3 years


Sabarimala: A Matter of Faith

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Why the dissenting judgment is right

THERE IS SOMETHING about Kerala and its temples that seem to attract controversy. Historically, the state served as a political laboratory during the 1920s and 1930s, when temple entry protests became part of the freedom struggle. At that time, the rulers of the state, the colonial authorities and the traditional managers of temples were on one side, pitted against reformers.

After Independence, this equation changed drastically: the new rulers of the country got down to controlling religious institutions in the name of continuing reforms. But in essence, they managed to acquire a stranglehold over these institutions through a complex web of laws that greatly limited the scope for what traditional authorities could do. Before Independence, governments had to heed religious sentiment; after 1947, a neat reversal took place. Along with these changes, courts in the country through a slew of judgments deepened this process.

Last week, the last bastion of traditionalism in the state—the Sabarimala Temple—fell to this modernising drive. In a far-reaching judgment, the Supreme Court allowed the entry of women between the age of 10 and 50, which was prohibited earlier.

Legally, it appears to be a simple matter of discrimination and exclusion. Women between the ages of 10 and 50 are not allowed to enter the Sabarimala temple. The exclusion is not absolute: only women in that age bracket are not allowed. In terms of faith, the belief is that Lord Ayyappa, a strict bachelor, does not want to be distracted by the presence of women. Behind this faith—and not the practice of exclusion—lies an elaborate mythology that is at the heart of the legend of the deity of Sabarimala. Legally, this is given effect by Rule 3(b) of the Rules that operationalise the Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965.

The Supreme Court in the Indian Young Lawyers Association & Ors vs The State of Kerala case has held that the exclusionary practice at the temple by virtue of that Rule 3(b) of 1965 violates the right of Hindu women to practise their religion. The majority judgment—delivered in three concurring but separate parts by Chief Justice of India Dipak Misra, Justice AM Khanwilkar, Justice RF Nariman, and Justice DY Chandrachud—outlawed the practice at Sabarimala temple. Justice Indu Malhotra—the lone dissenting judge—came out strongly in favour of traditional practices. Her judgment casts a deep look at the nature of judicial interventions in religious matters.

What the court ended up doing was in part along expected lines. The practice of not allowing women of a certain age into the temple was put to what is called an ‘essentiality test’, whereby a practice is tested for whether it among the essential practices of a religion. If it is not, it is ordered to be discarded. In this case, not allowing women in the temple was held as not essential to Hinduism. More importantly, the judgment contrasted Article 25—which allows freedom of religion, a right available to individuals —with Article 26, which gives religious denominations the right to establish their own institutions and manage their affairs. In essence, Article 26 is a ‘group right’, while Article 25 is an ‘individual right’. The majority judgment upsets the balance in favour of Article 25 through an elaborate chain of reasoning. There were other, added, interpretational novelties. In his judgment, Justice Chandrachud noted that, ‘The social exclusion of women based on menstrual status is a form of untouchability which an anathema to Constitutional values. Notions of ‘purity and pollution’ which stigmatize individuals have no place in the Constitutional order.’

In contrast, Justice Malhotra’s dissent elaborated upon issues such as applicability of Article 14 (equality before law) and Article 15 (discrimination on the grounds of religion, race, caste, sex and place of birth) to religious matters. Her interpretation was strikingly ‘originalist’ in understanding these rights. In her interpretation, she restores the balance of Article 26, which the majority virtually discarded in favour of Article 25.

The judgment is likely to lead to further polarisation between ‘liberals’ and defenders of tradition. Ideally, social changes of this magnitude should be made by governments backed by appropriate legislation. But in this case, the Kerala government vacillated. In its original affidavit, it was sympathetic to the demand for allowing women to the temple but pleaded helplessness in light of a Kerala High Court judgment. Later, it filed an affidavit where it said it could not/did not want to do anything drastic and pleaded that the court order the formation of a commission comprising scholars of Hinduism who would study the matter and give a proper set of recommendations to the government. During the proceedings, the state government again reverted to its position of sympathy and inability that it had originally cited in its affidavit. It won’t be surprising if these changes correlate with changes in political circumstances in the state. The net result was that doors were opened for judicial interpretation and intervention in a sensitive religious matter.

