mutt, ruled to be a religious denomination by the Supreme Court, be thought of as a cult by the standard dictionary meaning of the word. Thus, for this Sabarimala judgement to take the words of the earlier Shirur judgement literally so as to specify narrow technical requirements for a religious denomination and thus rule Sabarimala Ayyappa devotees as not belonging to a denomination is either a parody of justice or a comedy of errors.

Finally, apart from all of the above arguments, a simpler and larger argument is that the Sabarimala Temple belongs to the Hindu religion, which has denominational rights to run its own affairs, and as part of those rights has decided to run the Sabarimala temple in a certain way. Just as the Tirupathi temple is run in a certain way. Note that if the branches of the tree of Hindu religion, i.e., religious denominations, have religious rights, then so does the trunk of the tree which is the Hindu religion itself.

As proof of the validity of all the above arguments, dissenting Judge No.5 points out in paragraph 5(xiv) of her judgement the respondents’ submission and her agreement that the Kerala High Court’s Division Bench, in the S. Mahendran vs. Travancore Devaswom Board case declared the status of the Sabarimala Temple as a religious denomination. The Honourable Judge goes on to point out that the said judgement not having been challenged by any party, is binding on all parties in the current case.

The opinions about religious denomination in the judgement of Judges No.1 and No.2  stop at paragraph 96 and are summarized as a judgement in paragraph 144(i), as described earlier.

6. Summary and Conclusions

The arguments about religious denomination laid out by the first two majority-opinion judges in paragraphs 88 through 96 of the Sabarimala judgement, and then their summary judgement on that particular issue in paragraph 144(i), are self-contradictory in places, illogical in places, take things literally rather than in spirit from the earlier Sirur judgement, impose additional restrictions on “religious denominations” that are neither intended nor specified in the Constitution, and thus overall are extra-Constitutional. In some parts of paragraphs 88 through 96, the logical errors are school-boyish and would not get past a competent high-school teacher. In addition, they are contrary to — yet do not refer — the judgement of the Kerala High Court in the S. Mahendran vs. Travancore Devaswom Board case, which judgement has not been directly challenged by any party at any time.

When as important and fundamental a decision as one of religious denomination is itself ridden with so many problems in this judgement, it is unnecessary to state that the entire judgement needs to be reviewed in toto by a separate, full, and fair Constitutional Bench of the Supreme Court. Until such time, the judgement needs to be stayed, given the irreversible impact of implementing the judgement. A Supreme Court Bench has posted a review petition for later rather than immediate hearing, noting something to the effect that this is not a case of hanging so as to be heard immediately. If so, this is also not a case of hanging to be implemented immediately, the implementation can also wait, if the Bench is actually unbiased and not motivated in its actions, as it is required to be. It is obviously surprising that the Bench used the “not a case of hanging” argument only in one direction and not the other.

We hope to analyse the other parts of this judgement in the coming days and add the analyses to this growing document.

