Hearings in the Sabarimala review case are ongoing. Readers will recall that a five-judge bench of the Supreme Court had declared that barring the entry of women to the Sabarimala temple was unconstitutional. Challenges to the correctness of this judgment have been pending ever since; a brief procedural history of the review petitions can be found here. The review’s questions pertain to the scope and interpretation of articles 25 and 26 of the Constitution, including the meaning of “morality” in both articles, denominational rights and the interplay between both provisions. Necessarily, this involves a reëxamination of the “essential religious practices” (ERP) doctrine, a judicially invented test to determine which practices fall within a constitutionally enclosed space of protection and which do not.
Many of these issues have been analysed ad nauseam. However, the Union’s arguments on two fronts – the ERP and the morality restriction in articles 25 and 26 – deserve fresh scrutiny.
On the ERP, the Union government’s submissions echo a critique that has been made in liberal quarters for decades now: that it catapults the Court into an ecclesiastical rôle, with judges determining which beliefs and practices are integral to a faith. Gautam has already shown us how the doctrine emerged from a misreading of Ambedkar’s remarks in the Constituent Assembly Debates – that the definition of religion be limited to those beliefs and rituals which were “essentially religious.” On a plain reading, Ambedkar meant to exclude the “secular” accoutrements of religion that emerged as a result of religion being a social practice; the early Supreme Court instead took him to endorse a test that requires scriptural exegesis to root out optional beliefs and practices.
There are several plausible reasons for why the Court set down this path. The most convincing one, to me, is that the Court was solving for a potential legitimacy crisis – by stepping into contested theological terrain, and demonstrating that religious doctrine was not in conflict with its preferred outcome, it avoided a head-on collision with religious institutions. This was the mechanism the Court chose in its allied project – with the State – to modernize faith.
However, no serious argument has been – or can be – made for excluding courts from opining on matters of faith altogether. Take the example of a religious sect which argues that it is actually not Hindu, and is therefore permitted to close its doors to certain “classes and sections of Hindus,” to quote the language of article 25(2)(b). This would allow all exclusionary Hindu sects to argue that they are not, in fact, Hindu and therefore not subject to legislation under article 25(2)(b). These were the facts of the famous Yagnapurushadji case, in which the Court examined – and, I argue, had to examine – the history and scripture of the Swaminarayan sect in order to make its finding. (To clarify, I do not defend the judgment in its entirety: the Court need not have derived the essential elements of the Hindu faith, and could instead have relied on historical practice in support of its finding that the sect was Hindu.)
The Union’s argument in Court rested on two primary grounds – first, the ERP doctrine has no basis in the constitutional text. The Constitution only restricts religious freedom on the four grounds of public order, health, morality and the other fundamental rights. The Court’s invention of the ERP test, out of whole cloth, therefore amounts to an (impermissible) amendment of the constitutional text. And secondly, religion – and Hinduism in particular – is inherently capacious and pluralistic. It is not reducible to a list of beliefs and practices, contra the premise of the ERP doctrine.
To replace the ERP doctrine, the Union runs together two tests – the “sincerity” doctrine from US jurisprudence, and a distinct “plausibility” inquiry – as a threshold step. Courts would assess whether a belief or practice is sincerely held or practised by members of that community in order to determine whether it falls under the domain of religion; or, separately, whether the belief could plausibly be held by a particular claimant. Following this stage, courts would then analyse whether a restriction under any of the aforesaid grounds is made out; for the last restrictive ground – the other fundamental rights – the Union suggests a “doctrine of optimisation,” yet another iteration of a balancing exercise. It is not clear how this test would be operationalized in practice, or how it is different from double proportionality, which it is said to include.
While the Union’s submissions correctly diagnose the flaws with the ERP doctrine, its suggested replacement – the sincerity doctrine, along with the unexplained plausibility test – is problematic. It ignores the reality that Ambedkar was describing in the Assembly debates – that religion in India encompassed significant dimensions of public life; the sincerity doctrine, or even the plausibility test, for that matter, would be of little help in sifting between the religious and the secular. It is also more deferential to adherents, at the cost of the Constitution’s other objectives. If we return to Yagnapurushadji’s facts, the Satsangis could quite convincingly make the case that they genuinely do not subscribe to Hinduism’s tenets, as understood by them; they believe so sincerely and this belief is plausible (indeed, the Court called it a “genuine apprehension”). Where does this leave a court concerned – as the Yagnapurushadji Court was – that this belief “is founded on superstition, ignorance and complete misunderstanding [sic]” of the tenets of their faith and Hinduism (paragraph 55)? (This is, of course, not to defend the Court’s problematic invocation of superstition here.) This court cannot do much by relying on public order, morality, health or the other fundamental rights, and article 25(2)(b) would stand defeated.
This then brings me to the Union’s argument on “morality,” one of the enumerated restrictions in articles 25 and 26. The Union contends that this term has been wrongly interpreted by successive judgments to mean constitutional morality; instead, “[t]he framers of the Constitution intended ‘morality’ to operate as a broad but society-based or socially grounded standard, flexible in application yet anchored in public life, social conditions and cultural ethos of the society, rather than an abstract constitutional doctrine detached from society” (Written Submissions, paragraph 136). The term “constitutional morality,” the Union went on to argue, does not exist in the constitutional text, and was yet another (judicial) “amendment” of the Constitution.
To be clear, this is a plausible argument. It is far from likely that the Assembly members understood the term to mean constitutional morality – a phrase invoked once by Ambedkar in the Assembly to describe a respect for constitutional form (institutions, deliberation, and so on) that needed to be cultivated in a newly sovereign country. But this is fine because we are not originalists (at least I hope not). It’s fine to concede, also, that a semantic drift has occurred with respect to the phrase, beginning with the Delhi High Court’s judgment in Naz Foundation when it was used to name a set of values – equality, dignity, liberty – that the Constitution embodied. This new meaning was entrenched in a series of Supreme Court cases in the 2010s, which decriminalized adultery, criminalized the rape of minor wives by their husbands and allowed women to enter the Sabarimala temple (the subject of this review petition).
The Court has, I argue, not helped its case by poorly grounding this line of jurisprudence. For Chandrachud J (as he then was) in the Sabarimala judgment, for example, “morality” could not be “public morality” because the Constitution’s drafters could not have intended to subject rights to “passing fancies or to the aberrations of a morality of public opinion” (Chandrachud J’s opinion, paragraph 14). But morality is not always fleeting – the prohibition on the entry of women had been around for centuries. And even where it is, what’s the constitutional argument against relying on a morality that is transient? A more compelling reason was needed to justify not relying on public morality.
I submit that there is one, rooted in the internal logic of the Constitution – that the Constitution’s bill of rights evinces a discomfort against “public morality” in its various manifestations. The prohibition of untouchability – housed in article 17 – is a direct indictment, by the drafters, of a set of values prevalent then (and today) in Indian society that were founded on hierarchy and oppression. Several other provisions, too, exhibit this discomfort – the broad enabling language for affirmative action along with state legislation to throw open temples for all sections of society (within article 25, no less) and facilitate equal access to public spaces. The throughline here is a recognition of deeply embedded attitudes in favour of caste segregation and hierarchy that needed to be reformed out of existence. In this light, to read morality as public morality would make little sense, regardless of the drafters’ specific intent here. This holds especially true in a religious freedom case, where religiously determined morality is intimately bound up with hierarchy. The Sabarimala review, then, represents an opportunity for the Court to clarify and fortify its constitutional morality jurisprudence – and not, as the Union would have it, abandon it altogether.