Fundamental rights are meant for individuals not deities or idols.
A deity in a temple does not have any constitutional rights, Justice D.Y. Chandrachud wrote in his separate opinion.
Justice Chandrachud was countering arguments raised that the right to preserve the celibacy of the deity in the Sabarimala temple is a “protected constitutional right”. This constitutional right of the deity extends to excluding women from entering and praying at the Sabarimala temple.
Justice Chandrachud observed that the law recognises an idol or deity as a “juristic person which can own property and can sue and be sued in the court of law”. But to claim that a deity is the bearer of constitutional rights is a distinct issue, the judge reasoned.
The Supreme Court has struck down a rule that disallowed girls and women in the 10-50 age group from entering the Sabarimala temple in Kerala. Chief Justice Dipak Misra-headed Constitution bench in a 4-1 verdict said the temple rule violated their right to equality and right to worship. The only note of dissent came from the lone woman judge on the bench, Justice Indu Malhotra. “We have no hesitation in saying that such an exclusionary practice violates the right of women to visit and enter a temple to freely practice Hindu religion and to exhibit her devotion towards Lord Ayyappa.
“The fundamental rights guaranteed under Part III of the Constitution are geared towards the recognition of the individual as its basic unit. The individual is the bearer of rights under Part III of the Constitution. The deity may be a juristic person for the purposes of religious law and capable of asserting property rights. However, the deity is not a ‘person’ for the purpose of Part III of the Constitution. The legal fiction which has led to the recognition of a deity as a juristic person cannot be extended to the gamut of rights under Part III of the Constitution,” Justice Chandrachud held.
On the other hand, the exclusion of women from the Sabarimala temple effects both, the religious and civic rights of the individual. The only note of dissent came from the lone woman judge on the bench, Justice Indu Malhotra. “We have no hesitation in saying that such an exclusionary practice violates the right of women to visit and enter a temple to freely practice Hindu religion and to exhibit her devotion towards Lord Ayyappa. The denial of this right to women significantly denudes them of their right to worship,” the court said. Justices AM Khanwilkar, RF Nariman concurred with the CJI.
Justice DY Chandrachud termed the custom as a form of “untouchability” which cannot be allowed under the Constitution. “Article 17 certainly applies to untouchability practices in relation to lower castes, but it will also apply to the systemic humiliation, exclusion and subjugation faced by women.”
“Prejudice against women based on notions of impurity and pollution associated with menstruation is a symbol of exclusion. The social exclusion of women based on menstrual status is a form of untouchability which is an anathema to constitutional values.”
In any event, he said, the practice of excluding women from the temple at Sabarimala is not an essential religious practice. “The court must decline to grant constitutional legitimacy to practices which derogate from the dignity of women and to their entitlement to an equal citizenship.