In the meantime, we hope that the Judiciary and the Legislature recognize the foundational importance of the issues at stake here for the country, and take immediate remedial measures in the interests of the country.

~~~~~~~~~~~~~~~~~~~

 


NOTES

  1. Permission is granted to everyone to freely publish, translate, re-blog, publicise or otherwise disseminate this blog post either online or in print media, so long as the authorship byline is properly maintained and so long as the content is republished in toto without any changes, including the byline.
  2. Readers are requested/encouraged to translate this blog post into Malayalam and all other regional languages of India and disseminate the same widely.
  3. The ideas in this blog post may be freely used by anyone, if and where possible with due attribution.
  4. Comments that either pinpoint any flaws in the logic of this article or that further enhance the logic of this article are most welcome.

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Sabarimala Verdict is Extra-Constitutional

by
Antar Darshi
(antardarshi@rediffmail.com)


Abstract

An unbiased interpretation of the Constitution adhering to the doctrine of basic structure and as guided by the Preamble shows that the Sabarimala traditions are not only the fundamental religious rights of the corresponding denomination but also are duty bound to be protected by every citizen of India. The Supreme Court verdict on the Sabarimala issue is ultra vires the Constitution and over-reaches into the domain of the Legislature.


Table of Contents

  1. Introduction
  2. Flaw in the Foundation of the Judgement
  3. The Spirit of the Constitution of India
  4. Constitutional Rights: Civil Rights vs. Religious Rights vs. Cultural Rights
    • Civil Rights
      • The Ambit of Civil Rights
    • Religious Rights
      • “Subject to Morality”
    • Cultural Rights
  5. What the Constitution Directs the Legislature to do
  6. Fundamental Duties of the Citizen
  7. Summary: Constitutional Implications for Sabarimala Temple
  8. Conclusion: An Extra-Constitutional Judgement

1. Introduction

The 4-1 Sabarimala verdict of the Supreme Court of India — allowing women of all ages to enter the Sabarimala temple, thus breaking a long-standing tradition and upsetting millions of practising Hindu men and women — starts off with the following majority opinion:

The irony that is nurtured by the society is to impose a rule, however unjustified, and proffer explanation or justification to substantiate the substratum of the said rule“.

The ultimate irony is that the rest of the judgement does not reflect anywhere  on the possibility that this very same statement might become applicable to itself! In this article, we will argue and convince the reader that this judgement suits its own first statement, i.e., that it imposes a rule that is unjustified, and more so, one that is extra-constitutional.

The judgement starts with four paragraphs of “Introduction”, which lay the thought foundation on which the subsequent detailed judgement is based. Any cracks in this foundation affect the stability of the entire judgement. These introductory paragraphs turn out to be a very loose statement of opinions about religion, patriarchy, gender equality, etc. Let us start by examining them to check if there any major cracks in the thought foundation.

 

2. Flaw in the Foundation of the Judgement

Paragraph 4 of the Introduction of the Sabarimala judgement states:

All religions are simply different paths to reach the Universal One“.

The world’s largest religion, Christianity, in its Bible deems people who are not Christians to be heretics or infidels and deems them to not have “paths to reach the Universal One”.

The world’s second largest religion, Islam, in its Quran deems people who are not Muslims as Kafirs and deems them to not have “paths to reach the Universal One”.  Thus, a very foundational thought of this judgement is wrong in regards to the two biggest religions of the world. This shows that the judgement is not based on a proper basic understanding of religion, which is the basic issue in the case being adjudicated by this judgement.

Having identified such a major crack in the foundation, one that is enough to crumble the entire building, we skip discussing further flaws in the thought foundation of the judgement.

3. The Spirit of the Constitution of India

Now let us simultaneously look at the Preamble to the Constitution of India before proceeding to the judgement. Just as the judgement has an Introduction, our Constitution has a Preamble. Just as the introduction provides the foundational thoughts for the judgement, the Preamble provides the foundational thoughts for the Constitution. In fact, in a landmark judgement in 1973 by a 13-Judge Constitutional Bench of the Supreme Court in the Swami Kesavananda Bharati vs. State of Kerala case, numerous judges of the Supreme Court constitutional bench held effectively that the Preamble defines the basic structure, goals, underlying aspirations and such of the Constitution, that the Preamble is an integral part of the Constitution, and that the Preamble can be used to resolve ambiguities in the Constitution. Thus, the Preamble sets the direction and overarching framework for the interpretation of the Constitution.

The original Preamble starts by declaring India to be a Sovereign Democratic Republic and then immediately proceeds to secure for its citizens Justice, Liberty, Equality, and Fraternity.

Interestingly, the preamble explicitly spells out Justice to be in the social, economic, and political spheres, it does not mention spheres of belief or faith. Whereas, in the very next sentence it proceeds to explicitly spell out for its citizens Liberty in thought, expression, belief, faith and worship. Thus, one can conclude that the framers of the constitution saw that the concept of justice does not make sense in the domains of belief and faith. The fact that the Preamble does not set out to ensure justice in matters of belief or faith is a precursor to how the Constitution subsequently treats religion as something beyond its purview, explicitly granting freedom to individual religions and religious denominations to manage their own affairs, as we will see shortly.

Further, the Preamble sets out to secure Equality of status and opportunity, but not equality of belief or faith or anything else.

