It is often hard to not like the Indian Supreme Court.Footnote 1 India’s apex judicial body is frequently poetic and progressive, self-consciously cosmopolitan, and has for over seventy years gamely risen to, if not always succeeded at, the challenge of interpreting the world’s longest constitution for the world’s largest democracy. It has undoubtedly had its bad moments, like when it confirmed the nationwide suspension of habeas corpusFootnote 2 or when it recently seemed confused about an adult woman’s right to marry whom she pleases.Footnote 3 Earlier on in its life, the Court had an exceptionally bad moment that lasted for twenty-one months (or forty-two years, depending on one’s arithmetic), a moment for which it atoned via several decades of enthusiastically adventurous jurisprudence and a brand new cause of action.Footnote 4 But very often, in both its substance and its style, the Indian Supreme Court renders itself irresistible. The recent verdict on women’s entry at Sabarimala is not one of those times.
Indian Young Lawyers Association v. State of Kerala (hereinafter IYLA) concluded, inasmuch as legal disputes ever attain finality in India,Footnote 5 that a public Hindu temple’s exclusion of women between the ages of ten and fifty is an unconstitutional form of gender discrimination.Footnote 6 So far, so good. India’s Constitution has substantial antidiscrimination and equality protections that could easily support such an outcome, and the Indian Supreme Court’s recent jurisprudence involving those protections as well other constitutional provisions has a markedly expansive and progressive flavor.Footnote 7 The core finding in IYLA, that the Sabarimala temple must welcome women of all ages, is so decidedly within the realm of the plausible that for many court watchers it must have seemed very nearly inevitable. Whether one has nine justices or nearly thirty, some cases are easy to call.
So what’s the rub? Briefly, this: that individuals who believe in the religious necessity of excluding some women from Sabarimala are as glaringly absent from the IYLA opinion as the women being excluded were palpably missing from an earlier lower court judgment on the same issue.Footnote 8 To the extent that individual believers actually figure in the plurality opinion, they are “just Hindus”Footnote 9 —people whose beliefs are insufficiently idiosyncratic to distinguish them from the breathtaking diversity of traditions expediently styled Hindu or, quite differently, people whose beliefs will, when properly understood, be found to exactly exemplify contemporary notions of fairness and equality. Neither of these analytic stances is peculiar to the IYLA judgment; in fact, they perpetuate established trends in the Supreme Court’s jurisprudence on religious freedom. But the clarity with which they emerge in IYLA and the lopsidedness of the ensuing analysis demonstrates how important it is that the Court seriously grapple with conflicting constitutional impulses even—or especially—on the road to issuing landmark judgments.
The IYLA decision and its tumultuous reception make two things amply clear. To scholars of Indian constitutional law, IYLA demonstrates that problematic outcomes in Indian religious freedom cases do not necessarily derive from the “essential practices doctrine”—a longstanding jurisprudential fixture and a popular scholarly scapegoat (Sen Reference Sen2010, 66–67).Footnote 10 Rather, IYLA’s analytic weakness arises, in large part, from the increasingly strained way in which the Court has applied the essential practices doctrine. To be sure, any kind of badly reasoned case would be problematic in any common law system, but in India and in cases involving the essential practices doctrine they are especially so: they eat away at a delicate and not always successful—but absolutely critical—dynamic equilibrium between two different visions of the state (Das Acevedo, Reference Das Acevedo2016b).Footnote 11 This is because opinions like IYLA, which make no pretense of accounting for devotee perspectives even as they rule on devotee practices, destroy the balance between one theory of the state that respects bedrock democratic principles like the sovereignty and privacy of its citizens and a second, competing vision in which the state tries to reform its citizenry in the course of pursuing other democratic principles like the equality of all citizens.
To scholars (and indeed to lawyers and judges) elsewhere, IYLA provides an object lesson in how not to engage in cultural politics. Indian constitutional law and political circumstances combined to offer the Court a rare opportunity: multiple contrasting and yet equally plausible and feasible conclusions.Footnote 12 That the Court nonetheless produced a decision that elicited popular revolt (and that should elicit skepticism even from supporters of women’s entry) is an unfortunate and unnecessary proof of the view that hard cases make bad law.Footnote 13 In this case, there was plenty of good law to be made. As a result, this second lesson is directed as much at upholders of the Court’s progressive image, who are likely to value the substantive outcome of the decision, as it is to observers who are less invested in Indian law and politics. It tells these supporters they should not place IYLA in the “win” column (which they are already starting to do) despite its expansion of women’s religious freedom rights (see Bhatia Reference Bhatia2019).Footnote 14
Neither of these criticisms is exactly equivalent to the perspective, being articulated with growing frequency and justification, that the overall quality of the Supreme Court’s argumentation has declined. For instance, I am not particularly concerned with the quality of the IYLA majority’s prose even if, like many Indian Supreme Court opinions, the majority opinions do frequently violate reasonable expectations of clarity and concision (Pillai and Sekhar Reference Pillai and Sekhar2018).Footnote 15 More substantively, IYLA is not a poorly reasoned opinion because it exemplifies the problems of “small benches deciding ‘big’ cases … jurisprudentially inconsistent or awkward decisions … [or] a variety of interpretive techniques.”Footnote 16 The bench size was appropriate, a variety of interpretive techniques is standard even among apex courts that hear cases en banc, and as the rest of this article suggests, the problem is that (notwithstanding significant differences among them) the three majority opinions were too similar to one another and to earlier precedent in their disregard of devotees—not that they were inconsistent.
Rather, the IYLA plurality opinion (and to a lesser extent, the other majority opinions) are poorly reasoned to the extent that they are “result oriented” and to the extent that their authors “surrendered [their] responsibility of engaging in a thorough rights reasoning of the issues” before them (Chandrachud Reference Chandrachud, Choudhry, Khosla and Mehta2016, 86). But the failures of reasoning set out here are neither part of a recent “third phase” of Indian jurisprudence (at least as far as the essential practices doctrine is concerned) nor should they be excused as merely turning on the coherence and appeal of “the larger democracy in which [the Court] is situated” (ibid; see also Mehta Reference Mehta, Tushnet and Khosla2015, 260). On the contrary, IYLA’s flaws are part of a longstanding and lamentable trend in Supreme Court religious freedom jurisprudence that has created more bad precedent by further damaging the essential practices doctrine, and that upsets the careful balance between the two visions of democratic sovereignty described earlier. This time, however, the Court erred to rather spectacular effect.
Part I of this article draws on case law, social science research, and media analysis to describe earlier disputes over women’s access to Sabarimala. Part II explores the Supreme Court’s judgment, focusing mostly, but not exclusively, on justifications for overturning the ban as they are articulated in Chief Justice Misra’s plurality opinion. (Readers should note that, going forward, I will refer to the Chief Justice’s opinion as the “plurality” and the opinions by Justices Nariman and Chandrachud as other “majority” opinions rather than as “concurrences.”Footnote 17 ) Parts III and IV are the heart of the article. They consider two analytic moves made by the plurality that are also partly reflected in the other majority opinions, and explain how each one serves to bypass hard constitutional analysis by absenting individual believers from the conversation. In the process, the opinion transforms believers into little more than the grounds of (a new and valuable) discourse on equality. The irony is acute: for at least twenty years, scholars of gender in South Asia have noted how women are often “neither subjects nor objects but, rather … the site on which tradition [is] debated and reformulated” even when the traditions in question are ostensibly all about women (Mani Reference Mani1998, 79).Footnote 18 The Indian Supreme Court can do better than to simply flip the narrative.
