Judicial Overreach: Supreme Court must pay heed to Sabarimala traditions – K.N. Bhat

Judges vs Sabarimala

K. N. BhatWhen it comes to religious beliefs, the rule is that the judicial inquiry stops at finding out whether such a belief in fact exists—and never to go in to the logic or reason behind it. – K.N. Bhat

Is Sabarimala still a Hindu temple even after the famous verdict of the Supreme Court or is it just a resort? If it is a Hindu temple, only Hindu women of all ages are entitled to pray there as a matter of right. The majority judgment annulling the exclusion of women of a certain age group from temple entry was for enforcing their fundamental rights under Article 25. That judgment, as I understand, did not guarantee entry into Sabarimala to Rehanas and Marys to enable themselves to get in to the Guinness Book of Records. Sabarimala is a Hindu shrine and will continue to be so and despite the judgment, the Devaswom Board can officially and openly restrict the entry to believers only.

In the case of triple talaq, where a Muslim woman—a citizen of India—aggrieved by the practice of talaq, challenged its constitutional validity. The court had to decide the issue; the exclusion of some women from entering Sabarimala shrine based on a tradition of unknown antiquity was not challenged by any woman or any believer; some busy bodies who did not claim to be believers of Lord Ayyappa were the petitioners before the court. Considering the fact that the ancient practice did no harm to society and the possible repercussions and reactions of ruffling a hornet’s nest, a wise course would have been to rule out involvement of any public interest in this case.

Though my introduction to the Constitution of India was through the first edition of D.D. Basu’s Shorter Constitution of India, I have kept pace with the changing texts and revolutionary interpretations that followed—and I venture to say that our Supreme Court is not a proverbial “Hyde Park” open to interlopers to speak on any subject—in addition to indenting on precious judicial time. “Locus” of a petitioner is not just “technical”—it is the starting line; if you foul it you should be out of the race.

Thanks to Justice Indu Malhotra for assuring and demonstrating that doors of courts have been and should be open only for persons aggrieved by the cause in issue—or else the dignity and sanctity of the courts will be lost. The term “aggrieved” may on occasions receive a liberal interpretation. But a petition by a group of young lawyers with no claims for devotion to the temple—in other words “interlopers”—should not have been entertained. The justification for this reasoning is a stunning reality. Justice Malhotra said, “In a pluralistic society comprising of people with diverse faiths, beliefs and traditions, to entertain PILs challenging religious practices followed by any group, sect or denomination, could cause serious damage to the constitutional and secular fabric of this country”.

The other four learned judges on the bench ignored this aspect. In addition, their preoccupation with the high principles of constitutional morality and the like, appears to have made them mistake the matter in issue to be one relating to menstruation—while the real issue was the existence of a religious belief among a large section of Hindus for ages that to a shrine dedicated to a deity conceived as an eternal bachelor, women of sexually active age—10 to 50—should not be allowed entry. Maybe this prohibition was also because of the desire to keep women away from the male devotees who had lived a life of strict celibacy for 41 days before visiting the temple.

When it comes to religious beliefs, the rule is that the judicial inquiry stops at finding out whether such a belief in fact exists—and never to go in to the logic or reason behind it. Let me quote Justice Malhotra again, “The prayers of the petitioners, if acceded to, in its true effect, amounts to exercising powers of judicial review in determining the validity of religious beliefs and practices, which would be outside the ken of the courts. The issue of what constitutes an essential religious practice is for the religious community to decide.”

The learned judge based her conclusion on several precedents, some of them are worth reproducing.

“If this is the belief of the Zoroastrian community, a secular judge is bound to accept that belief—it is not for him to sit in judgment on that belief. He has no right to interfere with the conscience of a donor who makes a gift in favour of what he believes to be the advancement of his religion and the welfare of his community or mankind”.

“Our personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held, it attracts the protection of Article 25, but subject, of course, to the inhibitions contained therein.”

“Article 25 is an article of faith in the Constitution, incorporated in recognition of the principle that the real test of a true democracy is the ability of even an insignificant minority to find its identity under the country’s Constitution. This has to borne in mind in interpreting Article 25….”

“Judicial review of religious practices ought not to be undertaken, as the court cannot impose its morality or rationality with respect to the form 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.”