In contrast, the current judgement is violative of this very spirit of  the Preamble and the Constitution, viz., of the separaton of religion from mundane notions of equality and justice. The Constitution has granted Liberty in religious matters without imposing mundane notions of Justice and Equality and Fraternity. The word mundane has an important meaning in this context: it refers to things of this earth as opposed to spiritual matters.

Now let us delve into the Constitution itself, which is organized into 22 Parts, having Chapters in some of the bigger Parts, and several Articles within each Chapter or Part.

 

4. Constitutional Rights: Civil Rights vs. Religious Rights vs. Cultural Rights

The Constitution quickly jumps into guaranteeing the citizens Fundamental Rights in Part 3, a most important issue, after dealing with the formation of the country in Part 1 and its citizenship rights in Part 2.  Fundamental Duties of the citizen are also specified in Part 4A. Subsequent parts of the Constitution deal with various mundane aspects of the formation and running the country, those parts are not relevant to the current judgement.

The fundamental rights guaranteed by Part 3 of the Constitution fall into multiple categories, the first three of which are:
1. Right to Equality before the law,
2. Right to Freedom of speech, movement, settlement, etc, and
3. Right against Exploitation of human beings.

In all the categories, the main actor on whom restrictions are placed by the Constitution is “The State”, which is defined to be the Parliament and the Government and all the authorities under the government’s control. This means that all the rights in this Part are guaranteed with respect to matters such as public amenities/infrastructure, the law, government employment, and so on. The Constitution has carefully kept out matters of “belief”, “faith”, and “religion” from these three categories. Instead, it devotes a separate fourth category to “Right to Freedom of Religion”. The fifth category is “Cultural and
Educational Rights”, where to some extent we can interpret culture to be a looser form of religion. The final categories are about “Saving of Laws” relating to the acquisition of private property by the government, and “Rights to Constitutional Remedies”. Thus, if one looks at the overall structure of the Fundamental Rights part of the Constitution (i.e., Part 3), it is very clear that the authors of the Constitution intended to keep religion out of the purview of the main parts applicable to common civil matters which have inviolable fundamental rights of all citizens. Indeed it is very important to not violate the basic structure of the Constitution when interpreting it, as was made clear by the Constitutional Bench of the Supreme Court in its landmark judgement in the 1973 Swami Kesavanandi Bharati vs. State of Kerala case.

Let us now look closely at the general civil freedoms and specific religious freedoms guaranteed in Part 3 of the Constitution.

 

4.1 Civil Rights

The first category in Part 3, Right to Equality, guarantees equality with regard to the law, the State, public facilities, and government employment. The part makes some exceptions to equality, specifically allowing reservations in government employment and allowing religious requirements for appointments to posts in religious institutions.

The second category, Right to Freedom, guarantees right to free speech, assembly, movement, associations, and residence, and to practise any trade or profession, while allowing the government to impose reasonable restrictions for the sake of public order and even for the sake of decency and public morality. The other freedoms are related to education and unlawful detentions, etc.

The third category relates to exploiting people for labour, such as slavery, and thus is not relevant here.

The important thing to note here is that these three categories address issues  related to civil life. As one illustration, the category on Right to Equality explicitly grants equal access for everyone to public facilities such as wells, bathing ghats, roads, etc., and to public businesses such as shops, hotels, restaurants, theatres, etc., but it does not list temples, churches, mosques, or other religious institutions in this category. The other thing to note is that it explicitly allows religious institutions to require that appointees to  their posts be people of their respective religions, thus discarding the notion of civil equality. Thus, the framers of the Constitution explicitly kept religious matters outside the purview of mundane notions of Equality and Justice.

4.1.1 The Ambit of Civil Rights

Some civil rights are unrestricted, some civil rights are restricted. Take the example of right to life, granted by Article 21. Suppose a religious moral says that a person of a particular description does not have the right to life when that person is within a religious institution. An example of this would be human sacrifice in some religion. That religious moral violates the civil right to life since the since civil right to life is not circumscribed by the Constitution to only locations outside religious institutions. Article 21 of the Constitution simply states, without any additional conditions or examples, that
No person shall be deprived of his life or personal liberty except according to procedure established by law“.

In contrast, the civil right of equal access to public facilities and infrastructure is clearly circumscribed, i.e., restricted, since Article 15(2) of the Constitution clearly restricts such rights to public places such as “shops, public restaurants, hotels and places of public entertainment” (clause A) and to State-funded facilities for the use of the general public such as “wells, tanks, bathing ghats, roads and places of public resort … dedicated to the use of the general public” (clause B).

