A Partisan Constitution: Why the law is loaded against the Sabarimala Temple authorities – R. Jagannathan

Supreme Court Justice Dipak Misra

R. Jagannathan“When did anything with a religious dimension have pure ‘rationalism’ as its core? In fact, our Constitution itself hardly passes the test of rationality in the way it framed provisions on religious rights.” – R. Jagannathan

Given the trend of questioning in the Supreme Court, where women activists are fighting a ban on the entry of menstruating women in Sabarimala, it is clear that the temple authorities are fighting a losing battle.

Supreme Court of India in New DelhiOn 11 April, the Supreme Court bench headed by Justice Dipak Misra asked questions that cannot but indicate how the case is going. Among the questions asked: “What right does the temple have to forbid women from entering any part of the temple? Every argument has to meet the test of constitutionality.”

Then: “Can you deny a woman her right to climb Mount Everest? The reasons banning anything must be common for all.”

Or take these questions and observations: “Why this kind of classification for devotees to visit the temple? We are on constitutional principles. Gender discrimination in such matters is untenable. You cannot create corrosion or erosion in constitutional values.”

And, finally: “We will be guided by (a) rational dimension and that is the Constitution. I just believe in the Constitution.”

The last one takes the cake. When did anything with a religious dimension have pure “rationalism” as its core? In fact, our Constitution itself hardly passes the test of rationality in the way it framed provisions on religious rights.

The contrast with the US Constitution is stark. The US Constitution has just 16 words to describe its approach to religious freedom, while we have multiple articles in our tome. The first amendment to the US Constitution, which deals with religious and other freedoms, has this to say:Our constitution has an imbalanced approach to religious issues. In fact, it ties itself in knots by professing one high principle in one place, and then allowing exceptions to this principle in other places when it involves another community.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”

This simple sentence allows religious groups to practice what they preach: this could include the right to discriminate against homosexuals, oppose abortion, or practice polygamy (Mormons) or whatever, as long as an individual claims it is part of his or her religious faith or practice.

India, on the other hand, has elements in the constitution that say contradictory things. One part will say such laws will apply only to Hindus (including Sikhs, etc), and another says some laws will not apply to others. Our constitution is egalitarian in spirit, but discriminatory in many of its provisions.

Thus, civil laws will apply to Hindus, but not minorities.

Thus, you can make laws that discriminate against beef-eating, and still claim you don’t’ discriminate against minorities who want to eat beef.

Thus, you can make laws (like the Right to Education) that are supposed to be applicable to all, but not minority-unaided institutions.

Thus, you can profess the right to religious freedom, but states can also put in laws to hinder it.

This is why the Supreme Court can claim it is following the constitution, even while defeating the spirit of it.

Haji Ali Dargah MumbaiThe real villains are Articles 25, 29 and 30. Article 25 gives the state the right to interfere in how Hindu temples are run, but articles 29 and 30 give minorities the right to run their own institutions according to their own traditions and culture. This is why Sabarimala is a losing battle, but Haji Ali may not be.

Article 25 is about “Freedom of conscience and free profession, practice and propagation of religion.”

It says: “(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.”

This should have given Sabarimala the space to argue that its practices are part of its religious belief, but there is an important “but” in Article 25.

It says: “(2) Nothing in this article shall affect the operation of any existing law or prevent the state from making any law (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.”

Article 25(2)(b) would thus allow the Supreme Court, if not the government, to claim that Sabarimala is an institution of public character and should be “open to all classes and sections of Hindus.”

Given the recent tendency of the Supreme Court to make the law rather than just interpret it, the fact that the Kerala government is on the Sabarimala temple’s side may not matter much.

On the other hand, Article 29 gives minorities the right to protect their culture and institutions. It says, inter alia, that “(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.”

If Sabarimala had not been covered under Article 25(2)(b) which gives the state the right to enforce its own idea of egalitarianism, it could have claimed protection under Article 29. Article 29 negates a part of the ideas in Article 25. Giving minorities a right not enjoyed by a majority is essentially iniquitous, but the Supreme Court may not spend much time discussing this anomaly.

Clearly, the Indian Constitution is a mish-mash of contradictory provisions. It needs to be seriously rewritten.

This is not to say that Sabarimala is right to keep out menstruating women, but we can’t deny that our laws are wonky. – Firstpost, 12 April 2016

» R. Jagannathan is the editorial director of Swarajya Magazine in Mumbai.

Women yatris returning from Sabarimala

See also

4 Responses

  1. Of all the people requiring “azadi” it is the Hindus who need it the most. Even after independence they are stuck with discriminatory laws and unequal treatment. Are there any organizations out there representing the sane Hindu voice which one can join? I am totally fed up of the RSS knee jerk reactions to trivial issues. Hindus don’t control their temples, or their educational institutions. Instead of demanding constitutional reform to make Hindus equal, the BJP is wasting its time arresting total idiots like JNU students who are irrelevant anyway. The problem is that the BJP itself is populated by people of mediocre intelligence and vision. Instead of recruiting people from civil society who have vision and are able to articulate ideas , they have given all the top jobs to their cronies.

  2. Yes, our constitution is not framed to ensure equality to all citizens irrespective of numerous religions. Each religion has got its own rights and privileges except the majority Hindus. CAN WE CALL INDIA A DEMOCRATIC OR SECULAR STATE ?? SHAME ON THE FRAMERS OF COI. We should conduct a fresh freedom struggle to re frame COI to bring equality in rights and privileges. Why SC is silent on Common Civil Code if they are very much particular of equality for women ?? Is SC considering women are only in Hindus ? The ladies in other religions are not women or they don’t require equality ??.

  3. Nehru and Ambedkar must have been aware of the anti-Hindu slant in the constitution they were creating. Why did they let it pass? Where they getting their revenge on the majority community they so despised?

    And where are the hon’ble lady judges in the ‘feminist’ Supreme Court? As Radha Rajan writes: “If the High Courts and Supreme Court want to do fairly by women than let them bring about parity in the number of women judges in the Supreme Court first. This country has placed only six women … in the Supreme Court as judges in 66 years after independence. Lets have equality there first before the courts presume to interfere in Hindu temple practices.”

    The Constitution is not Veda and the hon’ble judges are not competent to decided on ancient temple traditions and practices. They should have the humility to excuse themselves from pronouncing on these issues, and let sensitive religious matters be decided by knowledgeable Hindu pandits and acharyas.

    • This is really serious. Something needs to be done immediately. Supreme Court has no authority to intervene in Temple related matters. Sabarimala or for that matter every religious institution has its own rules which needs to be respected. Let the feminists build their own Temple implement their gender parity rules there. Dare not touch sabarimala. If the supreme Court goes in favor of the liberals, then the Hindus must voice their protest by boycotting worship altogether. Agamic rules are the guiding principles for our temples and not the Constitution.

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