Sabarimala and the US Religious Freedom Restoration Act – Anuraag Saxena

Sabarimala Pilgrimage

Anuraag SaxenaThe right to religious belief has been held sacrosanct, and has been protected by institutions globally. Governments have acknowledged that protecting national and civilisational identity is part of their core responsibility. – Anuraag Saxena

In 1993, US President Bill Clinton signed the Religious Freedom Restoration Act. This Act overturned a 1990 Supreme Court ruling that validated the restriction of religious practices. In short, the head-of-state overruled the Supreme Court and upheld a religious [denomination’s] right to their traditions.

In 2006, Nadia Eweida, a Christian employee of British Airways, was asked to cover up the crucifix on her necklace. When she refused to cover it up, or shift to a back office job that would allow her to brandish it, British Airways sent her home. Multiple legal escalations later, the European Court for Human Rights ruled in her favour; essentially classifying the right to religious beliefs as a human right.

The right to religious belief has been held sacrosanct, and has been protected by institutions globally. Governments have acknowledged, in more than words, that protecting national and civilisational identity is part of their core responsibility.

Sabarimala, stolen Gods, and lost pride

The recent Sabarimala crisis has shed much needed sunlight to the stark contrast with which India handles its traditions and heritage. Let’s draw a parallel to a cause I understand more closely—that of bringing back India’s temple murtis (images) and stolen heritage.

On the one hand Prime Minister Narendra Modi has shown conviction in personally receiving our heritage back from four nations (the US, Canada, Germany and Australia). On the other hand, most of the 200 objects that were offered to him by the US (in June 2016) are yet to come back home. On the one hand we build a huge murti of Sardar Patel (and rightly so); but ignore centuries-old murtis that should be going back to their temples (incidentally, Jordan, with just 2% of India’s GDP has a dedicated agency for heritage recovery).

Sadly, while some female devotees do not have access to Sabarimala; none of the citizens have access to thousands of their murtis and heritage that languish in foreign warehouses. Shouldn’t that deprival offend us as well?

In both these cases, and in many others, our right to pride (in our religious-tradition and heritage) has been torn away. In both these cases, the right to civilisational continuity has been unceremoniously plundered. And that is the core of the issue, what is a nation or a civilisation without the most critical idea, that of continuity?

Selective application and amnesia

I would be factually amiss to call this a blanket apathy. Political and national leadership has, of course, jumped to action in the past. Who could forget the Shah Bano case where the then Prime Minister forced an immediate ordinance, to overrule a court judgement that awarded a frail, old woman her right to dignity? Recent ordinances though have hovered around all other areas—sports, healthcare, bankruptcy provisions, etc—but have stayed timorously away from subjects like religion, tradition and civilisational identity.

Lost opportunity

Someone once said, India has “a problem for every solution”. The silent treatment towards issues of civilisational continuity just adds to the scrap yard of lost opportunities.

What the government could have achieved—by focusing on Sabarimala, reclaiming heritage—is critical. A much needed act in parliament or ordinance could have been:

a) An opportunity to show alignment with the will of the people.

b) An opportunity to strengthen civilisational identity and nationalistic pride.

c) An opportunity to show geo-political strength to the world.

Imagine the grandness of the success if India were to bring back hundreds of murtis and heritage from foreign lands? (Which, in fairness, might happen soon.)

Imagine these murtis/objects going back to their temples, churches, and gurudwaras; bringing back joy and pride that the community had lost.

Imagine if these places of worship were allowed to be run resplendent in their full glory, exactly the way they were meant to be.

Most importantly, imagine a “Religious Freedom Restoration Ordinance, 2018” that would not just be equitable socially, but statesmanlike and politically prudent.

The power of God

Referring to the Religious Freedom Restoration Act in the US, President Bill Clinton said, “The power of God is such that even in the legislative process miracles can happen.”