So, for example, a private property is not subject to the access rights given by this article, otherwise the entire concept of private property would itself disappear, and you would have to allow anybody and everybody to come into your own private house! Even non-public government offices do not have to grant the right of equal access to the citizen, let alone the properties of private companies or individuals. Theatres can restrict access to adults only, Parliament can restrict access to specific visiting times, the Supreme Court can restrict access to specific parts and times, and so on. Further, by clause C of the same Article 15, a Ladies Club or women’s college can restrict access to its facilities to only women, a train compartment can be restricted to only women even though it is a public facility. By placing such restrictions, the citizen’s civil access rights are not diminished in any manner. Article 15(3) itself specifically allows for general civil rights themselves to be curbed where necessary, by allowing for special provisions for women and children.

Thus, for example, a religious moral that says only certain castes or gender are allowed to access a place of worship does not violate these civil access rights: a religious institution or property is not public property, it has rights similar to that of private property, and it is explicitly granted the right to be administered by its respective religious denomination as we will see shortly. For example, an office can restrict access to only its employees, a university can restrict access to only its students, and even a public bathroom can restrict access to only a particular gender. They are all being administered in compliance with the law even when they so restrict public access.

4.2 Religious Rights

Now we come to the important fourth category of Part 3, “Right to Religious Freedom”. The first right this part guarantees, through its Article 25, is that everyone can freely practice and propagate their religion and also change their religion based on their conscience. Next, in the same Article, it states two important rights of the State that may limit this religious freedom:

(i) the State can regulate non-religious activities associated with a religious practice, specifically economic, financial, political or other secular activities. Note that the Constitution has explicitly avoided mentioning religious activities in this list, which means that the State, i.e., the Government cannot regulate religious activities;

(ii) the State can pass laws that throw open Hindu religious institutions “of a public character” to all classes and sections of Hindus. It is important to note here that the Constitution gives this right to the Legislature and not to the Judiciary. It is also important to note that the Constitution has not directly outlawed such religious institutions, it has left it to the discretion of the Legislature to pass laws if, when, and where deemed desirable. By explicitly specifying this clause, the Constitution has also made it clear that the principles of Justice and Equality in the earlier parts of the Constitution do not apply to religious matters!

The third freedom of religion is given (Article 26) to every religious denomination or “section thereof”, to establish and maintain religious institutions, to manage their own religious affairs, and to own and maintain properties. There are two important things to note here. Since this Article 26 of the Constitution gives religious rights to every religious denomination or  section thereof, and not to every “religion” nor to every citizen, it is abundantly clear that every religion is thought of by the framers of the Constitution as having at least one religious denomination and therefore that any section of people practising a religion belong to some religious denomination or “section thereof”. Otherwise, any person practising some religion under the previous Article 25 loses the
rights guaranteed by Article 26. Clearly, the framers of the Constitution did not intend for any person to have only the religious rights guaranteed by Article 25 but not those given by Article 26.

Therefore, given the religions freedom guaranteed by Article 25, a group of Swamy Ayyappa bhaktas automatically form a religious denomination or section thereof, especially since the Hindu religion of which they are a branch is a recognized religion, and then by Article 26 they automatically get rights to run their own temple and their  religious affairs in the manner they want, without being subject to mundane notions of Equality and Justice guaranteed in civil matters by the Constitution.

Further, the earlier Article 16 allowed religious or denominational requirements to be enforced when selecting a person to hold a post in a religious or denominational institution, thus indicating that the Constitution considers religion and denomination to be very similar in nature. In fact, the Oxford English Dictionary and the Cambridge English Dictionary define a denomination to be simply a branch of any religion. By using the term “denomination or section thereof”, when denomination itself is a branch of a religion, the Indian Constitution has gone further and made sure that anyone practising any religion is included in the fundamental religious rights. When Articles 16, 25, and 26  are read together, it is clear that religious denomination indicates a group of people practising a religion, and that they may not be all of the people who are practising that religion. In the current case, these Articles of the Constitution necessarily indicate that the devotees of Swami Ayyappa and of the Sabarimala Temple form a religious denomination or section thereof, they have the rights to run their religious institution, i.e., the Sabarimala Temple, and the right to manage their religious affairs.

To further buttress the argument, suppose you and a group of people who think like you decide to start and practise some new religion, under your religious rights guaranteed by Article 25. Now suppose you want to manage your own religious affairs and maybe build your own religious institution. The only way you get this right under the Constitution is if you belong to a religious denomination or section thereof, per Article 26. Now clearly, the framers of the Constitution did not intend to give you religious freedom but deprive you of your right to manage your own religious affairs, which leads to the natural conclusion that since you practise some religion you are considered by the Constitution to belong to some religious denomination or section thereof. In fact, in the S. P. Mittal case (discussed in the companion publication), Justice Chinnappa Reddy noted in his concurring judgement:
“The entire following of a religion may be no more than the religious denomination. This may be particularly so in the case of small religious groups or developing religions, that is, religions in the formative stage.” — Justice Chinnappa Reddy

Thus, a judgement that does not recognise any practitioner of any religion as belonging to some religious denomination, or section thereof, violates the person’s fundamental rights as guaranteed by Articles 25 and 26 read together.

4.2.1 “Subject to Morality”

Article 26 begins with the condition
Subject to public order, morality and health“.

That raises the question of what is meant by the word “morality” as used in the Constitution, what is the ambit of the word, and so on. While the dictionaries of English generally define morality as “the principles of good and bad behaviour“, the Stanford Encyclopaedia of Philosophy defines morality in a more nuanced manner as follows:

… the term “morality” can be used either:
(i) descriptively to refer to certain codes of conduct put forward by a society or a group (such as a religion), or accepted by an individual for her own behaviour, or
(ii) normatively to refer to a code of conduct that, given specified conditions, would be put forward by all rational persons.”

Here, an important question arises: should one accept the descriptive meaning of morality, whose sources are in religion, or the normative sense of morality, whose sources are in rational behaviour? Following the “basic structure doctrine” of the Constitution, where civil and religious matters are kept separate, and keeping in mind all the religious freedoms granted by the Constitution, the logical conclusion one is forced to draw is that morals in religious matters are the domain of that particular religion, and are beyond the jurisdiction of the Judiciary, so long as they do not infringe on morals in civil matters. Very specifically, civil rights such as the right to life and the right to equal access to public facilities and infrastructures can not be violated by a religious morality that says people of certain castes or gender can not have those civil rights. At the same time, circumscribed civil rights do not carry over to the religious domain.

Thus, the condition “Subject to ..morality..” in Articles 25, 26 and other articles of the Constitution can not be used loosely by the judiciary to transgress Article 26 and start managing the religious affairs or religious institutions of individual religions. Article 26 of the Constitution allows every religious denomination to own property and further grants them the right to “administer such property in accordance with the law“. Every private property also has to be administered according to the law, and they routinely restrict access, thus restricting access to such private or religious property is not a violation of the law.

4.3 Cultural Rights

The fifth category “Cultural and Educational Rights” provides the right to any section of citizens having a culture of their own to conserve that culture. Culture is defined by dictionaries to be a set of customs, beliefs, ideas, social behaviours, and such of a group of people. Now, while a culture is not as strict as the practises of a religious denomination, certainly the reverse holds true: strict practises of a religious denomination are part of a larger, looser culture enclosing that religious denomination.

Therefore, when Article 29 gives the right to conserve the culture of a section of people, it  automatically gives Sabarimala devotees the right to conserve their religious practises which are logically part of a larger surrounding Ayyappa culture.

The rest of the fundamental rights are not relevant to the case at hand, so let us move on to the next part.

 

5. What the Constitution Directs the Legislature to do

When the Legislature makes laws, it has to do so by applying certain principles specified by the Constitution. Part 4 lists Directive Principles that the Constitution states is the duty of the State to apply when making laws. However, the Constitution states explicitly, right in the beginning of Part 4, that these principles “shall not be enforceable by any court”; rather, they are considered only directive principles for the State, i.e., for the Legislature.

While there are many principles listed related to mundane matters, one principle that is somewhat relevant to the case at hand is that the State shall endeavour to secure a Uniform Civil Code for its citizens. Two important things to note here are:
(i) this refers to a “Civil” code, i.e., relating to mundane civil matters, and that
(ii) this is a directive principle to the State and beyond the jurisdiction of the Judiciary.

The important conclusion from this is that when a Uniform Civil Code itself is beyond the jurisdiction of the Judiciary and is only a directive principle for the State, which the State has not yet been able to implement after close to 70 years of the Constitution, how can any sort of Uniform Religious Code possibly come within the jurisdiction of the Judiciary? Not to mention that the Constitution has consistently separated civil rights from religious rights.

A second important Directive Principle to the State, mentioned in Article 49, is that it shall be the obligation of the State to

protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from spoilation“, etc.

While the Sabarimala temple is not so declared, it is envisionable that a future government so inclined could declare the Sabarimala temple to be a place to be so preserved from “spoilation” of its culture and religious customs.

 

6. Fundamental Duties of the Citizen

After the Directive Principles, we come to the last relevant part of the Constitution, Part 4A which specifies the Fundamental Duties of every citizen of India. Here a very relevant fundamental duty is specified in clause (f) of Article 51A. It states that it shall be the duty of every citizen of India
to value and preserve the rich heritage of our composite culture“.

The first important thing to note here is the reference to our composite culture. This term comes closest to mentioning “Unity in Diversity”, the bedrock of India. In the case at hand, certainly the Sabarimala traditions are a part of our composite culture, and given that the Constitution does not apply the mundane notions of Justice and Equality to matters of belief, faith, or religion, it becomes the duty of every citizen of India to “value and preserve the rich heritage” of the Sabarimala culture. In particular, it becomes the duty of this judgement, pronounced by citizens of India, to so preserve the Sabarimala culture. The present judgement fails in this Constitutional duty.

 

