For Constitutional Fidelity (even in matters of faith) — Eyes on the Sabarimala Review

The Sabarimala Temple litigation is often narrated as a dispute about the entry of women of menstruating age into a shrine dedicated to Lord Ayyappa. That description, however, is accurate only in the narrowest sense. The real - and perhaps more difficult - question raised by the dispute is not simply restricted to who may enter a temple, but how a constitutional court ought to see religion. 

This is so, for a court that refuses to examine religious practices abandons individuals to tradition. On the other hand, a court that examines them too closely becomes, in effect, a theological tribunal. Sabarimala sits precisely at this fault line. 

For context, the Supreme Court in Indian Young Lawyers Association struck down the exclusion of women between the ages of ten and fifty from entering the temple. While the majority opinions (by Misra & Khwilkar J.J., Chandrachud J. and Nariman J.) framed the practice as incompatible with the constitutional guarantees of equality and dignity - in dissent Malhotra J. - argued that courts ought to exercise restraint when confronted with matters of faith. 

What becomes rather apparent upon these readings is that the majority-minority disagreement reflects two fundamentally distinct schools of thought. One understands the Constitution as an instrument capable of dismantling hierarchies embedded within religious practices. The other treats the Constitution as imposing limits upon judicial intervention in religious life.

Neither position is obviously absurd. And that, precisely, is what makes the problem difficult.

I argue, however, that once the institutional role of a constitutional court is taken seriously - and understood properly - the path forward becomes much clearer. For the primary task of a constitutional court is to ensure that public life (which includes institutions that exercise social authority) remains consistent with constitutional values. And thus, whenever any practice - religious or otherwise - comes into direct conflict with these commitments, the answer must not be one of hesitation. If a practice violates constitutional values, it must go.

To be clear, the proposition I submit is - by no means - an attempt to homogenise religion or to smuggle in a debate about UCC. It merely insists that when religious practices enter the domain of public law - they cannot claim immunity. Of course, this does not (and can not) dissolve the practical challenges that might come along the way. Yet they do not (and can not) ultimately alter the analysis. More importantly, any alternative will not (and can not!) be neutral.

For a court that shall decline to intervene in the face of clear constitutional violations will effectively be allowing tradition to determine the scope of fundamental rights. With the power of rights then ceased of its function to act as a constraint on social power. A constitutional court cannot become an arbiter of religious doctrine. But neither can it allow claims of faith to override the commitments embedded within the Constitution. That is the simple - but firm - position the litigation in Sabarimala ultimately compels us to confront. When constitutional values and exclusionary practices collide, the role of a constitutional court is not to reconcile the irreconcilable. It is to enforce the Constitution.