Editor's note: This article was originally published on 22 October, 2018. It is being republished in light of the CJI Ranjan Gogoi-led Supreme Court bench being slated to deliver the verdict on a batch of petitions seeking re-examination of its decision to allow entry of women of menstruating age in Kerala's Sabarimala Temple on Thursday at 10.30 am.
Union women and child development minister Maneka Gandhi’s opinion that the Supreme Court verdict on Sabarimala has made Hinduism more “inclusive” is more than a little ironic. If anything, the verdict and its aftermath have shown that it is easy to constrict and exploit the openness, pluralism and diversity of Hinduism and force upon it an Abrahamic "quick fix" that threatens to alter its core. And this process, once set in motion, feeds on itself.
Sabarimala should never have been the cause for a debate on the touchstone of one-size-fits-all feminism. Much less should it have been a trigger for judicial overreach. It is pointless to search for misogyny or patriarchal oppression in a religious custom where a deity in his eternal celibate avatar wishes to be spared the presence of women of menstruating age. It was not a blanket ban on women. They are free to visit the shrine unless within that age bracket. There are 140 other Lord Ayyappa temples in Kerala alone that place no bar on age or gender.
To subject one particular custom in one particular temple to judicial decree goes beyond attempting to micromanage Hinduism. It disrespects the deity’s wishes, distills Lord Ayyappa of his "naishtika brahmachari" characteristic and ultimately negates the essence of Hinduism as a lived experience that not just worships but celebrates the bond between the deity and the faithful in dynamic ways. The court says that the deity in a temple has no constitutional rights. The devotees believe he has. Faith is beyond the realm of reason or statutes.
To argue, as Justice DY Chandrachud has done, that the burden of the deity’s celibacy should not be transferred “on a woman and construct her as a cause for deviation from celibacy” is specious.
On this, R Jagannathan writes in Swarajyamag, “The world over, celibates do separate themselves from temptations of the flesh and the Catholic church is a prime example of this. So, does Justice Chandrachud believe that the burden of the Pope’s celibacy, and those of his cardinals, bishops and lesser priests, is being cast unfairly on nuns and Catholic women?”
Religious traditions or customs that do not reflect any social evil (such as sati) or economic oppression (such as triple talaq) are not justiciable. In her dissenting opinion in the 4:1 verdict, Justice Indu Malhotra wrote: “in a secular polity, issues which are matters of deep religious faith and sentiment, must not ordinarily be interfered with by courts.”
Tampering with this simple rule results in unintended consequences. The apex court through its majority verdict may have wished to introduce “reform” through engineering, but such attempts are almost always doomed to fail in the absence of public support. On the other hand, as we have been witnessing in the protests against the judgment, such engineering is likely to have the opposite effect. It isn’t just the futile attempt to rationalise faith and unintentionally create a persecution complex among practicing Hindus, but also the creation of a space for activism in religion that further hardens people's stances. And that’s not all.
There are more ways in which the majority verdict is hastening the Abrahamisation of Hindu faith. The court has tested the custom solely on the basis of Article 14 (equality before law) and found it “wrong”. However, as Justice Malhotra had pointed out in her dissenting judgement, “the equality doctrine enshrined under Article 14 of the Constitution does not override the fundamental right guaranteed by Article 25 to every individual to freely profess, practice and propagate their faith, in accordance with the tenets of their religion.”
The majority judgement refuses also to recognise Lord Ayyappa devotees as a separate entity, in effect denying them the group rights under Article 26 that would have enabled them to manage their own religious affairs — a protection extended to minorities. Notwithstanding the dissenting opinion of Justice Malhotra, who wrote that “Article 26 not only applies to religion but also sects”, this ruling strips different Hindu sects of constitutional protection and makes them vulnerable to similar instances of judicial overreach.
What this judgment therefore does is inadvertently push Hindus towards seeking minority status in a bid to immunise their religion from judicial overreach or pressurise the government to bring an amendment to the Constitution.
In a separate article for Swarajyamag, R Jagannathan writes that this verdict opens the opportunity for the Narendra Modi government to amend the Constitution to the effect that “the protections given in Articles 25-30 will be equally applicable to any community seeking it, including the majority, and the Ayyappa devotees would benefit”.
The exclusionary tactic of the Supreme Court cuts deeper, however. In assuming the role of a papal authority while managing Hindu religious affairs — while at the same time denying Lord Ayyappa’s devotees the right to do so — the court has foisted among Hindus a sanctified version of the religion that looks and sounds like an Abrahamic faith, devoid of its customs and codified by judicial decree.
In his column for The Times of India, Arghya Sengupta of Vidhi Centre for Legal Policy writes, “if the tests for determining a religious denomination are to be applied dogmatically as they have been in this case, the court has unwittingly pushed a sterile and exclusionary version of Hinduism that has little basis in Hindu texts. Exclusion of other faiths, streamlined organisation and dogmatic pathways to achieving salvation are alien to Hindu scripture. Constitutional doctrine cannot emerge in a vacuum and be applied so pedantically.”
The consequences have been severe. As the gates of Sabarimala Temple close for a month on Monday, a quick stock-taking suggests that not just devotees of Lord Ayyappa (among which women equal, if not outnumber men) have reacted with fury. The verdict has run into a groundswell of protests and there has been a considerable hardening of stance among Hindus everywhere.
Amid this judicial outreach, misplaced activism has further queered the pitch. From the likes of activist Rehana Fathima to journalists, Sabarimala has become a hunting ground for "crusaders". This sort of activism is good for proving a point but nothing else, serving to only harden stances further in a polarised atmosphere.
Say one truth a day ; Ayyappa to Media
— HKupdate (@HKupdate) October 21, 2018
We have decided to lock the temple and handover the keys & leave. I stand with the devotees. I do not have any other option: Kandararu Rajeevaru, #SabarimalaTemple head priest #Kerala (file pic) pic.twitter.com/6LilPOx9qr
— ANI (@ANI) October 19, 2018
As ordinary devotees and the head priest of the Sabarimala temple feel as if their faith is under siege, it is worth reflecting on the path Hinduism might take if forced within the shackles of monotheistic interpretation from a “judiciopapist” authority. It won’t remain the pluralist philosophy that is a way of life for billions.
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Updated Date: Nov 14, 2019 09:17:26 IST