7. Summary: Constitutional Implications for Sabarimala Temple

An unbiased interpretation of the Constitution in keeping with two principles espoused by the landmark 1973 Supreme Court verdict in the Swami Kesavananda case, viz.,
(i) the “basic structure doctrine” of the Constitution of India for any amendments and interpretations, and
(ii) the principle of relying on the Preamble to clarify ambiguities in the Constitution,
yields the conclusion that the devotees of Lord Ayyappa and the Sabarimala Temple are a religious denomination having the fundamental Constitutional right to manage their own religious affairs without the intrusion of mundane concepts of Justice and Equality into their religious affairs.

Further, any powers to enforce social welfare and reforms in Hindu religious institutions is vested only in the Legislature, via Article 25(2) of the Constitution. By implication, such social  welfare and reforms can not be brought about by the Judiciary applying extraneous concepts of civil Justice and civil Equality to religious matters. The Constitution of India has carefully separated civil and religious matters in both the Preamble and the main text of the Constitution.

Finally, the Constitution specifies that it is the fundamental duty of all citizens of India to value and preserve the rich heritage of our composite culture, and religious traditions necessarily being a part of a larger enclosing culture become subject to such constitutional protection.

In summary, the Sabarimala traditions are not only the fundamental religious rights of the corresponding denomination but also are duty bound to be protected by every citizen of India.

 

8. Conclusion: An Extra-Constitutional Judgement


Ultra Vires
the Constitution

Based on all the logical arguments given in this article, it should be clear that the Sabarimala judgement — which allows women of certain age to enter the Sabarimala temple in violation of the rights of the Sabarimala devotee denomination to manage its own religious affairs and in violation of the Constitutional spirit of separating mundane concepts of Justice and Equality from matters of faith, belief or religion — is extra-constitutional. The Sabarimala judgement is ultra vires the Constitution of India.

Having identified the flaws in the summary judgement by highlighting the religious rights given by the Indian Constitution, we leave the matter of identifying specific extra-constitutional individual parts of the Sabarimala judgement to a separate exercise.

Mutual Counter-checks by the Legislature and Judiciary
We note that the Judiciary and the Legislature are so designed as to keep each other within the Constitutional ambit. The Judiciary has the powers to strike down legislative Acts that are Extra-Constitutional, i.e., Acts that are ultra vires the Constitution. Similarly, the Legislature has the right to correct judgements that are ultra vires the Constitution, by bringing in suitable Laws or amendments to the Constitution. Further, the Supreme Court also has the leeway to review its own judgements and opinions. A famous example of such review that has had far-reaching implications is the 1973 Swami Kesavananda Bharati vs. State of Kerala case, which restored due place to the Preamble of the Constitution of India diluted by a prior judgement, and which subsequently had a direct role in a judgement that restored democracy to India. One hopes that both the Legislature and the Judiciary take immediate corrective action in the present Sabarimala case, and put current judgements and executive orders on hold until such time as the matter is fully resolved by both a full Constitutional Bench of the Supreme Court and by a full session of Parliament.

Separation of Civil and Religious Matters
From a proper, unbiased reading of the Constitution, one can easily see that the framers of the Constitution recognized religions to be diverse, religion to be a matter of belief and faith, and religion to not be of the same essential nature as civil matters in regards to concepts of equality, freedom, constitutional remedies, etc. This separation of Religion and State is firmly engrained in the Constitution, as can be inferred by a careful, unbiased reader. The Sabarimala judgement appears to have lost sight of this basic structure of the Constitution in its zeal to reform perceived social ills. In its zeal, the Sabarimala judgement has fallen prey to the dangers it mentions in its own opening statement:

The irony that is nurtured by the society is to impose a rule, however unjustified, and proffer explanation or justification to substantiate the substratum of the said rule“.

It appears that the judgement, motivated by social zeal, wanted to impose the rule that women of all ages should be allowed into the Sabarimala temple, and has gone about proffering explanations or justifications for the same, with a fundamental wrong statement in its very foundational introduction, as pointed out at the beginning of this article.

Over-Reach
The Sabarimala judgement has also over-reached into the function of the Legislature, since the very presence of Article 25, clause 2(B) in the Constitution recognizes that there could be Hindu religious institutions that are not open to all classes and sections of Hindus, and it provides the State the right to pass laws to change that as it deems fit. The Constitution does not directly ban all such religious institutions. And, by explicitly giving
the State the right to frame appropriate laws, the Constitution is implicitly ruling out the possibility that the Judiciary can achieve the same effect by selectively or narrowly or extravagantly interpreting existing laws and Constitutional Articles on civil Justice and Equality. The Legislature needs to correct this over-reach into its domain of this particular judgement, otherwise the Legislature dilutes its role of shaping the country through laws and yields that role to the Judiciary.

We hope that the Judiciary and the Legislature recognize the foundational importance of the issues at stake in the Sabarimala case for the country, and take immediate remedial measures in the interests of the country.