I. WOMEN’S ENTRY
Sabarimala’s exclusionary practices have been something of a sleeper scandal. For decades there has been low-level rumbling about the nature and appropriateness of the ban on women, but until quite recently there was very little to suggest either the legal register at which the debate would eventually be conducted or the violence with which its conclusion would be received.
The ban itself is just one among many unusual features of the temple.Footnote 19 Unlike many Hindu temples, Sabarimala is a pilgrimage site rather than a place of everyday worship. It is located far from any contemporary or historical settlement, in the hills of what is now the Periyar Tiger Reserve in Kerala, and it is not easily reached by modern transportation. The temple is also open only at select times: for a festival in April; for its annual pilgrimage season, which runs roughly between November and January; and for a few days at the beginning of each month. More strikingly, Sabarimala’s presiding deity, Ayyappan, is a male deity born of two other male deities, Vishnu and Shiva, when one of them temporarily assumed female form. At Sabarimala, Ayyappan is also considered a bachelor (unlike most male Hindu gods) and his type of bachelorhood—naishtika brahmacharya—arises from a permanent vow of celibacy rather than a transitory stage of life.Footnote 20 Most commentators agree that at least in April and during the pilgrimage season, devotees visiting Sabarimala must complete a forty-one-day penance during which they abstain from coarse language, alcohol, sex, and nonvegetarian food, go unshaven, engage in various prayer and spiritual activities, and wear distinctive black clothing (see generally Osella and Osella Reference Osella and Osella2003).Footnote 21 Finally, and unlike the vast majority of Hindu temples, Sabarimala seems to have always allowed (men of) all castes and all religions within its premises.
The only substantive legal treatment of the ban before IYLA is a relatively brief 1991 Kerala High Court decision, S. Mahendran v. Secretary, Travancore Devaswom Board.Footnote 22 Mahendran began as a public interest litigation (or PIL) suit filed by a male devotee who complained that young women in the prohibited age range were visiting the temple and that one woman in particular, S. Chandrika, had conducted her infant grandson’s rice-feeding ceremony there. Various parties were impleaded: the State of Kerala and the Travancore Devaswom Board (TDB) (the statutory body responsible for managing Sabarimala) as respondents, and the Indian Federation of Women Lawyers and the Kerala Kshethra Samrakshana Samithi (a religious advocacy organization) as intervenors.Footnote 23 The Mahendran court considered both the parameters of the ban and possible justifications for it. Ultimately, and via an opinion less than twenty pages long, the court not only affirmed the ban’s constitutionality, it also expanded the ban’s applicability to all days that Sabarimala is open to the public.
Mahendran now matters less for the arguments it elicited or the principles it explicitly laid down—which have at any rate been canvassed elsewhere—than for what it implicitly communicates about that particular stage in the conversation on Sabarimala (see Uma and Das Acevedo Reference Uma and Acevedon.d.; Das Acevedo Reference Das Acevedo2018). Women are remarkably absent in this opinion about women. This is literally so, in that Chandrika herself is only named seven times in the entire opinion (five of those being on the first page) and is only indirectly referenced another two, perhaps three, times.Footnote 24 The only woman to appear in the opinion besides Chandrika is counsel for the Indian Federation of Women Lawyers, who surfaces just three times.Footnote 25 There are no female witnesses cited—against the ban or otherwise—although no fewer than seven witnesses were heard and many of them were explicitly referenced by the court.Footnote 26 Some of this is inevitable: Keralite tantris are men (although some other priest-roles or priestly duties may be fulfilled by women) and so are the actual, if not titular, heads of most Keralite royal families who enjoy customary rights at temples that were formerly under their patronage. For instance, the erstwhile Raja of Pandalam, whose family has long had a connection with and privileges at Sabarimala, was one of the seven witnesses cited in Mahendran and has been a vocal source of resistance to the IYLA verdict.Footnote 27
But beyond their merely cursory literal inclusion women are also absent from Mahendran at a conceptual level, and this is far more worrisome.Footnote 28 The Kerala High Court simply seems uninterested in women—in their rights, their opinions, or their concerns. Although it formally stipulates that one of the questions for consideration is whether “the denial of entry … amounts to discrimination and [is] violative of Articles 15, 25 and 26 of the Constitution,” the court never actually analyzes the Article 25(1) (religious freedom) rights of female devotees.Footnote 29 It does, at one point, appear to edge closer toward taking up this issue—too close, in fact, because after briskly articulating the protections afforded to all individuals under Articles 15 and 25(1), the court immediately observes that religious denominations are granted the freedom to manage their own affairs under Article 26. As an example of jurisprudential dodgeball, it is superb.
Mahendran also spares no thought for privacy or dignity concerns that may inhere in being excluded from a public place of worship on the basis of a sex-specific bodily function. Of course, at the time the opinion was issued, the Indian Supreme Court’s jurisprudence on these issues was far less developed than it is now. There was no Suchita Srivastava (reproductive rights),Footnote 30 no NALSA (third gender),Footnote 31 no Puttaswamy (privacy),Footnote 32 and no Navtej Singh Johar (same-sex intimacy)Footnote 33 to assert the fundamental nature of a right to privacy or to spell out how that right might relate to corporeal dignity and autonomy. Moreover, Sabarimala’s ban is in some superficial sense orthogonal to the link between menstruation and privacy, insofar as the ban is expressed in terms of age (“no women between the ages of 10 and 50”) rather than the thing, menstruation, that it is ostensibly concerned with. This does not obviate concerns about the link between menstruation and exclusion—discriminatory goals that are difficult to achieve or that are imperfectly achieved are still discriminatory. Perhaps, then, the answer (notwithstanding Justice Chandrachud’s IYLA opinionFootnote 34 ) is that there simply is no privacy violation in using the force of law to forbid women from participating in devotional activities on the basis of their menstrual status. But the Mahendran court did not even ask the question.
The erasure of women is a profound shortcoming, as well as one that is all the more striking given the eventual contrast with IYLA, but it is worth remembering that Mahendran hardly constitutes the entire prehistory of the dispute over women’s entry at Sabarimala. We can make out some elements of that prehistory from the Kerala High Court’s own opinion, as well as from insights gleaned from conversations,Footnote 35 and from archival evidence,Footnote 36 and they all suggest that two things are virtually indisputable based on the information currently available to us.Footnote 37 First, it seems clear that some form of exclusion has always been practiced at Sabarimala with respect to women. And second, it seems equally clear that the parameters and validity of these exclusionary practices have always elicited some confusion or resistance.
