Columns

In a land (professedly) governed by the teachings of the Gautama Buddha premised on the equality of all human beings, Sinhalese Buddhist children are taught from a very young age that they are the proud inheritors of a rich Theravada religious heritage.

Does the ‘Bhikkhuni Sasana’ violate Article 9?

It seems a tad ironic therefore that this very Theravada tradition has been justified to deny Sri Lanka’s Bhikkhunis identity documentation which is essential for every aspect of collective life, from voting to sitting for an examination. This dispute has resulted in a somewhat peculiar ‘fight’ emerging into the public glare of hearings before the country’s apex court with a Bhikkhuni of the Rangiri Dambulu Chapter at its centre.

Unable to obtain a national identity card (NIC) with the nomenclature of ‘Bhikkhuni,’ she took the denial by the Commissioner General of the Department of Registration of Persons to the Supreme Court, arguing that this amounts to a constitutional violation of the right to equality before the law. The Supreme Court, in a majority opinion this week (E.A.G.R Amarasekera J writing for the Court with Chief Justice M.N.B. Fernando agreeing, M Samyawardhena J dissenting) upheld her challenge.

This petition reflects a long standing struggle of several hundred Sri Lankan Bhikkhunis that they are being discriminated against. That has pitted their pleas against an unyielding stance by Sri Lanka’s three leading Nikayas, namely Malwathu, Asgiri, Amarapura and Ramanna Nikayas. Their objection is that the recognition of Bhikkhunis is ‘contrary to Buddhist Law.’ Indeed, in a perturbing argument, it has been contended that this would violate Article 9 of the Constitution.

Spiritual versus
temporal matters

That constitutional article gives Buddhism the ‘foremost place’ and vests the State with a duty to ‘protect and foster the Buddha Sasana.’ As to how this logic or this rationale that conveys little ‘mettha’ or ‘karuna’ (loving kindness and compassion) can be justified, remains a trifle unclear. In any event, the majority ruled that this constituted a violation of the constitutional right to equal treatment (Article 12(1)), (vide Ven Welimada Dhammadinna Bhikkhuni and Another v Sarath Kumara and others, decision of 16.06. 2025).

The basis on which the Court came to its finding is interesting in several respects. The prima facie egregious violation of the right to equal treatment was pivotal to the majority’s conclusions. ’It is obvious that if the petitioner was a male, he would not have faced these difficulties’ the Bench said. In other words, she had been deprived of being recognized as a Bhikkhuni though in fact, she is a Bhikkhuni.

Before Court, it was accepted by all parties that the Bhikkhuni Sasanaya existed in Sri Lanka from the time of Sangamiththa Maha Therani which then underwent a series of calamities, dying out by the time of the Polonnaruwa Kingdom and revived in 1998 subsequent to which, ordainments of Bhikkhunis were conducted regularly. The petitioner was ordained as a Bhikkhuni by the Rangiri Dambulu Chapter of which the second petitioner was its head.

Ordination of Bhikkhunis is not a recent development

For the Departments of Registration of Persons and Buddhist Affairs respectively, the objections concentrated on the fact that despite Sri Lanka having 31 ‘Buddhist Chapters’ it is the Mahanayake Theros of the Malwathu, Asgiri, Amarapura and Ramanna Nikayas who are ‘the final arbiters’ and they have the ‘authority over the discipline of Buddhist Monks.’ In a context where the main Nikayas informed that they are objecting to identity cards issued to Bhikkhunis, a question was raised as to whether a Bhikkhuni tradition exists at all.

In any event, this is a ‘purely ecclesiastical matter’ into which the Court has no jurisdiction to intervene, the respondents insisted. Responding to this, the majority pertinently asked, if the Mahanayake Theros of the main Nikayas had disciplinary control over the Chapters which are affiliated with one or the other of the Nikayas, why was that control not exercised over the Rangiri Dambulu Chapter to forthwith stop the ordination of Bhikkhunis? Inaction had  been evidenced for close to 15 years in this regard.

As is relevantly asked, this can only imply one of two reasons; one, that such control could not be exercised or two, that it was not thought necessary to do so. Further, identity cards with the ‘Bhikkhuni’ nomenclature had been issued previously and there is no legal barrier prohibiting the use of the term Bhikkhuni. ‘When there is de facto recognition…it is reasonable and legitimate to expect that she would receive the same treatment for her application’ the majority observed.

Majority versus the dissent

The Bench conceded that ‘matters pertaining to Ordainment and the Rules applicable thereto are not questions of the general law but within the expertise and province of religious leaders’ and that, the Court ‘should not decide ecclesiastical matters.’ However, the constitutional question was whether the true identity of the 1st Petitioner had been denied by the Commissioner General of the Department of Registration of Persons who had tried to replace the term ‘Bhikkhuni’ with that of a ‘Sil Matha’ which was not factually correct.

This was not in accordance with her right to engage in religious practices under Article 14(1)(e) of the Constitution. Thus, the denial ‘caused discrimination as it takes sides with the views of the leaders of certain Chapters against the Rangiri Dambulu Chapter’ it was ruled. ‘Opinions’  expressed by the Maha Nikayas that the Bhikkhuni Sasana cannot be revived in Sri Lanka ‘where a great majority follow Theravada Buddhism’ was observed to be ‘only an opinion of some sectors…it is clear that there are different opinions…’

That said, the majority judges entered into a caveat, namely that ‘this is not a matter to be decided by Court.’  The dissenting opinion meanwhile found no fault with the verification process carried out by the Commissioner General of the Department of Registration of Persons with the Commissioner General of Buddhist Affairs under Sections 39 and 39A of the Registration of Persons Act. The opinion adverted to the fact that the Maha Nikayas have adopted the position that the ‘Bhikkhuni Sasana does not exist in Sri Lanka.’

A significant step in
a disconcerting debate

If so, it is remarked that the use of the term Bhikkhuni in NICs ‘would be false, misleading and contrary to the provisions of the Registration of Persons Act’ with the ‘recognition of Bhikkhunis’ not being a matter for judicial intervention. The fact that the Maha Nikayas objected to the petitioner’s challenge is stressed. But objectively assessed for the purpose of this analysis, does that suffice?

Why, as the majority asked, did the said Maha Nikayas not proceed to exercise disciplinary control over the imprudence of the Rangiri Chapter, (if imprudence this was), for an unconscionable period of time as it ordained Bhikkhunis? This could only mean that, ‘the Rangiri Dambulu Chapter is independent to take decisions on matters.’

In sum, this decision (the majority as well as the dissent) is a significant development in a rather disconcerting dispute on the pervasive discrimination meted out to Sri Lanka’s Bhikkhuni Sasanaya. As an ecclesiastical scholar observed caustically to me a few days ago, ‘is there nothing else to be ‘fighting’ about in this country, quite apart from the civil and ethnic conflicts that have divided communities for decades?’

That is all too true.