She proceeded to hold, “In the case of the Sabarimala temple, the manifestation is in the form of a naishtik brahmachari. The belief in a deity, and the form in which he has manifested himself is a fundamental right protected by Article 25(1) of the Constitution.”

What about the rights of the excluded women to pray at Sabarimala? The answer is that not one of them questioned the exclusion—maybe because there are enough temples for them to pray. Or on the realisation that none can claim that she has a right to pray in any temple of her choice on her own terms, ignoring the sentiments of a larger number of other women who may respect the custom of exclusion.

Despite the Supreme Court declaring that women during menstruation can visit temples, the believers will continue to stick to existing customs; despite adultery no longer being an offence, the Seventh Commandment will continue to be respected. – Asian Age, 22 October 2018

» The writer is a senior advocate of the Supreme Court and former additional solicitor-general of India. 

See also


 

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2 Responses

  1. The most sensible suggestion was made by a commentator on another site : the Devaswom Board should be made into a private trust composed of men and women in equal measure and of all castes and ages. Their decisions can then be binding. At any rate people who disagree are free to not subscribe to their recommendations, one way or other.

  2. Kerala Women Protest

    Sabarimala Standoff Shows That ‘White Man’s Burden’ Is Still Being Carried In Post-Colonial India – Pratyasha Rath – Swarajya Magazine – 22 October 2018

    This past month has seen one of the most organic and powerful social movements play out in Kerala. A protest led by women, mobilising devotees of Lord Ayyappa from across states, coalescing on streets and marching peacefully across major towns and cities of Kerala in defence of their faith. In one of the most poignant statements made this week, the tantri of the Sabarimala temple, whose family for generations has been devoted to its service and the deity said that he would rather lock up the temple and hand over the keys to the custodians rather than allow the will of the deity to be negated in his own abode.

    But the opinion on the men and women who have come out in defence of their faith and their traditions has been rather unusual from a certain quarter of people. It is being vehemently articulated that the women who are protesting in Kerala are somehow blinded to their own bigotry and need to be civilised using the iron hand of the court. The assertion is that progressive values need to be thrust down their throats because they are either naive enough or ignorant enough or malicious enough to disregard what is good for them as human beings and as citizens. They need to be taught by people well versed in modern ethos and seeped in progressive values about the right way to worship their deities and maybe even the right deity they need to worship. They need to be taught how to interpret their scriptures, tweak their rituals, reorient their world view because they have missed the bus towards enlightenment. They need to be civilised because that is the burden of people better than them.

    This entire scenario reminds me of Rudyard Kipling and the immense burden of progressiveness that he carried on his back.

    “Take up the White Man’s burden,
    And reap his old reward,
    The blame of those you better
    The hate of those you guard
    The cry of hosts you humor
    (Ah, slowly!) towards the light
    “Why brought he us from bondage,
    Our loved Egyptian light”

    Kipling’s burden has now been transferred to the self-certified progressive crusaders who, instead of getting the gratitude of people for leading them towards the light, are getting their blame and their hate!

    This immense desire to civilise women who are believed to be bereft of agency is just a new manifestation of the old white man’s burden. With an added dose of feminism because some women also need to be taught the multiple ways in which they are discriminated against even though they themselves with full information, deny that discrimination.

    Their huge service of passing on their wisdom to bigoted and marginalised pagans is lost because the protestors too can turn around and answer back. For instance, they tell the women that modern constitutional values give supremacy to individual choice and hence, women should have the choice to enter their temple. But, the tribal woman from Kerala could turn back and answer that Hinduism itself grants them the choice to interpret and practise their own faith. They could exercise their choice and choose from the pantheon of deities, texts, practices, rituals or reject each one of them and still be a part of the collective.

    No, not progressive enough. There is still a burden.

    But this is internalised misogyny, they say. Like how women supported triple talaq and stood against Shah Bano and the mother of all “what-abouts” when it comes to Hinduism, sati. Just because women can make choices, does not mean that choices do not have consequences. Fair enough, the ‘regressive’ woman says, because yes, there are rituals and practices that demean women. There are practices protected by religion which could pauperise women, take away all their economic security, bring them down on their knees, physically harm them, mutilate their genitals, kill them. These are barbaric and the state should consider clamping down on these evils. But how badly does not being allowed into a temple of one deity for a few decades affect you in a similar manner? Is the imminent threat to you, similar?