One of the more recent examples of confusion over the ban is the unlikely series of events that gave rise to the IYLA petition itself.Footnote 38 In 2006, an astrological rite produced a surprise confession from Jaimala, a minor Kannadiga actress, who faxed an apology to temple authorities for having desecrated the deity by visiting Sabarimala when she was in her twenties. Not only did she claim that she was unaware of Sabarimala’s ban at the time of her visit, she also said that she was pushed by the throng of visitors into the sanctum itself.
There was universal agreement that neither of these assertions were plausible given her obvious youth and beauty at the time of the supposed visit; even Jaimala’s husband understood her claims as the product of an overly active devotion.Footnote 39 A consensus quickly emerged that she had fabricated her confession, perhaps as a publicity stunt. The “Jaimala scandal” soon shifted into being a debate over the mechanics of Section 295 of the Indian Penal Code, which prohibits actions intended to hurt religious sentiments (the sentiments in question being those of Ayyappan devotees who oppose women’s entry) rather than over constitutional concerns connected to the ban itself. The episode’s greatest legal significance lies in the national media coverage it provoked and the public interest suit, which was the original IYLA writ petition, that this coverage inspired.
In retrospect, the twenty-four to thirty-six months preceding the IYLA verdict provided unambiguous hints as to the possible scale and intensity of post-verdict protests. In late 2015, two separate yet virtually simultaneous social movements drew unprecedented national attention to the Sabarimala ban. On the one hand, a student named Nikita Azad wrote an open letter to Prayar Gopalakrishnan, then president of the Travancore Devaswom Board (TDB), critiquing his views on menstruation, cleanliness, and sin (Azad Reference Azad2015a). Gopalakrishnan had recently implied that the TDB would be open to allowing women within Sabarimala only once it was possible to mechanically scan women’s bodies to determine whether they were menstruating (Times News Network 2015). Azad’s letter went viral and soon she had herself impleaded as an intervenor in the IYLA suit that had been filed back in 2006.Footnote 40 Her letter even inspired a hashtag campaign, #HappyToBleed, that also went viral as confirmed by the fact that it was soon met by a counter campaign, #ReadyToWait.Footnote 41
Around the same time that Nikita Azad was posting her online letter, a community organizer named Trupti Desai was reading about purification rituals at the Shani Shignapur temple in her home state of Maharashtra (see Das Acevedo Reference Das Acevedo2018, 568–71). The rituals were meant to atone for the intrusion of a group of women into the temple’s traditionally all-male space. Desai promptly attempted to enter the temple along with members of her women’s community group, and over the next year or so she would lead or participate in similar agitations at three Hindu temples and one Muslim shrine.Footnote 42 All of these religious institutions would eventually grant access to women—except for Sabarimala.Footnote 43
In the aftermath of the IYLA verdict, Desai reiterated her intention to visit Sabarimala and was greeted with the kind of frothing rage that is as unsurprising today as it would have been peculiar at the time of the Jaimala incident. Prayar Gopalakrishnan, for his part, managed to simultaneously deploy conflicting tropes of women as temptresses and as victims over the course of a single news conference. He declared that allowing women to enter Sabarimala would turn it into “Thailand,” while also warning women interested in visiting the temple that they would be leaving themselves open to “get[ting] caught by a tiger or a man” (The News Minute 2018). A Keralite actor and member of the Hindu nationalist (and nationally governing) Bharatiya Janata Party announced that “[w]omen [who visit Sabarimala] should be ripped apart; one half should be sent to Delhi and another to the Kerala Chief Minister” (ibid). Protests erupted in over 200 locations across Kerala, and the Kerala unit of another Hindu nationalist organization, the Shiv Sena, threatened mass suicides if the verdict was not overturned (Jacob Reference Jacob2018; Times Now Digital 2018). Women journalists attempting to visit Sabarimala during its first days open after the verdict were pelted with stones notwithstanding the presence of a police escort (Times News Network 2018, discussing the experiences of the New York Times reporter Suhasini Raj). As of this writing, only two women in the prohibited age range appear to have successfully visited Sabarimala; one of them was briefly thrown out of her marital home and separated from her child, and both have received death threats (Times Now Digital 2019, Scroll.in 2019b).
None of this is due to the reasoning in IYLA. Supreme Court decisions, even in India, do not carry that kind of punch. The ominous warnings and protests and abuse would have almost certainly unfolded just as they did regardless of the particular reasons why the plurality authors—and a majority of the judges hearing the case—arrived at their ultimate conclusion. Quite possibly, an opinion that upheld Sabarimala’s ban would have also elicited massive (although, one hopes, peaceful) demonstrations; certainly, the social movements that pre dated IYLA and the women’s counter protests that have occurred after the decision suggest that this was possible (Jacob Reference Jacob2018; British Broadcasting Corporation 2019).
But precisely because IYLA involved the kind of issues that could be expected to generate ominous warnings and protests and abuse, and because a good deal of this popular appeal was already on display in the months preceding the verdict, any opinion the Court produced needed to be constructed with self-conscious care. At the very least, the opinion needed to be written in a way that reflected the balancing potential of the Constitution and the balancing purpose of the essential practices doctrine. Ideally, it would have been written so that it could lead both sides to see themselves in its reasoning, if not in its outcome. For the reasons outlined below, that opinion has not been forthcoming.
II. IYLA v. STATE OF KERALA
The four opinions issued in IYLA v. State of Kerala are by no means the Supreme Court’s lengthiest pronouncements—Kesavananda Bharati was over seven hundred pages long, while even recent judgments like Puttaswamy and Navtej Singh Johar clock in at 637 and 311 pages, respectively—but they are still too long to comprehensively survey here.Footnote 44 The IYLA opinions are also characteristically eclectic in their choice of legal and cultural inspiration: Chief Justice Misra quotes Susan B. Anthony and Henry Ward Beecher within the first three pages of the plurality opinion, while Justice Malhotra looks to the Supreme Court of Alaska at one point and Justice Nariman quotes religious sources ranging from the Gospel of Mark to the Guru Granth Sahib to the Bundahishn.Footnote 45 It is impossible to capture all of this color in the space of a few sentences. What follows is merely a series of thumbnail sketches for readers who have not been able to read through part or all of the Court’s nearly two-hundred-page opus.Footnote 46
After summarizing the arguments of the various petitioners, respondents, intervenors, and amici—no small feat, in a case where there are well over half a dozenFootnote 47 —Chief Justice Misra, writing for himself and Justice Khanwilkar, begins by stating that Ayyappan devotees do not constitute a religious denomination separate from Hinduism. (If they did, they would be entitled to manage their own religious affairs under Article 26 of the Constitution.) He then asks whether Sabarimala’s ban can be understood as an “essential practice” of Hinduism, such that Ayyappan devotees who favor the ban would be able to claim protection for it under Article 25(1), and he answers this in the negative.Footnote 48 Part III of this article explains the essential practices doctrine and its treatment in IYLA in greater detail.