In recent years, scholars, activists and intellectuals alike have scoffed at the notion that ‘Hinduism is under siege’. At a charitable level, the claim is dismissed with the aid of numbers: how can a religion, professed and practised by over four-fifths of India’s population be under threat? The preponderance of believers alone is sufficient for the survival and thriving of the religion. Less charitably, this siege mentality is claimed to be a symptom of Hindu communalism. Hindus, it is claimed, want to constrain (or even suppress) minority religions and hence even a whiff of freedom or any sign of ‘equality’ among religions is considered a loss for Hinduism. In effect, this group holds that, India is caught in a religious zero-sum game.

After the judgment in the Sabarimala case, can this opinion be held earnestly? Here is a group of gender rights activists ‘working in and around the State of Punjab’ that has managed to strike a blow at a practice followed in a temple in Kerala without actually being affected by the outcome. In contrast, a large group of women in Kerala—actually affected by the practice—are on the roads protesting the judgment. A more incongruous example that pits a large group that actually follows the religion and a minuscule one, unaffected in every sense, will be hard to find.

The judgment adds another layer of complexity in the jurisprudence of religion in India, a point that Justice Malhotra appreciated when she noted that ‘Judicial review of religious practices ought not to be undertaken as the court cannot impose its morality or rationality with respect to the forms of worship of a deity. Doing so would negate the freedom to practice one’s religion according to one’s faith and beliefs. It would amount to rationalising religion, faith and beliefs, which is outside the ken of courts.’ It is possible that this claim will be held up to say that all religions should be allowed to practise and interpret their practices internally without any interference from the judiciary, the executive or the legislature. In sum, it is an eminently ‘secular’ way to look the landscape of religious practices. It is also possible that a secular-minded person may argue that practices such as Triple Talaq fall in the ambit of this claim. Ergo: each to his own.

That, however, would be facile. In certain key instances—essential for creating a feeling of oneness and overcoming a tendency to form ‘religious enclaves’—the Constitution itself offers remedies. For example, Article 44 provides for the creation of a Uniform Civil Code. But activating provisions like that require political will. In a country with a fractured polity that is as good as a dead letter. A piecemeal and half-hearted reform has been attempted in the Triple Talaq matter after a judicial decision. In effect, it preserves the core of the demand by minorities to leave practices they claim as essential to their faith untouched. It will be a rare court that will subject such contentious matters to an essentiality test.

There is, however, no such bar on Hindu practices, as the Sabarimala case demonstrates. Here, the definitions, interpretations and interventions take an expansive role. But it comes at a cost: the destruction of tradition. Of all the religions practised in India, Hinduism is the most diverse. Each region—even sub-region— has its own deities and beliefs and practices around them. This is natural in a religion that claims to be guided by millions of gods and goddesses. If all these practices are subjected to essentiality tests—one of the most common tools used by courts when religious matters come before them—then virtually all encrustations and accretions over the decades, centuries and millennia could be scraped away in an effort to identify the religion’s ‘essential practices’. If such an exercise is taken to its logical conclusion, there will conceivably be little or nothing left. One could build four walls with a lofty top, install a deity, and carry out practices by a checklist. That may fulfil the criteria of ‘essential practices’, but something far more precious would disappear forever.

In this quest for essential criteria, Hinduism stands out with distinct disadvantages as compared with more organised—and centralised—religions. Politically, of course, it leads to mass mobilisations which are then claimed to threaten secularism, turning the wheel full from where the debate began.

It is here that Justice Malhotra’s dissent comes out as a shining beam of light in an otherwise cloudy horizon.