The Sabarimala Temple II: Arghya Sengupta

 

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I have closely followed Three Rhodes Scholars for 13 Years.

  1. Arghya Sengupta.
  2. V. Niranjan.
  3. Gautam Bhatia.

I was aware of Arghya Sengupta, personally, even before I had entered the portals of NLSIU. There is no comparison of him with Gautam Bhatia [An Idiotic Savant]. Let us leave aside V. Niranjan, for now. I have written on him previously.

Mr. Sengupta’s words on The Sabarimala Temple Judgment are brilliant, as his words usually are. Thankfully, he does not waste his time buying Twitter Followers and praising his own self, directly or otherwise. I am glad that one of the Lawyer Voices, that I respect thoroughly, has had the courage to point out Justice Chandrachud’s error.

Here are the brilliant words:

“That there is something deeply iniquitous about not allowing menstruating women to enter Sabarimala Temple to pray to Lord Ayyappa is a platitude. So is not allowing women priests to officiate in the Church, keeping widows in shelter homes secluded from the world and refusing women entry into mosques. When framed as pure moral questions, any right-thinking individual can only affirm their fundamental wrongness.

But Courts of Law are not moral guardians of society. Quite to the contrary, they are expected to judiciously determine fundamental questions on the basis of the Constitution. Framed as a constitutional question, not allowing menstruating women to enter Sabarimala Temple presents a conflict between the scope and extent of an individual right to pray and a community right to manage its own affairs of religion. It is a clash of competing autonomies where Judges must balance the claims made on the basis of what the Constitution demands.

Unfortunately, the Majority Judgments of Chief Justice Misra and Justice Nariman in The Sabarimala Case deftly skirt the balancing question. By refusing to hold the worshippers of Lord Ayyappa as a ‘religious denomination’ they deny the existence of a group right in the first place.

By holding that Ayyappans do not have a distinct belief, a common entity, a common name and do not exclude persons of other faiths from the Sabarimala temple, they are disentitled to any group right to manage their own affairs. This is flawed on two counts – first, it ignores the text of the Constitution which vests such a right not only in religious denominations but sections thereof. The intention of the Constitution to protect religious freedoms of groups, sects and sub-sects, no matter how small, is unarguable.

Second, if the tests for determining a religious denomination are to be applied dogmatically as they have been in this case, the Court has unwittingly pushed a sterile and exclusionary version of Hinduism that has little basis in Hindu texts. Exclusion of other faiths, streamlined organization and dogmatic pathways to achieving salvation are alien to Hindu scripture. Constitutional doctrine cannot emerge in a vacuum and be applied so pedantically.

More troubling is the short shrift given to the letter and spirit of the Constitution in the concurring opinion of Justice Chandrachud. While as a matter of law, like the other majority opinions, he denies the status of a religious denomination to the Ayyappans, unlike the others, he goes further and presents an eloquent, albeit gratuitous reading of the Constitution to justify his position.

The fulcrum of Justice Chandrachud’s view is that “the founding faith on which the Constitution is based is the belief that it is in the dignity of each individual that the pursuit of happiness is founded.” This is a laudable proposition but one that is certainly not evident from reading the Indian Constitution, let alone capable of being its founding faith.

At a philosophical level, the pursuit of individual happiness is, at best, an incidental goal for our Constitution to aspire to. It has no basis in text, doctrine or debates of our framers. Our philosophical traditions highlight the dissolution of the self rather than its assertion, as Justice Chandrachud has done. Importing an evocative Jeffersonian phrase and making it the founding faith of our Constitution makes for terrific reading but poor reasoning.

A reading of our Constitution demonstrates that different provisions of the Constitution serve different but equally significant objectives – liberty, equality, fraternity, diversity and so on. Equally, the Constitution speaks of duties of individuals and responsibility of the State to distribute resources to serve the common good. Limiting the breadth of the Constitution to a single virtue – dignity – is an instance of uni-dimensional holism, an entirely discredited method of constitutional interpretation.

By failing to recognise the multi-dimensional moral outlook of the Constitution, Justice Chandrachud has made the majestic Indian Constitution look like a pale replica of the American one. The Indian Constitution is not just a charter of individual dignity. It is a recognition of India’s natural plurality, a dream of a humane state that strives towards creating a more equal society, a prudent practical assessment of where the Writ of the State should stop, and an embodiment of the vastness of our civilizational ethos. Each of these objectives is possible when there is dharma – as is inscribed in the logo of the Supreme Court, ‘yato dharma tato jaya’; where there is dharma, there is victory. If the Constitution can at all be said to have a founding faith, this is it.

Questionable fidelity to the text of the Constitution combined with importing alien concepts and giving them an exalted status in the constitutional scheme is a fraught approach for the Supreme Court to adopt when confronted with contested moral questions. It is beside the point whether the Court, all things considered, reached the right answer or not. Its institutional legitimacy can weather immediate protests from those who think the Court erred on facts. But it is the duty of the Court to not only faithfully interpret the Constitution of India but also interpret it for India. The damage in not doing so is likely to be more far-reaching.”

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Arghya Sengupta