The Sabarimala Row: Traditions Versus Constitutional Principles

At a time when religious issues have found their way to secular courts, the law-religion nexus ought to be examined.

(Photo: The Quint/ Lijumol Joseph)

“There is nothing which is not religion…” noted BR Ambedkar while discussing the nature of the relationship between law and religion in India. A scrutiny of this relationship is as much warranted today as it was during the drawing board days of our Constitution.

In recent times, many a religious issue have come to the secular courts of India. These range from matters pertaining to provisions in personal laws to religious practices like Santhara, from excommunication (Sardar Syedna Taher Saifuddin Saheb vs The State Of Bombay, 9 January 1962) to religious conversions facilitating multiple marriages, from ownership battles over the Babri Masjid-Ram Mandir site to the women’s current demand for access to shrines like Shani Shignapur and Sabarimala.

Trupti Desai of the Bhumata Brigade offers prayers at the Shani Shingnapur temple once it was open to women. (Photo: PTI)

The Definition of Indian Secularism

In India, both religion and the judiciary seem to have installed themselves in the public consciousness with fervour. Resurgence of religion in the public domain and the simultaneous rise in the credibility of the judiciary as the last recourse have put the two institutions on a somewhat competitive grid. For a country that constitutionally avows to be secular, it is an interesting situation.

It is important to remember that secular does not mean irreligious either by definition or intent. Nehru, under whose aegis our Constitution was conceptualised, sought to clarify it time and again. The non-discriminatory free play guaranteed to all religions sits at the heart of Indian secularism.

While this relativist approach to religion seems pragmatic, it comes with countless fumbling stones. The internal matters of religious communities routinely throw curveballs wherein constitutional mandates are putted against each other.

In the Sabarimala case, Justice Kurien raised the question of essential religious practices by asking why women should force the deity, against His own wish. This brings us to the uniqueness of Indian secularism. Rajeev Dhawan, senior lawyer at Supreme Court, provides a useful understanding of the same.

In the Sabarimala case, Justice Kurien raised the question of essential religious practices by asking why women should force the deity, against His own wish. (Photo: The Quint)

Courts as Religious Interpreters?

He sees three disparate components of secularism in India: religious freedom, celebratory neutrality, and reformatory justice. It is in the third component that most contestations crop up. In the ongoing Shayara Bano case for instance, the All India Muslim Personal Law Board has expressed its displeasure at the prospect of the scrapping of triple talaaq.

To ensure that religious practices do not trample upon fundamental rights guaranteed by the Constitution, without being accused of judicial overstepping, is the real test of the Indian judiciary. As our courts dispense reformatory justice, the bigger issue of the right approach to reforms looms large.

When a community is divided over issues or standing united against individual transgressions, how does a top-down approach in the form of legal ruling helps ‘reform’ it? Does it not broaden the fault lines? The question of overstepping becomes louder than the murmurs over the prospect of UCC.

Should the communities not be left to take calls on individual rights? But what happens when collective conscience of a people shirks from initiating affirmative action? A top-down command becomes imperative. Using the courts for reformation comes with its own perils. A lot is left to the discretion of an individual, the judge, or a bench. Do we need courts as religious interpreters?

The All India Muslim Personal Law Board expressed its displeasure at the prospect of scrapping of triple talaaq. (Photo: iStockphoto)

Faith Versus Equality

Laws and practices based on scriptures can be exclusionary and discriminate against certain groups. This needs to be challenged. In Indian society religion has the habit of percolating into every aspect of life. It may not be essentially a bad thing. The unifying nature of religion and associated morality are big positives for a civilisation.

However, religious diktats cannot be allowed to reverse civilisational advancements. The Indian Constitution allows freedom in essential religious practices but should it also perpetuate inequalities that are inherent in some of them? Shayara Bano, Sabarimala and Shignapur are not just matters of faith. They are about assertion of equality. About equal access to dignity. The Sabarimala case is to be heard by the Supreme Court shortly and it is going to be about traditions versus constitutional principle of equality.

Ideally, the reforms should have come from the communities concerned. A collective failure brings God to court. Rarely is anybody happy about that.

(The writer is Associate Fellow (Gender) at Observer Research Foundation)