How does secular court determine importance of religious practice? (Book Extract)

Most great constitutional matters involve competing interests, a clash of rights. In balancing between two legitimate rights, something valuable is often lost. In the case of Sabarimala, we were looking at the deep clash between the rights of two classes of believers. It was also a clash between a very appealing broad-brush argument and a finely nuanced legal position. ...

... In theory, even assuming there was no Article 26, there would be a group right in religion constitutionally. People have a right to believe. They also have a right to form groups, to speak freely, to move about freely. Those rights naturally lead to a group right in religion. ...

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... There is a problem here which you, the reader, may have already stumbled on - how does a secular court determine the importance of a religious practice? After all, judges are not usually believers of whatever denomination they are trying to understand. Faith is by definition irrational. Whether a god stood upon a point or a prophet uttered certain words is something that is absolutely held to be true by a believer. To anyone who is not a believer, it is no more than a fanciful story. But how does a secular judge, sitting over a modern constitution, using tools evolved by English common law, determine which part of a thousand-year-old practice is 'essential'? It forces a judge to become a theologian for a day, and scholars have long criticized this development of the law, but it is what we must work with.

I argued that the test the Court was bound to apply was this:

(1) Was the practice of excluding women aged ten to fifty a religious practice by nature? Did it have its roots in the belief system?

(2) Was it an essential religious practice for that denomination of believers?

(3) Did it otherwise off end public order, morality or health?

This test is part subjective and part objective. For the first part, to determine essentiality, we must step into the shoes of the believer. To some extent, historical documents, archaeological evidence and other forms of evidence can help us - but telling the difference between an inessential and essential part of religious practice is still a subjective determination. The second part, whether something off ends public order or morality or health, is objectively determinable by the court.

For the devotees of Lord Ayyappa at Sabarimala, their deity was the Naishtik Brahmachari avatar of Ayyappa. Of the more than fi fteen hundred temples in India to Lord Ayyappa, this was the only one devoted to the Naishtik Brahmachari avatar, and therefore the only one to exclude women between those ages. I may not be a believer, you may not be a believer, but the law expects judges to look at what the believer believes.

Barring a few exceptions, from the depths of recorded history, at Sabarimala, Lord Ayyappa was worshipped in this form. Believers in that avatar have a common set of beliefs and practices - the vratham, the penances, the celibacy for forty-one days, the pilgrimage through the

forest. They have a common organization, a priesthood, a dress code, days when the temple can be visited. The thantri, the head priest of the temple, was represented before the Supreme Court as well. Th e believers have a name - they are commonly called Ayyappas. I argued that, therefore, they are in the eyes of the court a religious denomination, and to them this practice of exclusion is sacred.

The petitioners' argument about religious denomination was also a strong one. It is one thing, they argued, for a group to have an identity which is the same across all places of worship. But every temple cannot be permitted to make its own denomination; that would undo the basis of the constitutional reasoning.

It is a good argument - can one temple be considered significant enough to create an essential religious practice? I would argue in the case of Sabarimala, or Tirupati, it can be.

Then there is the question of burden of proof. In legal proceedings, the person who files the case, as a plaintiff in a civil case, a petitioner in a writ petition or a prosecution in a criminal matter, must prove his

case and convince the court before the other side has to defend themselves.

The burden of proof, once a claim to an essential religious practice is made, ought to have rested on the petitioners to show from evidence that there was no religious denomination or essential religious practice,

that is, that there were no constitutional protections. A problem I often find in PILs is that an unfair burden is cast upon the respondents to justify practices that have not even convincingly been attacked. Of the

exceptions none were argued by the petitioners, and for good reason.

There is no argument of public order - the exclusion is not causing riots. There is no issue of health - nobody is suffering any health issues as a result of the pilgrimages. And there is no question of morality - which is an exception that is not immediately clear but which has been understood to be something as offensive to human nature as cannibalism, something no society can condone. Th ere is also no physical or mental harm caused to any person.

Once we enter the domain of faith, I argued, the only really important thing is knowing what the believer believes. I asked the Court a common-sense question - assume you are allowed to go to a temple, are you

allowed to do all forms of worship at all times?

In the Vallabhacharya temple, can you visit during the Shayya kal of the god? The deity is deemed to be sleeping during that particular time. Can you wake up the deity at one o'clock at night instead of three o'clock when the suprabhat starts in Tirumala? Can you do an aarti at 2 p.m. instead of 6 p.m.? These are practices of the people at those temples, and their legitimacy emanates from what they mean to the people who go there.

Another point that I argued which also made an impact was the uncomfortable question of whether women are allowed in temples during menses. Obviously, nobody asks a woman at a temple whether she is on her periods. There is a concept of purity involved and there is an unspoken restriction which

many Hindu women obey as self-imposed discipline. A similar concept of purity exists in other religions as well, in Judaism and in Islam and in most of the older religions. For that matter, many Sunni mosques in India

do not customarily permit the entry of women. It may not be rational or sensible to all of us today, but it is what the believer believes.

(This is an extract from "From The Trenches" by Abhishek Singhvi with Ssatyajit Sarna. Singhvi is a lawyer and Congress MP and this from the chapter: ...How does a secular court determine the importance of a religious practice?' The Sabarimala Case: Women in the Temple. Printed with permission from the publishers, Juggernaut Books)