Soars in spirit but weak on legalities
assume the character of the “Chancellor’s foot” viz extreme subjectivity. Fourthly, DYC appears to travel very far by subsuming exclusion of women from Sabarimala within the rubric of “untouchability” under Article 17, misinterpreting the substantial Constituent Assembly material suggesting that only conventionally understood caste and religion based exclusion was considered “untouchability” by our founders. Fifthly, by holding that all custom, usage and personal law constitutes “laws in force” and hence are fully subject to constitutional judicial review just like legislation, DYC mandates, contrary to established case law, objective standards of judging of even purely religious beliefs. Sixthly, he propounds a further “objective” test of what the court, in its view, considers as fit and proper essential religious practice whereas established jurisprudence repeatedly holds that subjective but bona fide and long held beliefs of a religious denomination are sufficient to qualify the practice as an essential part of religion. Seventhly, none of the other three judgments accept any of the above legal findings of DYC or go so far.
Eighthly, Justice RF Nariman’s (RFN) erudite discussion establishes the universality of the link between menstruation and impurity in diverse religious cultures (except in Sikhism and Bahaiism), which actually validates the exclusionary rule for menstruating women in Sabarimala, but ironically leads him to an opposite conclusion. Ninthly, he proceeds on the assumption that the reasons for barring women from Sabarimala are an essential facet of the belief of those worshippers, a strong finding in favour of the Board. RFN does far less violence to established jurisprudence by limiting himself to two narrowly tailored bases for striking down the exclusion viz. Ayappans not being a denominational sect and hence not protected under Article 26 and the exclusion being violative of those women’s fundamental rights to worship under Article 25.
While the judgment of the Chief Justice is more expansive than that of RFN, it is far less so than that of DYC. The dissenting lady judge has focused precisely and boldly on the basic four prongs delineated at the beginning of this article.
Abhishek Singhvi is Rajya Sabha MP, Congress National spokesperson, former Chairman, Parliamentary Standing Committee and former Additional Solicitor General, India. The views expressed are personal