The approach to interpretation of Constitution should be by emphasizing on primacy of the texts at the time it was enacted. The courts and more specifically the Supreme Court as a final interpreter should not have an undertone different from the original constitution as failing to do so will cease the law passed with democratic legitimacy. The change should come through democratic constitutional amendments and not through the ‘fast-win’ via courts thereby bypassing the proprietary of parliament.
There are two camps of Judges – one with more expansive approach of the constitution and then the others who take more textual approach of the constitution. The focus is not to compartmentalise the Judges rather it is on the laws moreover the black robe symbolises that all judges share a dedication to the rule of law and that they are engaged in a common enterprise of applying the law by separating it from there own personal preferences and interpretations.
The moot question is whether the courts while interpreting the question of the legislative or judicial precedent’s correctness can overrule the original texts of the constitution or statutes which were deeply rooted in our society by shadowing the more viable route of parliamentary amendment as envisaged by our framers.
Our foundational commitment is to the rule of law and Supreme Court of India has worked judiciously and mostly successfully to develop and uphold the rule of law. There has been however a lot of speculation lately about the courts being a mere political institution to settle scores which is a sad truth as can be seen in the plethora of cases filed before the court not because the petitioners have faced any travesty of justice but because they want to uproot the ‘original’ soul and fundamentals of constitution. The judges if they fail to caution against overenthusiastic activism then it will result in far reaching consequences of reducing the courts to a mere political arena.
The case of Indian Young Lawyers Association v State of Kerala is an interesting read where the majority 4:1 failed in their duty to interpret. Issue in the Writ Petition was a challenge to the validity of Rule 3(b) of the Kerala Hindu Places of Worship (Authorization of Entry) Rules, 1965 and sought directions to State of Kerala to permit female devotees between the ages of 10 to 50 years to enter Sabarimala temple without any restriction.
The lone dissent of Justice Indu Malhotra has rightfully cautioned against overzealous campaign and adopted a textual approach while interpreting the fundamental rights to worship and practice one’s faith and religion. She warns that by permitting PILs in religious matters at the behest of non-practitioners, the Supreme Court will be allowing interlopers to question religious beliefs and practises and that the perils of such interventions are even graver for religious minorities if such petitions are entertained.
Maintainability & Jurisdiction
On the issue of maintainability under Article 32 for violation of Fundamental Rights, in the judgment she observed that the Petitioners do not claim to be devotees of the Sabarimala Temple where Lord Ayyappa is believed to have manifested himself as a ‘Naishtik Brahmachari’. To determine the validity of long-standing religious customs and usages of a sect, at the instance of an association/Intervenors who are “involved in social developmental activities especially activities related to upliftment of women and helping them become aware of their rights”, would require this Court to decide religious questions at the behest of persons who do not subscribe to this faith.
Justice Indu Malhotra in her dissent has defined Lord Ayyappa at Sabarimala Temple as a religious denomination, or sect thereof, as the case maybe, following the ‘Ayyappan Dharma’. They are designated by a distinctive name wherein all male devotees are called ‘Ayyappans’; all female devotees below the age of 10years and above the age of 50 years, are called ‘Malikapurnams’. A pilgrim 52 on their maiden trip to Sabarimala Temple is called a ‘Kanni Ayyappan’. The devotees are referred to as ‘Ayyappaswamis’. A devotee has to observe the ‘Vratham’, and follow the code of conduct, before embarking upon the ‘Pathinettu Padikal’ to enter the Temple at Sabarimala… The religious practises being followed in this Temple are founded on the belief that the Lord has manifested himself in the form of a ‘Naishtika Brahmachari’. It is because of this nishtha, that women between the ages of 10 to 50years, are not permitted to enter the temple.
Justice Indu Malhotra rightly cautioned the Judicial review of religious practises ought not to be undertaken, as the Court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practise one’s religion according to one’s faith and beliefs. It would amount to rationalising religion, faith and beliefs, which is outside the ken of Courts.
Section 3 Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965
The meaning of constitutional text or statute is fixed at the time of its being enacted and Section 3 of the Act provides that every place of public worship which is open to Hindus generally or to any section or class thereof shall be open to all sections and classes of Hindus and no Hindu of whatsoever section or class shall, in any manner, be. prevented, obstructed or discouraged from entering such place of public worship, or from worshipping or offering prayers thereat, or performing any religious service therein, in the like manner and to the like extent as any other Hindu of whatsoever section or class may so enter, worship, pray or perform. But the section contains a proviso that in the case of a place of public worship which is a temple founded for the benefit of any religious denomination or section thereof, the provisions of this section shall be subject to the right of that religious denomination or section, as the case may be, to manage its own affairs in the matters of religion. Every place of public worship which is open to Hindus generally or to any section or class thereof shall be open to all sections and classes of Hindus. “Section or class” includes any division, sub-division, caste, sub-caste, sect or denomination whatsoever.
Section 4(1) enables the trustee or any other person in charge of any place of public worship to make regulations for the maintenance of order and decorum in the place of public worship and the due observance of the religious rites and ceremonies performed therein. That section contains a proviso that no regulation made under that sub-section shall discriminate in any manner whatsoever, against any Hindu on the ground that he belongs to a particular section or class. Rules were framed under this Act. R. 3 prohibits the persons enumerated therein from entering or offering worship in any place of public worship.
Section 3 only prevents the restriction between one section and another section or between one class and another class among Hindus in the matter of entry to a temple. Moreover, the right conferred under Section 3 is subject to the restrictions imposed in R. 3. Women who are not by custom and usage allowed to enter a place of public worship shall not be entitled to enter or offer worship in any place of public worship. That amounts to a reasonable restriction and the entry in Sabarimala temple is prohibited only in respect of women of a particular age group and not woman as a class. The restrictions imposed by Devaswom Board is not violative of Articles 15, 25 and 26 of the Constitution of India.
What is permitted by Article 25(2) is State made law on the grounds specified therein, and not judicial intervention. The 1965 Act is a legislation framed in pursuance of Article 25(2)(b) which provides for the throwing open of Hindu places of public worship. The proviso to Section 3 of the 1965 Act carves out an exception to the applicability of the general rule contained in Section 3, with respect to religious denominations, or sect(s) thereof, so as to protect their right to manage their religious affairs without outside interference.
Is the constitution a strait jacket? No, it leaves a plenty of room to change and it makes no attempt to regulate every aspect of human life. It leaves power to change in the hands of parliament and that has given the constitution a flexibility to last. Courts however should interpret the Constitution in the light of ‘originalism theory’ and if judges abandon it or change it outside the legitimate process then we are imposing restraints on the people which they have not consented to as happened to the devotees of Lord Sabrimala.