MUSLIM WIVES HAVE been finally freed from the Damocles’ sword of Triple Talaq, homosexual men and lesbian women are finally free to express their sexuality without fearing arrest, and adulterers can make the choice to commit such acts without being penalised by the state. On October 3rd, 2018, a 4-1 majority of a Constitution Bench of India’s Supreme Court held that Sabarimala Temple’s practice of barring the entry of women between the ages of 10-50 was unconstitutional. The temple authorities had justified the exclusion of a sub-set of women from the temple as being an ancient custom. Section 3 of the 1965 Kerala Hindu Places of Worship (Authorisation of Entry Act) requires that places of public worship be open to all sections and classes of Hindus, subject to special rules for religious denominations. Rule 3(b), however, provides for the exclusion of ‘women at such time during which they are not by custom and usage allowed to enter a place of public worship’. Translation: all women of menstruating age could be (and were) debarred from entering the Ayyappan temple in Sabarimala. Opponents of the practice highlighted other constitutional provisions such as Article 25(1) (freedom of worship), Article 26 (freedom of religious denominations to regulate their own practices), Articles 14 and 15(1) (equality and non-discrimination), and Article 17 (banning Untouchability).
The majority judgment said that women as individuals had the right to freedom of worship (Article 25) and barring their entry constituted a contravention of that right, and that the Sabarimala practice did not constitute an essential practice of religion, and even if it was (as Justice Khanwilkar said), it did not matter because Sabarimala was not a separate religious denomination from Hinduism.
The sole minority judgment authored by Justice Indu Malhotra disagreed on the following grounds: that the equality provision (Article 14) did not override the right to religious freedom (Article 25); and that ‘constitutional morality in a secular polity would imply the harmonisation of the Fundamental Rights, which included the right of every individual, religious denomination, or sect, to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practice is rational or logical’.
These recent judgments of India’s Supreme Court, particularly in the arena of religious freedom, have evoked hails of a ‘progressive court’ among liberals, anger among those who value ‘tradition’ and ‘religious commandments’, and disquiet among those who wonder if a balance between conflicting freedoms has indeed been achieved, and whether courts ought to be involved in the fray. The questions evoked by these judgments are threefold: How can traditional values cohere with the concept of citizenship?; To what extent can a pluralist democratic polity reconcile tradition and religion with the concept of equality without losing the diversity?; And whether the state ought to play the primary role, and if so, which institution of the state ought to do so in mediating these conflicts?
While much has been written about the second and third questions, I want to focus primarily on the part tradition plays in creating a community, and how that sense of belonging to a group or a community is an important feature of our citizenship. I will discuss this issue in the context of the Sabarimala judgment. Belonging, as British sociologists like Nira Yuval- Davis and Mike Savage point out, is not an essential or purely discursive concept, but is socially constructed, embedded and processual; people reflexively assess whether they feel comfortable in a given place in relation to their life and to their positions and roles. For instance, you choose to embark on Hajj or any other pilgrimage (for example, to Sabarimala), and choose to be part of a community of believers embarking on that ritual.
The concept of ‘essential practices of religion’ was coined because Indian courts had to make a distinction between matters of religion and matters of secular activity amenable to state regulation
Let’s adopt the dictionary definition of ‘tradition’: an inherited, established or customary pattern of thought, action or behaviour (such as a religious practice or a social custom). In 1983, British historians Eric Hobsbawm and Terence Ranger edited a volume titled The Invention of Tradition in which the contributors explored examples of invented traditions in Scotland, colonial Africa, the pageantry of the monarchy in Great Britain and Victorian India, and in 20th century Europe. Tradition, Hobsbawm and Ranger point out, is unlike custom, which has to be flexible. Tradition imposes invariance— the bugles that signal the end of ‘Beating the Retreat’ on Republic Day cannot be replaced by drums. Unlike convention, which displays a habit or routine, tradition has a significant ritual or symbolic function.
Why invent tradition? It is an attempt to structure and keep unchanged some parts of social life because of the constant change and innovations of the modern world, they say. Hobsbawm and Ranger find three overlapping types of reasons: a) those establishing or symbolising social cohesion of groups; b) those establishing or legitimising institutions (pomp and pageantry); c) and those whose main purpose was socialisation, the inculcation of beliefs, value systems and conventions of behaviour. Tradition creates a sense of belonging based on shared notions with a group. If Hobsbawm and Ranger are right that tradition is invented in an attempt to create social cohesion, then changing tradition, as it was done in the Sabarimala judgment, comes at a high price.
One might argue that the judgment will trigger a new invented tradition, and that this one would be more inclusive (of women between the ages of 10 to 50) and create a larger community. But should that be at the cost of diversity? We may all want textured citizenship that promotes openness, tolerance and diversity, but we have to ask ourselves which agency—individual citizens, the state, political parties and civil society organisations— ought to be the channel to create these textures.