Finally, the Chief Justice examines specific provisions of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, as well as the statutory Rules meant to give effect to the Act. Section 3 of the Act provides that places of public worship that are “open to Hindus generally or to any section or class thereof, shall be open to all sections and classes of Hindus.”Footnote 49 Section 4 stipulates that although trustees of public places of worship may make regulations to maintain “order and decorum and the due performance of rites and ceremonies,” these regulations may not discriminate against any Hindu on the grounds he belongs to a particular section or class.Footnote 50
However, Rule 3(b), formulated under the power granted by Section 4, states that temple authorities may exclude “[w]omen at such time during which they are not by custom and usage allowed to enter a place of public worship.”Footnote 51 In most contexts, Rule 3(b) is understood to permit the exclusion of women during the few days they are literally menstruating but the IYLA respondents maintain that as regards Sabarimala, Rule 3(b) permits the exclusion of women aged ten to fifty because they are likely to be in between menarche and menopause. The plurality opinion concludes that Rule 3(b) violates Sections 3–4 of the Act, as well as the religious freedom rights of female Ayyappan devotees under Article 25(1) of the Constitution.Footnote 52
The first twenty paragraphs, or roughly fifty pages, of Justice Nariman’s concurrence extensively reviews existing jurisprudence on religious freedom and, in particular, on the “essential practices” doctrine.Footnote 53 His discussion of the Sabarimala dispute begins with an analysis of the interplay between Article 25(1) (protecting freedom of religious belief and practice) and Article 25(2) (which allows the state to regulate the secular aspects of religion notwithstanding the protections afforded by 25(1)), as well as with a review of the contrast between Articles 25(1) and 26.Footnote 54
Justice Nariman then moves on to a brief synopsis of Mahendran and the religious rationales for Sabarimala’s ban—in particular, the idea that fertile women simply cannot complete the forty-one-day penance because of the ritual impurity associated (not only at Sabarimala) with menstruation.Footnote 55 He canvasses several religious texts in order to conclude that “[a]ll the older religions” view menstruation as ritually polluting, while “the more recent religions” take “a more pragmatic view.”Footnote 56 (The “older religions” Justice Nariman cites are Hinduism, Judaism, Islam, Christianity, and Zoroastrianism; the “new religions” are Sikhism and the Baha’í faith.)Footnote 57
Next, like the plurality, he considers the denominational rights of Ayyappan devotees under Article 26 as well as the validity of Rule 3(b) regarding the exclusion of women “at such time during which they are not by custom and usage allowed to enter a place of public worship.” He too finds that Ayyappan devotees do not qualify for Article 26 protection and that Rule 3(b) violates Section 3 of the Authorisation of Entry Act as well as the Constitution.Footnote 58
Before he concludes, Justice Nariman briskly disposes of two of the respondents’ objections: first, that the Indian Young Lawyers Association is not an appropriate petitioner, and second, that the Supreme Court should have engaged in fresh fact-finding when it heard IYLA.Footnote 59 To the objection that the IYLA’s representatives suffered no personal harm as a result of the ban because they are not devotees of Ayyappan, Justice Nariman responds that the dispute presented “far-reaching” constitutional matters and so “this technical plea cannot stand in the way of a constitutional court applying constitutional principles to the case at hand.”Footnote 60 Nor, he says, was the Supreme Court obliged to look beyond materials carried over from Mahendran and new affidavits filed by the parties, since “[t]he facts, as they emerge … are sufficient.”Footnote 61
Justice Chandrachud’s concurrence runs for over sixty pages divided into fourteen parts or 119 paragraphs; it is a book as much as it is a judicial opinion. Several parts of this concurrence engage with issues that were also considered by the plurality and by Justice Nariman: the origins and development of essential practices jurisprudence (Parts F and G); whether or not Ayyappan devotees constitute a religious denomination (Part H); and the statutory and constitutional validity of Rule 3(b) (Part J). To be sure, Justice Chandrachud’s analysis of these issues is not identical to that of his colleagues. As Part III of this article demonstrates, he makes an astute and (within the bounds of the IYLA verdict) unique observation about shifts in essential practices jurisprudence, although he does not seem to heed the lesson of his own teaching.Footnote 62
Beyond some areas of common interest, Justice Chandrachud also ventures into topics that are clearly part of the documentary record but that were, for whatever reason, overlooked by the other justices in the majority. He considers whether exclusion based on ritual pollution constitutes a form of untouchability and is thus prohibited by Article 17 of the Constitution (Part I); whether the ban was an uncodified “custom or usage” that existed before independence and as such enjoys some immunity from the Constitution (Part K); the extent to which the ban is premised on a sexual stereotype of women as too weak-willed to complete the forty-one-day penance or too physically weak climb to Sabarimala’s mountaintop location (Part G); and, finally, whether a deity can be said to have constitutional rights (Part L).Footnote 63 Although Justice Chandrachud’s perspectives on these issues do not create precedent, they acknowledge—and identify for review petitions—gaps in the plurality opinion.Footnote 64
After summarizing the parties’ submissions, Justice Malhotra’s dissent begins by questioning, on various grounds, the appropriateness of the lead petitioner as well as the use of public interest litigation (PIL) in this context.Footnote 65 Ideally, she argues, a petitioner who directly approaches the Supreme Court regarding a violation of fundamental rights should have personally suffered that violation.Footnote 66 Where a fundamental rights violation is articulated via a public interest suit (and consequently where the petitioner need not plead personal harm) the petitioner should at the very least be a member of the community whose practice is being questioned.Footnote 67 Overall, however, Justice Malhotra seems skeptical of using PIL suits to vindicate Article 25(1) claims at all.Footnote 68
Justice Malhotra’s views on fundamental rights vindication via PIL suits constitute an unusual perspective as well as a foundational parting of ways with her colleagues, but she also diverges from the majority on the narrower questions of the case. On the denominational status of Ayyappan devotees, the validity of Rule 3(b), and whether the ban relates to an essential religious practice, she simply disagrees with her colleagues.Footnote 69 She also draws on the Constituent Assembly debates concerning the drafting of the Indian Constitution to argue that Article 15 (nondiscrimination on the basis of, among other things, sex) and Article 17 (prohibition of untouchability) were never meant to apply in situations like Sabarimala’s ban on women.Footnote 70
Finally, among her more striking arguments are two observations about religion: that courts should not weigh religious practices against constitutional understandings of rational behavior, and that “[t]he form of the [Hindu] deity in any temple is of paramount importance.”Footnote 71 The former point, which would have been impressively banal coming from an American justice, is a shockingly self-limiting statement for a member of the Indian Supreme Court. Since when exactly, one imagines generations of scholars and lawyers asking incredulously, is “delineat[ing] the rationality of … religious beliefs or practices … outside the ken of the Courts”?Footnote 72
Justice Malhotra’s second point about Hindu deities is an important one and a response to an argument contained in both the plurality opinion and some of the petitioners’ filings that Sabarimala’s ban was not essential to Ayyappan worship because other Ayyappan temples did not have a similar ban.Footnote 73 She notes that Ayyappan-at-Sabarimala has a different personality and preferences than Ayyappan-elsewhere, and suggests that since “[w]orship has two elements—the worshipper and the worshipped” the right to worship Ayyappan-at-Sabarimala “cannot be claimed in the absence of the deity in the particular form in which he has manifested himself.”Footnote 74
Of course, what Justice Malhotra’s observation overlooks is the potential for disagreement between devotees as to the restrictions imposed by a deity’s “particular form.” Still, her point about the differing personalities of Hindu temple deities is significant and strikingly overlooked by the other justices, especially given the religious and legal salience of deity personas. Temple ethnographies and other studies too numerous to properly reference here attest to the unique habits and preferences of deity X as manifested at temple Y.Footnote 75 Likewise, generations of scholars and judges have studied the construction of temple deities as juristic persons having interests, preferences, and property.Footnote 76 Despite considerable variation in disciplinary focus and interpretation, all of this prior engagement—which found no place in the plurality’s analysis—offers support for Justice Malhotra’s view that, when it comes to Hindu temple deities, it simply does not make sense to employ generalizations along the lines of “what Ayyappan wants.”