~~~~~~~~

NOTES

  1. Permission is granted to everyone to freely publish, translate, re-blog, publicise or otherwise disseminate this blog post either online or in print media, so long as the authorship byline is properly maintained and so long as the content is republished in toto without any changes, including the byline.
  2. Readers are requested/encouraged to translate this blog post into Malayalam and all other regional languages of India and disseminate the same widely.
  3. The ideas in this blog post may be freely used by anyone, if and where possible with due attribution.
  4. Comments that either pinpoint any flaws in the logic of this article or that further enhance the logic of this article are most welcome.

[Re-blog] Engineering a Great Nation: Narendra Modi is the Best Bet!

Perhaps one is seeing the emergence of India’s own Steve Jobs, and the blockbuster product is going to be — no, not an iPhone or iPad — “India 21”

Re-blogging an old post…:

Tuesday, 29 April 2014

Engineering a Great Nation:
Narendra Modi is the Best Bet!


A young population that glimpses the immense possibilities via television and internet, but sees a reality of decrepit infrastructure and massive corruption around it, demands a great architect and engineer for the nation. One seems to be on the horizon this election season. 

He encompasses many of the skills and capabilities a great builder would yearn for — vision, innovation, engineering, management, marketing, saw-sharpening, and more. All applied not just to inanimate materials and paid employees but to variegated, self-willed communities that form a rainbow nation. 

Perhaps one is seeing the emergence of India’s own Steve Jobs, and the blockbuster product is going to be — no, not an iPhone or iPad —
India 21”.

 

Moving mountains and harnessing rivers — this ability is what the hallowed IITs aim to impart to the best engineers of India.

Yet, that is a comparatively modest goal: mountains and rivers have no will of their own, and so are fairly predictable.

Energising, enabling, orienting, and coordinating huge masses of people to achieve common good requires far greater engineering.  Most of our politicians rise nowhere near this lofty ideal; instead, they dullen, weaken, exploit, and divide the masses for their own personal good. A glorious exception appears to be emerging on the horizon — Shri Narendra Modi. He seems an engineer’s engineer, well suited to engineering a great nation.

God knows India needs a supreme architect right now. America had some during its crucial years: Abe Lincoln, Benjamin Franklin, and several others. The UK had Winston Churchill at a crucial period. Enslaved India had Mahatma Gandhi to liberate it. Nascent free India had Pandit Nehru — up to a point. And it had Sardar Vallabhbhai Patel. Now, India needs another architect. A vast majority of our population is young: two-thirds of the voters are under 35 years of age, with their lives mostly ahead of them. The masses of our developing country are exposed to what is possible, via television and internet. At the same time they see pathetic infrastructure around them in the country — under-developed and over-stressed due to self-serving politicians, vision-less planners, and stuck-in-the-mud bureaucrats! It is time the country benefited from some great engineering, of both men and material.

So let us see what goes into great engineering, what it takes to make a great engineer..