JUSTICE INDU MALHOTRA’S dissent in the Sabarimala case highlights the dissension among judges on what kind of balance ought to be struck between the principles of equality and non-discrimination on one hand, and the protection of freedom of faith, belief and worship guaranteed by Articles 25 and 26 on the other. The disquiet pertains to whether and how the judiciary ought to deal with traditions created by groups when such conduct conflicts with values of equality of access of an individual. The Sabarimala pilgrimage is like a Hajj for devout men who conform to strict rules of behaviour (fasting for 41 days, sleeping on the floor, wearing a mala and black clothes, and eschewing material temptations, etcetera) prior to their trek to the temple of Lord Ayyappan, a celibate deity. If Hobsbawm is right in saying that traditions are invented, if tradition creates a sense of belonging, and if to belong and be part of a group also means to exclude other groups, and if in our daily lives we purposefully elect to undertake particular activities that create such communities (and exclude others from that community), then surely it is not up to a set of judges to decide the contours of the patchwork. Surely it ought to be a series of discussions, stand-offs and debates in civil society that should determine whether or not a ritual or a practice ought to exist. Even if the answer arrived is that an exclusionary practice ought to continue, the struggle to change the response ought to be conducted in the non-institutional arenas.
Or should it be the court, paraphrasing Lenin’s ‘party as the vanguard of the proletariat’, which ought to be the flag bearer, the drawer of a line in the sand? This is the question to which the majority and minority opinions in the Sabarimala case have different answers, and both use the concept of ‘constitutional morality’ to make those arguments, albeit in different ways. Justice Chandrachud (concurring with the majority ruling) links the exclusion of women from the pilgrimage with the larger issue of patriarchy as a social institution that needs to be transformed in order for women (like Dalits, and here a link is made with untouchability and the Constitution’s mandate to deliver social justice) to acquire the ability to access public spaces (the temple being one such space).
As philosopher Roger Scruton so aptly put it, ‘By citizenship I mean a specific form of communal life, which is active, not passive, towards the business of government. The citizen participates in government and does not just submit to it. Although citizens recognize natural law as a moral limit, they accept that they make laws for themselves. They are not just subjects: they appoint the sovereign power and are in a sense parts of that sovereign power, bound to it by a quasi-contract which is also an existential tie. The arrangement is not necessarily democratic, but is rather founded on a relation of mutual accountability.’
The legislature and the judiciary must respect a citizen’s need and ability to create a patchwork of belonging and unbelonging, as long as these creations do not unduly harm the rights of other citizens
This sense of mutual accountability means that the state—that is, the legislature and the judiciary—must respect a citizen’s need and ability to create a patchwork of belonging and unbelonging, as long as these creations do not unduly harm the rights of other citizens. Therein lies the rub.
In India, the constitutional diktat to the state to create conditions for social justice has meant that the judiciary has gotten involved in assessing whether a religious practice coheres with or contradicts social justice. The concept of ‘essential practices of religion’ was coined because Indian courts had to make a distinction between matters of religion and matters of secular activity amenable to state regulation. Here, we see the practical implications of the twin constitutional injunctions on the Indian state. This was to undertake ameliorative actions to address historical inequities meted out to Scheduled Castes among Hindus and to Scheduled Tribes while pursuing a vision of inter-religious bonhomie through the guarantee of religious freedom and secularism. The fulfilment of social justice meant that the state had to answer legal challenges to its intervention in reforming the religious practices of Hindus such as allowing entry of the lowest castes into temples and abolishing untouchability. The fulfilment of inter-religious bonhomie called for caution in dealing with the country’s large Muslim minority who remained in India after the Partition, and took the form of non-intervention in the religious practices of Muslims and Christians.
Analysis of case law reveals that the concept of ‘essential practices’ crops up in courts on issues where the state has to regulate the secular functions of a religious group (applies to all religions), or when the state has to undertake social reform among Hindus, or when a religious practice is at odds with a constitutional directive to the state. What’s ‘essential’ in relation to Hindu practices such as untouchability and temple entry that contravened a constitutional command was treated differently (that is, state interventions were allowed) by courts than it was with Muslim practices such as excommunication that did not contravene a constitutional command.
The wording of the majority opinions in these recent judgments on decriminalising homosexuality and adultery, ending the practice of divorce by Triple Talaq among Muslims and ending gender discrimination suggests that judges are trying to create a just and equal order for individual citizens (liberty, equality and fraternity) by removing the archaic practices of discrimination in group activities. Well, is that really up to the courts? There seems to be some dissension among judges too on this issue. The majority ruling said that Triple Talaq was antithetical to Quranic practices while the minority one said Parliament should pass that law, not courts. Recently, the Bombay High Court said that women could not be barred from entering the sanctum sanctorum of a Shani temple, a practice that has a 400-year-old footprint. This was after 400 women activists tried to enter the core shrine area and were stopped, and two activists filed a Public Interest Litigation. The same Shani Shingnapur temple in Ahmednagar had to allow women to enter the temple premises in 2011 (women were barred before that from taking even a step inside) after rationalists carried out a mass awareness campaign. It is this kind of dialogue and compromise that I am alluding to—one where state institutions play little or no role.
With the expansion of deliberative spaces in an age of high connectivity and social networks, and a more literate and connected citizenry, state institutions such as the judiciary and Parliament ought to step back and allow the concerned groups to challenge and deliberate with one another on such issues in these spaces. Otherwise, we risk creating an anodyne and sterile citizenship bereft of our choices on belonging or not belonging to a tradition and of our ability to transform social practices in association or in dialogue with our fellow citizens without necessarily involving the state.