This overview cannot fully capture the justices’ analysis, which is at once more detailed and more comprehensive than I have suggested here. Nor does it adequately convey the palpable absence of individual believers in three of the four opinions. The next section takes up two analytic moves variously employed by the majority opinions, especially the plurality written by Chief Justice Misra, in order to show how they efface believers from a dispute about belief. It also explains the history and contours of the essential practices doctrine in order to show how the plurality opinion reflects a common, problematic, and avoidable application of the doctrine.
III. HINDUS, JUST HINDUS
As Part II noted, the Chief Justice opens his analysis by declaring that Sabarimala is not a denominational temple because Ayyappan devotees are “just Hindus.” Whether or not one is merely Hindu or something more specific matters a great deal for the purposes of the Indian Constitution, just as it matters whether or not one is merely Muslim or Christian or something more.Footnote 77 As it turns out, though, it is very hard to not be Hindu in the eyes of the Court.Footnote 78
The “essential practices” doctrine was established via a landmark 1954 Supreme Court case called Shirur Mutt and was meant to provide judicial guidance for the task of determining the scope of individual and group religious freedom under Article 25. But Shirur Mutt also gave rise to a second, less widely discussed test that is used to decide the applicability of group (and only group) religious freedom rights under Article 26.Footnote 79 This “denominational” test is used to decide whether a community qualifies as a “religious denomination or section thereof,” such that it should be allowed to enjoy various property rights, to establish and maintain religious and charitable organizations, and especially to “manage its own affairs in matters of religion.”Footnote 80 In the Shirur Mutt formula that has gained widespread acceptance, a denomination is marked by the possession of a name, a faith, and an organization in common.Footnote 81
By contrast, the essential practices doctrine helps sort aspects of religious life into those that are protected against state intrusion per Article 25(1), and those that the state may regulate under Article 25(2)(a) because they constitute “secular activit[ies] which may be associated with religious practice.”Footnote 82 Because immunity from Article 25(2)(a) only applies to “the essential part[s] of a religion,” and those parts are “primarily to be ascertained with reference to the doctrines of that religion itself,” the essential practices test requires courts to explicitly articulate which religious doctrines are properly ascribed to an identifiable community. In other words, denominational analysis under Article 26 inheres in essential practices analysis under Article 25. In cases where one party claims that individual religious freedom rights are being violated by a religious community or institution, the former dictates (and may shortchange) the latter.Footnote 83
The IYLA plurality reasoning makes this clear. It begins by arguing that Ayyappan devotees do not have group rights under Article 26 because they do not qualify as a religious denomination. Although individual pilgrims to Sabarimala are called “Ayyappans” for the duration of the pilgrimage, the plurality notes that devotees at large are not called Ayyappans (the way, for instance, followers of the Sikh faith are called Sikhs).Footnote 84 Nor do Ayyappan devotees have a shared faith, whether this means a “new methodology” or “any common religious tenets peculiar to themselves.”Footnote 85 They certainly do not have a common organization if that is understood to be an exclusive religious community with an authoritative ecclesiastical hierarchy—say, like the Catholic Church—although there are many devotional associations dedicated to Ayyappan. Put together, the plurality concludes, Ayyappan devotees are not a distinct denomination and consequently the Court’s task in adjudicating the Article 25(1) rights of individual devotees who favor the ban is to determine whether excluding women between the ages of ten and fifty from temples is an essential practice of Hinduism. At the end of a series of passages that is almost as suspenseful as the alphabet song, the plurality concludes in the negative.Footnote 86
The concurrences by Justice Nariman and Justice Chandrachud flesh out the connection between Articles 26 and 25(1). Justice Nariman states that since non-Hindus may worship at Sabarimala without ceasing to be practitioners of their own faith, Hindus who worship at Sabarimala also do not cease being Hindu.Footnote 87 Moreover, there are (according to the Respondents) over a thousand Ayyappan temples across India and it is to be assumed that Hindus worshipping at those temples would be surprised to learn that, by doing so, they have been practicing a distinct religion.Footnote 88 Justice Chandrachud takes an unusual approach to the relationship between Articles 25 and 26. He argues that since the Mahendran record demonstrates that Sabarimala’s ban has not enjoyed perfect observance, and since the need for the ban forms “[t]he basis of the claim that there exists a religious denomination of Ayyappans,” it follows that where there is no uniformity there is no denomination.
All of this coheres with the majority’s view, held with “mathematical certainty” by the plurality, that Ayyappan devotees are insufficiently idiosyncratic to be something other than Hindus.Footnote 89 The allusion to mathematics is apt. The IYLA majority judges, like many others before them, seemingly calculate denominational status for the purposes of essential practices analysis using a kind of cultural arithmetic. Starting from an ascribed base affiliation—Christianity, Islam, or in most cases, Hinduism—judges have tended to “subtract” points of difference. Do the followers of the spiritual leader Ananda Murti refer to themselves as Ananda Margis?—then they no longer share the name “Hindu.”Footnote 90 Does a temple’s deed of endowment or any of its other foundational legal documents demonstrate that it was established for the benefit of a specific community?—then that community may no longer share the same organizational infrastructure as Hindus.Footnote 91 If enough points are subtracted, then the community may gain recognition as a denomination. If not, as Chief Justice Misra observed, its members are “just Hindus.”Footnote 92
Binary thinking is no less popular in law than it is in computer science and the IYLA majority’s approach to denominational and essential practices analysis produces plenty of binaries. Individuals either are or are not Hindu; beliefs and practices either are or are not essential; communities either are or are not exclusive denominations. Inasmuch as its goal is to sort Ayyappan worship into any of these buckets, the plurality’s conclusions are not unreasonable. It is undeniably true that not all Ayyappan temples exclude fertile women (in fact, it is quite likely that no other Ayyappan temple does this). It is equally true that being a devotee of Ayyappan places few proscriptions or prescriptions on one’s everyday existence; the forty-one-day penance is a special observance rather than a way of life. And it is also the case that worshipping Ayyappan—whether at home, at Sabarimala, or at one of the other “thousand” Ayyappan temples scattered throughout India—does not preclude worshipping other deities or even belonging to other faiths.
