Elementor #2107
Can Majoritarianism Trump Constitutionalism?
The Question posed by Supreme Court in Sabarimala Reference.
The Supreme Court’s question in the Sabarimala reference, “Can majoritarianism beat constitutionalism?” is at the core of Indian democracy. It is a reflection of the constant struggle between popular religious beliefs and the constitutional ideals of equality, liberty and dignity. This came to the forefront in the wake of the Supreme Court’s judgement in the Indian Young Lawyers Association v. State of Kerala case in 2018 which permitted women of all ages to enter the Sabarimala Temple.
In the past women were not allowed to enter the temple, which was believed to be the place where the deity, Lord Ayyappa, was present, as he was believed to be a celibate, and women were not allowed to enter the temple. A five-judge majority which comprised a 4:1 ratio of judges ruled the practice to be against the Constitution, in particular Article 14, which guarantees equality, Article 17 to the effect of the right to life, Article 15, which guarantees a fair trial, and Article 25, which is the right to dignity of life. The Court decided that it was discrimination and was not in keeping with constitutional morality to exclude someone solely on the grounds of their biology.
But the verdict set off a furor in Kerala. Many of the believers protested that this decision was against centuries-old religious practices and was also against the religious denominational autonomy. This public opposition prompted review petitions and ultimately a bigger constitutional reference before a bench of nine judges. In the course of these proceedings, the Court asked the larger question – is it desirable that constitutional rights should be given precedence when a majority of the populace is against such a construction?
Legally, the answer has to be NO. India is not a democracy of majority opinion, it is a constitutional democracy. The Constitution is the highest law and restricts government and public opinion. Dr. B.R. Ambedkar cautioned against the tyranny of majority and laid emphasis on the constitutional morality which should govern the governance. It is precisely the intent of fundamental rights to safeguard individuals and minorities from discrimination, even if it is popularly accepted.
Repeatedly asserted by the Supreme Court, this principle is supplemented by the doctrine of constitutional morality. In such situations, the Court neglected to balance or weigh the values of the constitution over the current social and religious norms such as Navtej Singh Johar v. Union of India and Shayara Bano v. Union of India. The decisions made here show that constitutional rights are not to be sacrificed for the sake of tradition or majority opinion.
Meanwhile, critics say that an over-active judiciary in religious matters could violate religious freedom under Article 25. They argue that the judiciary should have a high degree of caution and respect diversity of religious practices that are present in a pluralistic society. This concern brings about an important issue of the scope of judicial review in the field of religion related matters.
But all customs and practices must be judged in the light of the guarantees of equality and dignity, as required by constitutionalism. The public opinion cannot be used as a reason of exclusion and discrimination when it infringes the fundamental rights. Politics can be shaped by majoritarianism, but it is not allowed to trample on the Constitution.
However, the Sabarimala reference is not only about temple entry. It is a more fundamental issue about the nature of Indian democracy. The Supreme Court’s comments remind us that the will of the majority has importance, but that the Constitution trumps it all the same. The right in a constitutional democracy is not defined by a quantity of people, but with the principles of justice, equality and human dignity.
