Table of Contents
- The Spirit of the Constitution of India
- 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
- The Sabarimala Case [paras 5-87]
- 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
- Summary and Conclusions
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.
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