But this kind of either/or analysis produces conclusions that are problematic and beside the point—or, more accurately, that are problematic because they are beside the point. In some ways the denominational test is a poor fit for any religion. Naming conventions reflect external viewpoints as much as or in addition to self-identification—the Court’s own frequent allusions to the “foreign” (meaning, Persian) origins of the term Hindu excellently illustrate this point.Footnote 93 Likewise, religious identity is frequently characterized by loyalty to multiple, overlapping communities rather than by a singular and exclusive affiliation: one is both a Christian and a Baptist, a Muslim and a Shi‘a, a Hindu and a devotee of Ayyappan.Footnote 94 The one is not less true or less salient than the other. Part of the trouble in applying the denominational test is the trouble inherent in any governmental actor defining any religion and, as such, it can be mitigated but not avoided.Footnote 95
In other ways, however, the denominational test seems especially unsuited to Hinduism—or, at the very least, it should be understood as actively squeezing Hindu beliefs and practices into uncomfortably narrow categories and thereby transforming them. (Of course, other aspects of the Court’s religious freedom jurisprudence reflect constitutional impulses favoring Hinduism above other faiths [Schonthal et al. Reference Schonthal, Moustafa, Nelson and Shankar2016, 971 –74].) “To the question ‘Is Hinduism monotheistic or polytheistic?’ the best answer is, ‘Yes’ (which is actually the answer to most either/or questions about Hinduism)” (Doniger Reference Doniger2014, 10). More specifically, to the question “Are you an Ayyappan or a Saivite [follower of Shiva] or a Vaishnavite [follower of Vishnu]?” the best answer, once again, may often be “Yes.” This feature of Hinduism, namely, the potential for worshipping “a number of gods, one at a time, regarding each as the supreme, or even the only, god while you are talking to him” has been variously called henotheism or kathenotheism or, more simply, serial monotheism (ibid, 11–12; citing Max Müller). Whatever its name, as an approach to religious identity and exclusivity of belief, it does not find space within the denominational test.
Other aspects of Hindu belief and practice that cannot be easily sorted into binaries are similarly discounted. For instance, the plurality’s approach to denominational analysis requires that Ayyappan devotees think of themselves as “Ayyappans” throughout the year instead of only when they are on pilgrimage—and since they do not, it ignores the fact that they do think of and refer to themselves as Ayyappans while on pilgrimage.Footnote 96 The plurality’s approach also requires that Ayyappan devotees have unique “methodologies” or “tenets” but ignores their view that Ayyappan-at-Sabarimala has different traditions and preferences than Ayyappan-elsewhere (this was the point made by Justice Malhotra in her dissent).Footnote 97 Instead, the plurality requires believers and their temples to have uniformly unique tenets and practices. Over and over again, the plurality demands consistency and exclusivity and, where it encounters none, it discounts whatever points of distinction it does encounter.
None of this is mandated by the Constitution or even by the essential practices doctrine, which—as Justice Chandrachud notes—long ago shifted from protecting essentially religious (as opposed to secular) practices to protecting the much smaller and more difficult-to-determine circle of practices that could be considered essential to religion.Footnote 98 Later on, Justice Chandrachud makes a stronger (and perhaps even more critical) observation: “Beginning with the Shirur Mutt formulation that what is essential to religion would be determined by the adherents to the faith, the Court moved toward a doctrine that what is essential ‘will always have to be decided by the Court.’”Footnote 99 However, he ultimately seems to just go along with the reformulated, Court-centric version of the essential practices test that he has painstakingly exposed as incidental rather than conceptually required.Footnote 100 As the followers of Ananda Murti discovered over the course of a multidecade lawsuit to protect their sacred tandava dance, essential religious practices are frozen in time: they must have existed and been important “since time immemorial” or since the religion’s founding, whichever is earlier.Footnote 101 Perhaps Ananda Margis would not have won under the Court’s original and more expansive understanding of the test, either, but there was no chance of their winning under its later, narrower interpretation. And, contrary to many of its critics, the essential practices doctrine need not have developed into the virtually unwinnable proposition it is now.
The plurality’s demand for consistency and uniformity is not, strictly speaking, an adjudicative failing: the denominational test has never explicitly emphasized internal categories after the manner of the essential practices test. But given their shared origins in Shirur Mutt, it seems awkward to think of the two tests as proposing radically different approaches to categorizing religion. What is more, in light of the way denominational analysis necessarily impacts essential practices analysis, it stretches credulity to suggest that an objective standard for one does not compromise the subjective standard advocated by the other.
Perhaps the best defense of the plurality’s approach is that denominational analysis—like its essential practices counterpart—depends on the availability of parties who can speak to the relevant factors. Even in those rare cases (like Sabarimala) where there exists an authoritative religious authority (the temple’s tantri) there is often still no readily identifiable community whose opinion can be canvassed. Hindus are by and large not congregational and pilgrimage venues like Sabarimala are not congregational by definition. Well over forty individuals or organizations submitted review petitions asking the Supreme Court to reconsider its IYLA ruling, each of them claiming to speak for some or all Ayyappan devotees.Footnote 102 Even if an identifiable community miraculously agreed on a designated spokesperson, we would have to pause at the spectacle of the apex court of independent, democratic India turning to a courtroom religious expert in order to pronounce upon true faith: the shades of the East India Company are not so very far behind us.Footnote 103 But if the Court has no one to ask, should we still fault it for failing to raise its hand?
Perhaps. There may be value to believers—there is definitely value to the Court—in a judicial process that takes careful account of their perspectives, even if the outcome of that process is not in their favor. This is all the more true in circumstances, like the essential practices doctrine, where the judiciary itself proclaims that litigants’ beliefs and perspectives establish the appropriate parameters for analysis. There is a considerable literature examining why people perceive institutions and rules to be legitimate, much of which boils down to the following proposition: “authorities and institutions are viewed as more legitimate and, therefore, their decisions and rules are more willingly accepted when they exercise their authority through procedures that people experience as being fair” (Tyler Reference Tyler2006, 380; internal citations omitted). Jurisprudential interpretive strategies are not, strictly speaking, procedures, but they are certainly analogous. Moreover, the process of legitimation is explicitly cumulative, such that the question is not whether a more thorough and evenhanded approach in IYLA itself might have made the decision more palatable, but whether such an approach before and during IYLA might have made the decision more palatable (ibid, 381). In the following Part, I will show that the IYLA Court disregarded the perspectives of Ayyappan devotees, this time not en route to designating them “just Hindus” but in the course of determining what kind of people Hindus are.