Here is hoping that PM Narendra Modi comes up with one such miracle. – Sunday Guardian Live, 21 October 2018

» Anuraag Saxena is based in Singapore and leads the India Pride Project. He has been featured/published in BBC, Washington Post, Economic Times, Times of India, Sunday Guardian, Doordarshan, Man’s World, Swarajya, DailyO, and SPAN.

Anuraag Saxena and Vijay Kumar


 

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3 Responses

  1. Kerala Chief Minster Pinarayi Vijayan (R) along with Travancore Devaswom Chairman and ex-CPM MLA A Padmakumar (L)

    Communist Bravado Over? ‘Will Not Interfere In Sabarimala Customs’, Says Travancore Devaswom Board Post Kerala High Court Rap – Swarajya Staff – November 6, 2018

    After the Communist government in Kerala was slammed by the Kerala High Court for its undue interference in the daily affairs of Sabarimala temple, the temple administrator Travancore Devaswom board Chairman A Padmakumar on Tuesday (6 November) assured that the government would stay away from the temple affairs, Mathrubhumi reported.

    No one from outside would be allowed to interfere in Sabarimala rituals and customs, said the ex-CPM legislator. The Devaswom board manages the temple activities. Rituals starting from opening the ‘nada’ (Sanatorium door) till closing it with the song ‘Harivarasanam’, everything works by the ‘Padithala Vyavastha’(religious customs) he said.

    Earlier on Monday (5 November) the High Court of Kerala had come down heavily on the LDF government’s undue interference in Sabarimala’s religious affairs and asked it restrict itself on providing appropriate security.

    A Padmakumar, though a CPM nominee has been under criticism from the ruling party and Chief Minister Pinarayi Vijayan for siding with the devotee’s cause and taking a stance that is not consistent with the party. Many senior CPM leaders also had alleged that A Padmakumar had vested political interests in the matter.

  2. Fine article but there is a difference with the US example where the Christian tradition is still strongly entrenched. Here, an Ordinance for example on the Ram Mandir issue will be hotly contested by the minority community. This is one of the fall outs from that fateful Partition of India.

    Girilal Jain had a long time ago argued that it was good that the recalcitrant Muslims who did not want to live in India should be allowed to go, otherwise they would perennially block the Indian parliament and other institutions. Whereas, India was able to push forward without too many obstacles.

    This may have been true at the time he wrote. Today, we see that their presence has constantly put forward road blocks.

    • An ordinance to build a Ram temple in Ayodhya is not possible because a government act, The Acquisition Of Certain Area At Ayodhya Act, 1993, acquiring the disputed land already exists. This act insists that the land ownership has to be decided by a court of law. It is therefore a “private” land dispute that can only be decided by a court, not Parliament.

      The Sarkar knows this very well, which is why it keeps quiet. Instead, it has deputed Yogi Adityanath to do his song and dance in Ayodhya to divert the Hindu attention from the fact that the Sarkar cannot legally order a temple to be built on the disputed land.

      This circumstance could possibly be changed if the Sarkar repealed or annulled the existing act and promulgated a new one allowing a temple to be built.

      But because the Sarkar still pretends that it is secular and that the Constitution is secular (it is not!), it is not really possible for the Sarkar to engage in a religious activity such as building a Hindu temple.

      As for the Supreme Court, it continues to show supreme contempt for all things Hindu and Hindus will not find any relief in its rulings.

      Ayodhya Act bars Ram Janmabhoomi Nyas from acquiring land – Venkat Parsa – Tehelka/The Milli Gazette

      The Ayodhya Act and the ruling of the Apex Court in the Presidential reference case, read in conjunction, are unambiguous that both the VHP and the Ram Janmabhoomi Nyas cannot be given any of the land in Ayodhya, reports Venkat Parsa

