'Not Theological Wizards': MP HC Rejects Plea Challenging Bar On Women Performing Abhishek Of Jain Tirthankar Idol [Read Judgment]

The Madhya Pradesh High Court, on Friday, rejected the plea challenging the ban on women devotees who are Digambar Jain to perform Abhishek in respect of idol of the god Bawangajaji, a jain Tirthankar.

If women touch and do Abhishek of idol, it would result in changing the very character/nature of the Tirthankar, which would certainly infringe upon the right of the devotees to practice their religion guaranteed by Article 25(1) of the Constitution, said the bench of Justice SC Sharma and Justice Shailendra Shukla. It added that this practice is being performed since time immemorial by men in respect of idol of Bawangajaji (Tirthankar) only to ensure that the Rules of Brahmcharya are followed.

Aarsh Marg Seva Trust, had filed a public interest litigation, mainly with a prayer to allow women to do abhishek of Bawangaja Tirth without any discrimination.

The bench extensively quoted the observations made in the Sabarimala Judgment and observed that it was dealing with total ban of entry of women, whereas the facts of the present case are altogether distinguishable. There is no restriction on women to enter into the temple and to perform the Pooja, however, as per the essential religious practice, only men are permitted to perform Abhishek and to touch the idol as it is an idol of male Tirthankar, the bench noted.

The practice of performing Jalabhishek is continuing since time immemorial and we have got no right to interfere with the old age religious practice, as prayed by the petitioners, especially in light of the fact that there is no ban in respect of entry of women of any age in the temple. Even in the Terapanth sect temple, they allow women to enter and perform Pooja, however, men are allowed to perform Jal Abhishek after taking bath and after wearing Dhoti and Dupatta. It is an essential religious practice and in no way can be termed as discrimination.

The Courts are certainly not meant to write the religious text, however, they are under an obligation to follow the religious text in the matter of cases dealing with religious dispute and to follow the old practices which are prevalent in religion so long as they do not violate constitutional rights of an individual.
The essential religious practice, which is continuing since time immemorial is a method followed by the devotees for achieving the spiritual upliftment and it is not a practice which has been recently introduced. This Court is not a theological wizard and shall be transgressing its role as a constitutionist authority by interfering with the essential religious practice, which is certainly not at all opposed to public order, morality, health or any other fundamental right. 

Customs and usages forming an essential part of the religion, cannot be overridden

The 'throwing open' to 'all classes and sections of Hindus' was intended to redress caste based prejudices and injustices in society. Article 25(2)(b) cannot be interpreted to mean that customs and usages forming an essential part of the religion, are to be overridden. Article 25(2)(b) would have no application in the present case as there is no ban, but only a limited restriction during the notified period, based on faith, custom and belief, which is being observed since time immemorial.

Courts normally do not delve into issues of religious practices

In a secular polity, issues which are matters of deep religious faith and sentiment, must not ordinarily be interfered with by Courts. The right to practice one's religion is a Fundamental Right guaranteed by Part III of the Constitution, without reference to whether religion or the religious practices are rational or not. Religious practices are Constitutionally protected under Articles 25 and 26(b). Courts normally do not delve into issues of religious practices. In a pluralistic society comprising of people with diverse faiths, beliefs and traditions, to entertain such a writ petition challenging religious practices followed by any group, sect or denomination, would cause serious damage to the Constitutional and secular fabric of this country.

Religious customs cannot be solely tested on principles of rationality

Religious customs and practices cannot be solely tested on the touchstone of Article 14 and the principles of rationality embedded therein. Article 25 specifically provides the equal entitlement of every individual to freely practice their religion. Equal treatment under Article 25 is subject to the essential beliefs and practices of any religion. Equality in matters of religion must be viewed in the context of the worshipers of the same faith. The twin test for determining the validity of a classification under Article 14 is: First, The classification must be founded on an intelligible differentia; and secondly, It must have a rational nexus with the object sought to be achieved by the impugned law. The difficulty lies in applying the tests under Article 14 to religious practices which are also protected as Fundamental Rights under our Constitution. The right to equality claimed by the Petitioners under Article 14 & 15 is directly in conflict with the rights of the worshipers of the shrine in question, which is also a Fundamental Right guaranteed by Articles 25, and 26 of the Constitution. It would compel the Court to undertake judicial review under Article 14 to delineate the rationality of the religious beliefs or practices, which would be outside the ken of the Courts. It is not for the courts to determine which of these practices of a faith are to be struck down, except if they are pernicious, oppressive, or a social evil

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