IV. INHERENTLY JUST HINDUS
“Truth is one; sages speak of it variously.”Footnote 104
For decades now, this single line of poorly translated Sanskrit, derived from the Rg Veda and popularized by Swami Vivekananda, has had a considerable hand in shaping Hindu perceptions of self (Doniger Reference Doniger2014, 18). Its satisfying blend of monotheism, perspectivism, and enlightenment allows Hindus, regardless of their backgrounds and political priors, to see their faith as a same-but-better version of the other great (but sadly less open-minded) world religions.Footnote 105 It operates in the background of much political, cultural, and legal discourse on Hinduism today, whether in India or abroad, and informs debate even where it does not formally appear (although, as we will see shortly, it makes frequent cameo appearances). Always, the line invites Hindus to assume that they speak from a position of inherent cosmopolitanism. The IYLA plurality—like so many justices before them—accepts the invitation.
Early on, Chief Justice Misra articulates the plurality’s view that real religion is progressive and pleasingly aligned with constitutional principles:
Any relationship with the Creator is a transcendental one crossing all socially created artificial barriers and not a negotiated relationship bound by terms and conditions … which do not meet the constitutionally prescribed tests.Footnote 106
Shortly thereafter:
It is a universal truth that faith and religion do not countenance discrimination….Footnote 107
And, familiarly:
All religions are simply different paths to reach the Universal One.Footnote 108
Although the themes of oneness, universality, and inherent broadmindedness do not explicitly figure very much beyond these initial passages, they do unspoken work throughout the opinion. At paragraph 117, the plurality cites an early Supreme Court case on religious freedom, Durgah Committee,Footnote 109 for the proposition that “some practices, though religious, may have sprung from merely superstitious beliefs.”Footnote 110 At paragraph 122, it notes that the exclusion of women from temples cannot be viewed as an essential practice of Hinduism “and on the contrary, it is an essential part of the Hindu religion to allow Hindu women to enter into a temple.”
Indian justices have been defining away clashes between progressive constitutional principles and less-than-progressive religious practices ever since the essential practices doctrine was developed. In 1958, just four years after the doctrine emerged, the Court held that Sanskrit texts called the Agamas, when correctly understood, did not mandate the exclusion of Dalits from a Brahmin temple.Footnote 111 In 1966, the Court declared that a group called the Satsangis were merely Hindu reformers, and that their desire to exclude Dalits from Satsangi temples was based on “superstition, ignorance and [a] complete misunderstanding of the true teachings [of the] Gita … of Hindu religion and of the real significance of the tenets and philosophy taught by [their leader] Swaminarayan himself.”Footnote 112 This long history of resolute optimism means that the IYLA plurality opinion is not remarkable in any substantive sense. It is not unusual because it reflects the curious idea that something as internally variegated as Hinduism could have “an” orientation toward every kind of discrimination. It is not even unusual because it concludes that proper Hinduism is nondiscriminatory. The Supreme Court has long advanced the idea that Hinduism is, even if individual Hindus are not, inherently rational and just.
What does make the IYLA plurality stand apart is the ease with which it operationalizes these assumptions. Instead of stepping carefully through multiple sources and pausing to consider the cultural or religious histories of Ayyappan worship that are very much a part of the current dispute (something which Justice Chandrachud, to his credit, does attempt to do) the plurality teleports itself to its conclusion. On a profoundly generous reading, it spends some fifteen to twenty sentences scattered throughout a thirty-two page opinion exploring the tenets and practices of Ayyappan worship. In the Satsang case, by contrast, in which Chief Justice Gajendragadkar was no less willing to inform the plaintiffs that they were (unwilling) Hindus and that Hinduism was progressive in ways they were not, the Court easily spent half a dozen pages (of a twenty-page opinion) exploring Hinduism, Satsang beliefs, and the relationship between the two.
Once again, things need not have been this way. Neither Justice Nariman, who canvasses various religions for their views on menstruation, nor Justice Chandrachud, who goes to considerable effort to define the contours of Ayyappan worship, assume that religion (whether Hinduism in general or Ayyappan worship in particular) is inherently nondiscriminatory. Justice Nariman is quite willing to grant that Sabarimala’s ban may be a genuine and even an important aspect of Ayyappan worship and to nonetheless call it discriminatory and therefore unconstitutional.Footnote 113 Justice Chandrachud makes an even finer distinction: he does not believe the ban is an essential aspect of religious life at Sabarimala but he implies that even if it were essential it would still fall afoul of constitutional values like dignity, liberty, and equality, and thus be impermissible.Footnote 114 Disagreement of this sort, unlike universalizing claims of transcendental oneness, rests on an acceptance of litigants’ self-perceptions as well as an acknowledgement of the raw power being exercised whenever a court outlaws some aspect of those perceived selves.
Acknowledgements of power matter in all polities but especially in constitutional democracies where judicial authority depends on the buy-in of other branches of government, to say nothing of citizens themselves. This is not, pace one bedeviled Congress politician, a way of saying that “abstract notions of constitutional principle also have to pass the test of societal acceptance” (Tharoor Reference Tharoor2018). A court is a court and not a legislature. It is also not to say that a plurality opinion less concerned with telling Ayyappan devotees that they have misunderstood the true nature of Hinduism (or of religion itself) would have generated any fewer protests. Reform, whether for better or for worse, hurts.
But while the Indian Constitution’s commitments to social reform may be beyond question, so too is its understanding that citizens are more than putty in the hands of a benevolently paternalistic state. They are, on the contrary, also the real locus of political sovereignty (Das Acevedo Reference Das Acevedo2016b, 580–81). As such, they have rather conventionally liberal rights like the freedom of conscience, of speech, and of association—and proof that the Court respects those rights even as it acknowledges the state’s role in reforming religion is in its own essential practices pudding.
Admittedly, India’s Supreme Court has often been more willing to countenance state authority over religion than many of the High Courts. The Kerala High Court’s Mahendran ruling approving Sabarimala’s ban was effectively negated by IYLA; a Calcutta High Court ruling in favor of the Ananda Margis’s tandava dance was struck down—twice—by the Supreme Court; a Rajasthan High Court ruling that Sufi leaders had Articles 25 and 26 rights regarding the management of their dargah was overturned on appeal, and so on.Footnote 115 But a Court that has no interest in protecting the rights of individuals and communities to practice their religion as they understand it has no need to develop something like the essential practices doctrine, much less to apply it repeatedly. That it does so reflects constitutional commitments to two different visions of citizen-state relations: one in which citizens are sovereign and can designate religious life to be beyond the government’s purview, and a second in which citizens and the state share in sovereignty and the government can legitimately participate in reforming religious life (ibid). In other words, despite the general aura of progressiveness that hangs about the Court and even despite recent decisions supporting expansive gender and privacy rights, it was not foreordained that supporters of Sabarimala’s ban would lose.
