MJN’s article on judgments in Sabarimala and Church cases

Faith versus State

22nd November, 2019

The majority judgment of the Supreme Court in Sabarimala case delivered on 20th
September, 2018 striking down Rule 3(b) of the Kerala Hindu Places of Public Worship
(Authorization of Entry) Rules, 1965 on the ground that it amounts to gender discrimination
and untouchability, while received the applause of the English newspapers, the elite and
the liberals, was taken as an unjust interference with the freedom of belief and conscience
by the overwhelming majority of Lord Ayyappa devotees, particularly by women whose
emancipation the judgment purported to be.

Pilgrimage to the Ayyappa shrine in 2018 meant large scale violence, police
resorting to lathi charge, hundreds of men and women being taken into custody, for, a few
women in the menstruating age group, whose entry to the shrine is banned by the aforesaid
Rule based on custom and belief of the devotees, asserted their right to visit the shrine
claiming that the said judgment is the law of the land and the State Government and its
authorities are duty bound to enforce it. The State Government declared that it is its
constitutional duty to enforce the said judgment.

The Supreme Court delivered yet another judgment, namely, in K.S. Varghese &
Ors. v. Saint Peter’s and Saint Paul’s Syrian Orthodox Church & Ors., (2017) 15 SCC 333, holding
that the spiritual powers of the Patriarch of Antioch, whom millions of faithfuls of the
Patriarch faction of the Syrian Orthodox Church of Kerala consider to be their spiritual
and temporal head, has “reached a vanishing point”, a terminology often used in private
international law, observing that Patriarch is a persona non grata divested of all spiritual
and temporal powers and that the affairs of thousands of Churches in Kerala shall be
governed by a Constitution, which the minority faction owing allegiance to the
Metropolitan has adopted. The scenario thereafter emerged was the Metropolitan faction
seeking execution of the judgment of the Supreme Court by police force. Possession of
the St. Mary Church at Piravom, a Church of more than thousand years old, where the
Metropolitan has only a handful of devotees, was taken by force against wishes of the vast
majority belonging to the Patriarch faction and many devotees, exasperated as they were,
even threatened to commit suicide to prevent the forcible takeover of their Church.
The common man, who is not very familiar with the high sounding words like
constitutional morality, discrimination based on biology etc., is amused. He wanted to
know why, when even women devotees of Lord Ayyappa do not wish to visit the shrine
during their menstruating age, should the Court compel the age old tradition be allowed
to be breached merely because some young lawyers in Delhi, the Young Lawyers’
Association, consider – they having come to know from the articles of Barkha Dutt and
Vir Singhvi – that such an obnoxious, height of male chauvinism and orthodoxy prevails in Kerala. The devotees of Lord Ayyappa wonder how their belief that Lord Ayyappa is a
Naishtika Brahmachari (eternal celibate), who does not wish women of menstruating age
to visit Him, becomes discrimination and untouchability when the believers themselves
consider it to be the ordain of Lord Ayyappa and see no discrimination based on biology
or gender whatsoever. They wonder how come the Court could adjudicate on matters of
faith and if at all the Court could decide whether a particular belief is rational and,
therefore, constitutional and some other belief is not rational and, therefore,
unconstitutional, then would not the very freedom of conscience and faith be
extinguished?

I as a lawyer am in complete agreement with the view of the common man, though
I would like to view it from a jurisprudential point of view, as well. The Court in the
Sabarimala case and the Church cases acted in ignorance of the fundamental principles of
jurisprudence, for, it failed to notice that matters of faith are not justiciable. The reason is
simple. A Court’s function is to find out the truth and, after finding out the truth on a
controversy before it, apply the relevant law and deliver a judgment in favour of the party
in whose favour the truth is in accordance with the law. There can be no two opinions
that faith is not based on any scientifically or rationally ascertainable truth; often it is
contrary to laws of the nature, biology, is blind and nothing but a myth. Christians consider
birth of Jesus Christ a conception of Mary through divine interference and Mary as an
immaculate virgin. Ayyappa devotees consider Lord Ayyappa as the son of two male Gods,
Shiva and Vishnu. By applying science, laws of nature and principles of biology, the said
truth/belief cannot be established; it is in the realm of a myth. Faith is often in the realm
of myth. The Court in holding that denial of entry of women of menstruating age to the
shrine of Lord Ayyappa and also in holding that the spiritual powers of the Patriarch of
Antioch is on the vanishing point has pronounced upon in the province of faith, over
which it has no jurisdiction, nay, it is forbidden. The 2018 judgment in Sabarimala case
and the line of judgments in the Church cases leading to the 2017 judgment in K.S. Varghese
are all rendered void ab initio; they are against the Constitution, in gross infringement of
the freedom of conscience and faith guaranteed by the Constitution. The Court has done
a great disservice to the society, unwittingly though, inasmuch as the said judgments have
led to agony and conflict which no words can adequately describe.