      New Delhi: The Acquisition of Certain Areas at Ayodhya Ordinance, 1993 bars the Vishwa Hindu Parishad (VHP)-controlled Ram Janmabhoomi Nyas from acquiring any portion of land at Ayodhya – not even any undisputed portion. The Supreme Court, in its verdict of October 24,1994, when it returned the Presidential reference on Ayodhya, had made it clear that the entire property – disputed and undisputed portions included – can only be managed by an organisation till finally the case is adjudicated upon. Similarly, Section 7 (2) of the Ayodhya Act amply makes it clear that no construction activity can take place on any portion of the land. It merely states that the land “shall be managed by the Central government or by a person or body of persons or trustees of any trust authorised by the government in this behalf.” (See The Acquisition of Certain Areas at Ayodhya Ordinance, 1993)

      This means the Centre had transferred to the new trust such responsibility as it has been carrying out. The Centre was playing the role of a “receiver” and for any portion of land transferred to a new trust under Section 6 (1) requires that as spelt out under Section 7 (2), the new body should play out the same role as the Centre – that of a statutory receiver, which means the status quo cannot be changed by commencing a construction activity, till the title-dispute is disposed of.

      The entire land is covered by the Ayodhya Act, meaning that the land cannot be categorised into disputed and undisputed portions. The Centre had acquired all the 67 acres and the Supreme Court upheld the Centre’s acquisitions.

      The Ayodhya Act and the ruling of the Apex Court in the Presidential reference case, reading conjunction, make it abundantly clear that there is no space or scope left even for interpretation, as it is categorical.

      The Apex Court, in its verdict of October 24, 1994, returning the Presidential reference on Ayodhya, upheld the Central Ayodhya Land Acquisition Act. It also struck down Section 4 (3), which held in abatement all litigation on the Ayodhya issue. As a result, the original title dispute on Ayodhya land got revived. In effect, the Supreme Court reduced the Ayodhya issue to a real estate dispute, by directing the Lucknow Bench of the Allahabad High Court to adjudicate upon the title dispute.

      In fact, Section 4 (3) stated, “If, on the commencement of this Ordinance, any suit, appeal or other proceeding in respect of the right, title and interest relating to any property, which has vested in the Central government, under Section 3, is pending before any court, tribunal or other authority, the same shall abate.” With the Apex Court striking it down through its verdict on October 24, 1994, the original title dispute got revived.

      The significance of the development is that thereby, the Ayodhya land has become a matter of sub-judice. During the pendency of the title-dispute, no construction activity can take place.

      The VHP and the VHP-controlled Ram Janmabhoomi Nyas are legally barred from even staking a claim to the land at Ayodhya under the law. The law has to be changed to facilitate any transfer of land at Ayodhya either to the VHP or the VHP-controlled Nyas. Construction of any kind on any portion of the land at Ayodhya is not permissible.

      The Ayodhya Act is categorical. It stipulates that the land can be transferred to “any authority or other body, or trustees of any trust, set up on or after the commencement of this Ordinance,” (that is January 7, 1993). There is no ambiguity or even scope left for interpretation. The VHP-controlled Ram Janmabhoomi Nyas has already been in existence prior to the promulgation of the Ayodhya Ordinance on January 7, 1993, and thus it is legally barred from being given possession of the land.

      While Section 6 (1) of the Act bars the land from being transferred to the VHP or the VHP-controlled Nyas, Section 7 (2) enjoins the maintenance of status quo on the land so transferred to the new body, till the original title-dispute is disposed of.

      Section 6 (1) states: “Notwithstanding anything contained in sections 3, 4, 5 and 7, the Central Government may, if it is satisfied that any authority or other body, or trustees of any trust, set up on or after the commencement of this Ordinance is or are willing to comply with such terms and conditions as that government may think fit to impose, direct by notification in the Official Gazette, that the right, title and interest or any of them in relation to the area or any part thereof, instead of continuing to vest in the Central government vests in that authority or body or trustees of that trust either on the date of the notification or on such later date as may be specified in the notification.”

      Section 7 (1) states: “Notwithstanding anything contained in any contract or instrument or order of any court, tribunal or other authority to the contrary, on and from the commencement of this Ordinance, the property vested in the Central government under Section 3 shall be managed by the Central government or by a person or body of persons or trustees of any trust authorised by that government in this behalf.” – Tehelka quoted by The Milli Gazette

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