    The discussion could continue and the argument could progress into, there need be a threat of any kind to demand equality—like how women could demand being allowed into mosques, or freedom from wearing burqas, or to become priests. It is about dignity. The regressive woman surprisingly, still could have an answer. The application of this said or unsaid rule in Sabarimala is not complete at the micro, meso or macro level like it is in all the other cases. For instance, whether it is triple talaq or sati or any kind of personal law, the application of it is absolute. Women are under all conditions, excluded and have no other recourse mechanism left to them. If triple talaq is allowed, there is no way a woman could prevent herself from becoming a victim. If women by decree are kept away from mosques, all women anywhere are at a threat of being thrown out. But, that is not the case for women who are the devotees of Ayyappa. If women of a certain age are kept away from the Sabarimala temple, then at the macro level of being practising Hindus, they can still enter any of the thousands of temples across the world. Including temples, where only women are allowed! At the meso level, if they are just the devotees of Ayyappa, they can enter multiple other Ayyappa temples where he resides in many other forms. And at the micro level, if they just want to enter Sabarimala, they can still do that after they turn 50. There is no logical linkage that shows that the rule will deny any woman even a little bit of that ‘right to pray’ which makes it such a huge feminist cause.

    But No. Not activist enough. The burden remains.

    But, what about caste? Similar opposition was also seen when people of lower castes wanted to enter temples across the country, including Sabarimala. That was also defended citing scriptures and tradition and only a reversal by law could set things right. The heathen woman again has a voice because it comes from the churning she has seen in her community. The discrimination of not allowing lower caste Hindus into temples was a social evil because it excluded men and women of all groups into the temples, almost universally—across temples, across sects, across cults and often without any scriptural base.

    The law came into force only after a strong movement from within the community which saw both social reformers and leaders from the lower castes denounce the practice. People left the fold of Hinduism putting pressure on temples across the country and social demand for change was always there. If there is a similar demand of women not being allowed into temples in a discriminatory manner, gains traction across the country, then there is immense possibility of change from within and also rationale for the state to enforce change. But, discrimination against women in Hindu temples, where the goddess is worshipped in multiple forms is an alien concept and it is an obfuscation equating it with caste.

    No. Not critical enough. The burden remains.

    You think your religion is more important than the Constitution. What is the difference between you and those who want Sharia?

    The difference is that I seek constitutional protection. I do not want a new law.

    No. Not trailblazing enough. The burden remains.

    Is your god that weak that he cannot control his senses?

    No. But he has taken a vow that he cannot be in the company of women in reproductive age and if women enter his abode, his vow will be broken. His vow is central to his character, his essence. If that breaks, the temple will be desecrated. Moreover, it is his abode and it is his will which the devotees should respect. Or are you even a devotee?

    No. Not feminist enough. The burden remains.

    What do you mean by the “will of god”? There is no will of god and only the will of men who claim to represent god.

    Religion is an institution created by men and those who are opposed to organised religion and any form of theism are not stakeholders in determining the will of god. It is a belief and this cause is for those who believe, because a temple is not a secular space. You cannot reason out faith by wishing to see a certifiable will of god.

    No. Not rational enough. The burden remains.

    The essential character of the deity, the diversity of a tantric temple, the uniqueness of rituals can lead to exclusion of certain groups either for some key occasions, days, months or time periods. Exclusion is not discrimination when it does not take away the right of any individual to practise her faith including both the private and the public aspects associated with it. It is not possible to equate it with social evils like sati and triple talaq and female genital mutilation which takes a direct physical and economic toll on women. It is not possible to conflate it with the evil of caste in Hinduism which was almost universally applicable and often without scriptural base. This is not an issue of gender but an issue of religious diversity and the constitutional protection accorded to it.

    No. The burden remains because we know better.

    The white man’s burden will always remain and will continue to manifest in many forms. Just like the white feminists preached about the burden of family to black women, who fell back on their extended families and the larger community for social acceptance.

    But hopefully, the Kiplings of the post-colonial world will face a resistance not just with their efforts at civilising but also with the definitions that they use. It is not possible any more to unquestioningly define who and what is regressive without adequate context. This is especially so without considering the voices of the very people you want to liberate and civilise. The burden is shifting and the women in Kerala need to be thanked for that.

    > Pratyasha Rath is a consultant working in the social development and political
    sector.

    Women protest court ruling in Kerala

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