  • Symbiotic relationships are a common engineering technique in nature. Management gurus call it “win-win” relationships. A politician or bureaucrat thinking of symbiotic relationships?! That is extremely rare – they would rather think of just themselves. Enter Narendra Modi. An example of his thinking. The deployment in Gujarat of solar panels to cover water canals, improving the efficiencies of both, reveals a politician who can recognize, deploy, and encourage tools of symbiosis, and then champion them. It is hard to imagine such a politician not migrating symbiosis from the mere engineering of infrastructure to the engineering of positive social systems built from our diverse communities — be the media spin of the last decade or so what it may.
    ~~~
  • Whole-system thinking is a hallmark of a great engineer; market-driven thinking, that of a great marketeer and product designer. Modi’s championing of design and marketing capabilities to surround ordinary kite-making, thus boosting that industry by an order of magnitude, and inter alia helping improve a minority community develop, reveals a whole-system thinker extraordinaire!
    ~~~
  • Efficiency is the mantra of any engineer worth his salt. Until Modi brought it up in an industry meet, no other politician had even noticed that the railway tracks of one of the world’s largest railway networks are idle a large fraction of the time. Perhaps, it takes a boy selling tea at a railway station — where only two trains pass by in a whole day — to notice this! Having noticed the inefficiency, taking the next step of proposing that the un-utilized capacity be leased out to private players reveals an innovative solution provider, not just a protester.
    ~~~
  • Building strong systems with weak, faulty components. Using weak, faulty components will bring down any system and stresses the components themselves — ask any competent systems builder. When constrained to use weak components, good engineers and systems builders first buttress and strengthen the components, rather than compulsorily use the weak components up to a quota, to exhaust stock. The strength Modi has shown in refusing to fall into the easy trap of offering quotas and other inducements to the weaker sections of society, instead offering ways and means to strengthen them economically, shows a master builder of social systems.
    ~~~
  • Focusing on core strengths is what we all like to do. When it comes to building things, all the buzz is about focusing on one’s core capabilities and outsourcing the rest, thus achieving the best quality in every aspect of the final product. The public-private partnership model of the Modi government in Gujarat reveal such best practices, rare in a politician. They give wide berth to the mere protest politics of the Left and the one-dimensionality of the socialism and capitalism proponents.
    ~~~
  • Value-addition rather than selling raw material is a business basic. Modi’s focus on full value-addition to the nation’s mineral wealth, in lieu of selling off of raw materials at lower returns, shows the man’s business worth. Minerals are just one example; he talks of farmers adding value to their produce, and more.
    ~~~
  • Lean is all the buzz in Startups. Modi appears to have rephrased Lean as “Minimum Government, Maximum Governance“. Talking of startups, the wisdom on the street is to initially go with the team, rather than with the idea. Well, Modi clearly seems to be the team to go with; and, as a bonus, his ideas don’t seem too bad either.
    ~~~
  • Sharpening the saw is the last but perhaps most important of Stephen Covey’s “7 Habits”. In other words, continuous skills enhancement. Now, how many politicians do we know of that would consider starting their nomination-filing yatra from an educational institution? A slum or a minority-community religious place would perhaps more readily come to their vote-catching mindsets. How many politicians have used a visit to an educational institution to lay out a grand plan for overhauling and enhancing the whole education system? The worth of a man are revealed in such actions.
    ~~~
  • Product of Worth. Talking of worth, finally, consider the man himself. An engineer focuses on function before form, utility before everything else. An engineer knows how to cut through the outer packaging to the inner core. Over the last dozen years, Modi has done a remarkable job of ignoring all the distractions around him, the media spins  and the politics around him, and focused on getting his job done. With extra-ordinary courage, will-power, and effectiveness. Repeat orders are the dream of any company. Modi has received repeat orders twice, each time from an increasing number of customers — the lakhs of voters in Gujarat. Surely, that is a sign of a product the masses find useful.
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  • Training. The best engineers believe in hands-on training — on the shop floor, in the field, in late night programming hack-a-thons. Modi spent 3 decades in the field, doing nothing but organizing people within the framework of a constructive organization. He crisscrossed the country, slept in canteens, organized people and activities – all while sacrificing personal life. Can we find a better-trained engineer anywhere?
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A man who encompasses superb engineering instincts, whole systems thinking, outstanding marketing, and visionary goals, has himself got to be an integrated, holistic human being. It is impossible for the inner being to be dis-consonant with the outer manifestation — especially at such a scale of activity. And, such a human being can only engineer a holistic, symbiotic, and advancing conglomeration of variegated communities — a single, great 21st century nation! Unity in Diversity!

We engineers look up to a few icons. Worldwide. Those who are not only great engineers, but go beyond and become management gurus and product visionaries. One man who went to the Himalayas for some gyaan, before becoming such an icon, comes to mind: Jobs. Steve Jobs.

Turns out, in some sort of coincidence, Narendra Modi spent 3 years of his life in the Himalayas, at around the same age as when Steve Jobs did, getting gyaan that goes beyond mere engineering skills. He did this before jumping into the fray of organization building, just as Steve Jobs did before building Apple. Given the depth and breadth of Modi’s skills and thinking, it is likely an injustice to call him just an engineer’s engineer. We are likely looking at a master engineer, manager, and product visionary all rolled into one. That too, not just engineering of inanimate matter and natural forces, but of live, self-willed human societies.

So, the ultimate question is, do we have the next Steve Jobs in our midst? We just might! It is a good bet that Narendra Modi is going to be the next Steve Jobs, and his blockbuster product is going to be — no, not a mere iPhone or iPad – “India 21”!