By removing the bar on women in the 10-50 age group entering the shrine of Lord Ayyappa in Kerala, the 4-1ruling of a five-member bench of the Supreme Court has advanced gender equality in yet another sphere of public life in India. This should have been accorded an unqualified welcome. But the majority judgment also sets up a clash between the fundamental right to equality contained in Articles 14 and 15 of the Constitution and the right to follow any religion and set up institutions for the purpose, contained in Articles 25 and 26. This is fraught in India’s context of extreme diversity and complex possibilities of inter- and intra-community schism. The court should, in all probability, rethink its practice of determining the essential or integral nature of a religious custom and stick to interpreting whether any custom, essential or not, conforms to the Constitution or not.

By deciding to determine whether a particular practice or custom is essential or integral to a religion, the court leaves the rational world of laws and constitutional rights and enters into the realm of theology.

Whether any custom or practice falls foul of the fundamental rights guaranteed by the Constitution is decidedly a matter for the court to determine, and strike down, if it does. So what, if some religious authority, say, Manu, the Hindu law giver, says that the varna system that celebrates the Brahmin as the lord of all creation and places the rest at his service is an essential feature of Hinduism? It violates the right to equality and has no place in the Republic of India. The dissenting ruling by Justice Indu Malhotra rests on the assumption that the followers of Ayyappa constitute a separate denomination from the general run of Hinduism: even if excluding women of a specific age group is not integral to Hinduism, it could be essential to the denomination. This is a slippery slope.

Religious reform in matters that positively affect life and liberty does call for judicial intervention. In other cases, internal pressure would secure reform with less of a backlash than when the pace is forced by the law. The court is no substitute for social reform movements.