The extensive and expansive use of judicial review and constitutional adjudication as an instrument of what is perceived to be reform arouses profound controversy. Today no admirer of the court and the rule of law can avoid worrying that progressive politicisation and hyper-activism are endangering their historic role. Judgments have become verbose. Often it is journalese without sound legal reasoning. Intellectual showmanship has overtaken judicial statesmanship.
The judgment of the Supreme Court in the Sabarimala temple case is a typical instance of the court overstepping its domain—this time in the fragile area of religious reform—and of unawareness of Hindu cosmology, faith and traditions and determination to hoist the judges’ views as the only view of the Constitution and constitutionalism.
The aspirations voiced by the court, particularly in social and religious matters, must be those that the people are willing to avow and live by. The legitimacy of the court’s decisions stems to a great degree from the accuracy of the court’s perception of such common will and its ability, by expressing that perception, to strike a responsive chord equivalent to the consent of the people. To go beyond and to impose the court’s choice, even if it be better or wiser, smacks of judicial despotism which is anathema to democracy and the rule of law. Article 32 and judicial review, by promiscuous misuse, to borrow the language of Krishna Iyer, have given the impression of being the haven of busybodies and interlopers.
It is a wise tradition that courts do not adjudge except when it involves the legal rights of the litigants. Significantly the exclusion of some women from visiting Sabarimala was not challenged by any woman or believer, but by busybodies who did not claim to be believers of Lord Ayyappa. The locus is not just technical. Those who approached the court were not those who wanted to worship but those who were keen to defy tradition without any faith in religion. Basing the petitioners’ claim on their belief is an essential prerequisite to maintain a challenge, as PILs in religious matters would open the floodgates to interlopers and non-believers to question religious beliefs and practices.
The standards by which matters of faith have to be tested are those of the community of believers, not of the others or of the court. The limited exercise of judicial power in this area is only to find out whether a particular belief or custom exists. It is immaterial whether the court thinks it to be rational or justified. The court’s role is to afford protection to what is regarded by the devotees as ‘essential’ or ‘integral’ to religion.
The court is ill-equipped to deal with and pronounce on matters of faith. Judicial interference with religious beliefs and practices, unless they are social evils, can seriously damage the constitutional fabric. The court must be aware of its own remoteness and lack of familiarity with such issues. The needs and difficulties of the community are constituted out of facts and opinions beyond the easy ken of the courts. Life is larger than law.
Grounding the judgments in the right to equality and constitutional morality is treading on ice. Religious beliefs cannot be tested on the touchstone of Art. 14 or rationality. The right to equality in religious matters has to be adjudged amongst worshippers. “To recognise marked differences that exist in fact is living law, to disregard practical differences and concentrate on some abstract identities is lifeless logic.” Like ‘manifest arbitrariness’, ‘constitutional morality’ is totally subjective and would itself be arbitrary. In one sense it is simply the court’s propensity to intervene. Art. 25(2) permits legislation, not judicial intervention.
All fundamental rights are equal. That the fundamental right to practise religion as claimed by the worshippers should yield to the right of women is specious. The fundamental right to practise religion is as ordained and accepted by faith and tradition and not as the court would like it to be. What is required is the balancing of all rights to ensure that the religious beliefs of none are undermined.
The observation that by reserving to itself the authority to determine which religious practices are essential or not, the court assumed a reformatory role which would allow it to cleanse religion of practices which were derogatory to individual dignity is “couched in a style that is as pretentious as its content is egotistic.”
The practice of excluding certain sections of women from entering the temple has nothing to do with untouchability. It is crucial that the Constituent Assembly consciously rejected the inclusion of ‘temples’ and ‘places of worship’ in Art. 15 that prohibits denial of access to certain public places. To contend the Sabarimala temple would be included in ‘places of public resort’ is outrageous.
It is a moot question that if the court is to decide what religious beliefs and practices are or should be, then anyone else other than the court may decide what the law is.The lone dissent commends itself as constitutionally correct and judicially statesmanlike. A dissent, sometimes, is a call to and grounding in traditions reared by experience and discernment and resisting the temptation of being lured by the seemingly attractive.
The majority judges have converted their view of religion into constitutional law. Institutional prestige and credibility have suffered a serious dent. Some judgments, instead of settling disputes, ignite unrest. An awareness of the contours, nuances and limits of judicial power and, according to the US judge Learned Hand, wisdom is what contributes to judicial statesmanship and the making of great judges.
It is heartening that the court will hear the review petitions. Keeping the judgment in abeyance would have been wiser. Propriety and wisdom should dictate a change of view. That will retrieve some lost prestige and lend credibility.All our problems may be summed up thus: “Where is the life we have lost in living?/ Where is the wisdom we have lost in knowledge?/ Where is the knowledge we have lost in information?”