When the Indian Supreme Court frequently reinterprets religious precepts so that they align with constitutional values, it does the important work of attempting to reconcile these two conflicting impulses. Its approach may even occasionally succeed in showing that “Hinduism, as a system of values, is not inevitably incompatible with either modern rationality … or the ideals of equality and individual freedom” (Fuller Reference Fuller1988, 247). However, neither of these worthy objectives is served by IYLA’s cloying baseline assumptions about religion that—like model minority myths or tropes of women as domestic goddesses—deny the object of analysis the respect of being seen.Footnote 116
More prosaically, the poor reasoning of the IYLA plurality matters in the way that all precedential opinions matter in a common law system—but more. The additional cost of a decision like IYLA is that specific jurisprudential mechanisms like the essential practices doctrine, which are far from perfect but are nonetheless legitimate attempts at maintaining India’s delicate balance between citizen sovereignty and the state’s authority to enact social reform, become eroded and easily denigrated. To be sure, IYLA is not solely or wholly responsible for undermining the essential practices doctrine; that was achieved long ago with the shift from safeguarding practices that are “essentially religious” to protecting only that are “essential religious” practices.Footnote 117 The plurality opinion is, however, responsible for further damaging the doctrine and for doing so in the context of a predictably high-profile case, thereby providing reasonable grounds for the review petitions that were sure to follow (and did). Even if nothing comes of the dozens of review petitions filed before the Court, the inconclusiveness of the dispute and the sense of being disrespected it has quite justifiably engendered among Ayyappan devotees is cost enough to the integrity of the Court and of the Constitution it works to uphold.
What would have been better than the plurality’s approach? Any number of things. The plurality might have revisited the shift from “essentially religious” to “essential religious” practices that Justice Chandrachud notes but does not himself challenge.Footnote 118 Even if the justices did not fully return to the earlier, broader standard, something in between the two extremes would have allowed for a fuller consideration of devotee beliefs and the extent to which they bump up against constitutional values like equality and nondiscrimination. Or, and even without returning to a broader essential practices analysis, the plurality might have followed the leads of both Justice Chandrachud and Justice Nariman by engaging more thoroughly—and more honestly—with the beliefs and practices of Ayyappan devotees. This would have mitigated, if not wholly avoided, the triple indignity of telling devotees they had no unique identity, they misunderstood the (Hindu) identity they did have, and that a practice they believed to be crucial to their faith would henceforth be prohibited. It would also have signaled to future benches that the essential practices doctrine means what it says: “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.”
Beyond these options inspired by the other IYLA majority opinions, the plurality might have conducted some fresh fact-finding in order to build on the writ petitions and affidavits filed by the IYLA parties and the paltry record assembled by the Kerala High Court in Mahendran. To be sure, Justice Nariman is correct when he states that “a writ petition filed under either Article 32 or Article 226 is itself not merely a pleading, but also evidence in the form of affidavits that are sworn.”Footnote 119 It is less clear that “[t]he facts, as they emerge from the writ petition and the aforesaid affidavits, are sufficient to dispose of this writ petition on the points raised before” the Court, if disposition requires a fair consideration of all parties’ perspectives.Footnote 120 Justice Nariman, for his part, seems to think that materials submitted by “the Petitioners[,] … the Board, and by the Thanthri’s affidavit” are more than adequate.Footnote 121
Finally, the plurality might have roused itself sufficiently to devise some sort of compromise approach to the problem of women’s entry along the lines of the Court approach in the 1958 case, Venkataramana Devaru, in which the justices reinterpreted textual principles in order to allow Dalit devotees limited access to a Hindu temple.Footnote 122 This is not because Devaru is an ideal approach, much less one that is more likely to have pleased the religious actors in question than IYLA pleased Ayyappan devotees. It is because Devaru exemplified a Court truly grappling with the conflicting demands imposed on it by the Constitution to both respect religious life as a private (or semiprivate) concern of sovereign citizens and to reform religious life where it impinged on other constitutional values. India’s complicated approach to religion-state relations requires a Court that is willing to do the hard and sometimes risky work of being creative, but the IYLA majority, to say nothing of the plurality, did not live up to that requirement.
Moreover, this last option would have been even more feasible in the circumstances surrounding IYLA than it was in Devaru: as the Mahendran record indicates, there has been considerable dispute over just how and when the ban on women’s entry applies.Footnote 123 At least as recently as the 1990s it does not appear that Sabarimala’s tantri and some other supporters of the ban affirmatively believed it was applicable year-round; indeed, the Mahendran Court actually extended the ban, from April and November–January to the entire year. Relatedly, there appears to have been some discussion during the Mahendran hearings as to whether women in the prohibited age range were permitted to enter the temple via a secondary entrance, alongside other pilgrims who did not carry the sacred irumudikettu bundle on their heads. All of this could have been taken into consideration by the Court if the Court had bothered to engage in fresh fact-finding.
CONCLUSION
The narrative above ought to be especially familiar to scholars of US constitutional law because it bears broad similarities to the afterlife of a famous decision by the American Supreme Court: Brown v. Board of Education.Footnote 124 Brown was long-sought and much-celebrated, and it continues to occupy a hallowed space in American jurisprudence.Footnote 125 Its outcome, in particular, is now politically unassailable. However, and starting soon after it was announced, commentators across the ideological spectrum took issue with the Court’s reasoning, arguing variously that it was “weak,” that it did not “really turn … upon the facts,” and that—at the very least—it “may be headed for … irrelevance” (Bork Reference Bork1990, 75; Wechsler Reference Wechsler1959, 33; Bickel Reference Bickel1978, 151). India is not the United States and IYLA is not Brown, but the Indian case has all the makings of teaching Brown’s lesson, namely, that winning good outcomes through bad reasoning should be sobering rather than satisfying. If anything, IYLA offers the stronger warning, written as it was by a generally progressive institution (rather than a peculiarly progressive iteration of a generally conservative institution) and under the aegis of very different legal charter.
When it comes to religious freedom, the Indian Court is left to uphold a constitutional vision of faith as neither formally established in the public life of the nation nor as relegated to the strictly private lives of citizens. It is a hard balance to strike, and like most median positions it is one that will very often please no one. Still, a Court that pleases no one is better than a Court that consistently sees and hears some to the exclusion of others. In its dismissal of any unique features of Ayyappan worship and its assumption that true religion coheres with constitutional values, the IYLA Court chose to see Ayyappan devotees not as they presented themselves (and to disagree with them anyway) but to rely on its own interpretations (while claiming to do otherwise).
The ensuing erasure is at least as great as the one effected by the prohibition of Sabarimala’s ban. It ignores the fact that the Court speaks for, and to, those citizens whose lives it changes as much as it does those who sought the change. It facilitates criticisms of India’s unusual approach to religious freedom that, though hardly unwarranted, may inspire simplifications or adoptions that are no more suited to the country’s unique circumstances and history than existing approaches like the essential practices doctrine. And, because of both India’s common law heritage and the greater authority within that common law context of constitutional benches like the one that decided IYLA, the erasure of devotee perspectives compounds this problem for future jurists and litigants.
In the end, Ayyappan devotees were effaced from a judgment about belief because of the Supreme Court’s desire to acknowledge the rights and voices of women who were rendered similarly invisible in an earlier judgment about women. The Kerala High Court’s verdict in Mahendran, though it produced no protests or threats of suicide, was no more successful at hearing competing claimants speak. But there are corrections, and then there are overcorrections. A Court that decides between opposing claims in spite of, rather than in the absence of, the strongest versions of those claims will be able to pursue its reformist agenda without needing to call any of the parties who appear before it “just Hindus.”
