The societal impact of recent judicial pronouncements is quite far-reaching as they can energise forces of change, which need a Newtonian push out of inertia. Voices of change, which could not gather the critical mass, have been triggered through path-breaking judgements of the Supreme Court and other courts. The Sabarimala verdict is an example. But, tradition is held out as a defence against an elaborate order of the apex court, which has discussed aspects of tradition, religion, belief, constitutional values, right to worship and what can constitute a religious denomination.
The Supreme Court judgement is eloquent and scholarly, touching upon all aspects. But, in the political domain protests have erupted against the implementation of the court order. This has happened in a society like Kerala, which claims to be enlightened. It is well evidenced that traditions change over a time and new practices kick in. Here, status quo is being advocated against a well articulated judgement, upholding constitutional rights. So far no one has come out with a reasoned critique of the Supreme Court order or what could be a feasible legal alternative. There is more heat and no light in the criticisms.
This judgement is not the only one of its kind coming from the judiciary. The apex court had earlier upheld the right of maintenance for Muslim women separated from their husbands, in the Shah Bano case in the mid-1980s. But a law was brought in to negate it.
The judiciary played a catalysing and progressive role in the case of right to property for Christian women in the famous Mary Roy case. More recently, it protected rights of Muslim women from divorce by triple talaq. The Bombay High Court upheld the right of women to worship in the Haji Ali Dargah. Cutting across the divide, courts have been looking at practices essential for religions and separating them carefully from practices which are alien to constitutional democracy.
Courts have not overstepped into the province of how practices fundamental to a religion should be conducted. On Sabarimala, the apex court has been very clear about what practices are fundamental to a religion and hence belong to the realm of religious freedom. The same has been done in the Haji Ali Dargah case by the Bombay High Court.
Other usages and customs, insofar as they are contrary to fundamental rights, are bound to be reviewed and are amenable to court directions, as principles of constitutional democracy reign supreme in our republic.
In the last century, reform movements against disabilities imposed on large sections of the population by the then privileged few, invoking divine sanctions, had their origin in the social and political domain. They were intertwined with the anti-imperialist freedom movement gathering momentum in various parts of the country.
Along with political freedom, obscurantist and caste practices were also fought against by the freedom movement. Electoral compulsions and deliberate communalisation by certain forces have effectively prevented the political domain from initiating such movements in the present times. As protectors of the Constitution, fundamental rights, and doing the duty of enforcing non-discrimination, the judiciary has been discharging its role which has a social reform impact.
There have been executive-judiciary conflicts, when certain acts like land reforms, abolition of privy purses and nationalization of certain private assets were implemented. These were challenged before the highest court. The debate over the precedence of Directive Principles over fundamental rights went on until the apex court held in the Keshavananda Bharati case that no law or amendment can alter the basic structure of the Constitution.
There was also the view that during the Emergency, the executive was trying to take away fundamental rights under the camouflage of progressive legislation. The post-Emergency Janata Party government made right to property not a fundamental right but a legal right and ensured safeguards against taking away right to life and liberty and declaration and continuance of the Emergency.
The right of judicial review of statutes that are passed to implement the Directive Principles was valid but open to judicial review as emphasized by the Supreme Court in the Minerva Mills case. Right from A.K. Gopalan v State of Madras, to ADM Jabalpur v S. Shiv Kant Shukla, fights for upholding fundamental rights were essentially in the political domain and the judicial response sided with the executive actions.
But things have taken a sharp turn in recent years. In the right to privacy case, the apex court gave a landmark decision reviewing its earlier decisions in the A.K. Gopalan and Shiv Kant Shukla cases. Right to life and liberty is now an inherent right. As regards moves to social and religious reform also, the voice of change in accordance with the spirit of the freedom guaranteed by the Constitution has come from the judiciary.
Let us also ask a few questions, which have hitherto not surfaced. Gender issues are not only social but also economic. The mere fact that women of all ages can enter Sabarimala is not going to enhance their social status, if there are other pull-down factors. Social reform is a larger issue than equality to worship and temple entry. The political domain should be addressing further issues. Instead, a section has been fighting against even limited freedom guaranteed by the judiciary.
The danger inherent is much larger. From a former chief minister and Union minister to the national president of a political party, they have stated that courts should refrain from interfering in religious matters. It is not that the court has interfered in a religious matter. It has considered religious practices and constitutional provisions and upheld fundamental rights. The costly fights to guard liberty and the basic structure of the Constitution are now being challenged. We are walking very fast in reverse gear from the constitutional values given by the people to themselves, when we had won freedom.
The Sabarimala judgement and the call to fight to protect traditions go much beyond the sanctum of the temple. They are ominous indicators against hard won rights through consistent fights in the political domain and through landmark judgements.
The Constitution is the cornerstone of Indian democracy, to borrow the words of Granville Austin, and the rights guaranteed therein cannot be surrendered. Protests against the Sabarimala judgment are not an issue of faith but are clearly political, which has to be debated in the secular domain. The future of Indian democracy cannot be subordinated to electoral expediencies which hardly value the balance between the executive, legislature and judiciary.
Customs, breaches
No woman no bar:
Women regardless of age used to offer puja during the first five days of the month at the Sannidhanam. But, customarily, young women stayed away from Sabarimala during the Mandala-Makaravilakku festival (November-January) and Vishu (April 14).
Ceremonial rice feeding:
Young mothers used to take infants for the ceremonial feeding of rice at Sannidhanam. Veteran bureaucrat T.K.A. Nair avers his mother had fed him rice at the hill shrine.
Maharani:
On May 13, 1940, the Maharani of Travancore visited the temple.
Jayamala darshan:
In 1986, Kannada actress Jayamala, now Karnataka minister for women and children development, had darshan at the sanctum sanctorum, allegedly with the help of tantri Kantararu Mohanaru. She supports the Supreme Court verdict removing the bar on young women’s entry.
Dance on steps:
In 1986, actress Jayashree and company danced near the 18 holy steps during the shoot of Tamil movie ‘Nambinar Keduvathillai’. Artistes and the director were fined Rs 1,000 each.
Woman Collector:
In 1995, Pathanamthitta district collector K.B. Valsala Kumari visited Sabarimala.
Commissioner’s affidavit:
Former Travancore Devaswom Board commissioner Chandrika testified in the High Court that she had visited the temple during the first of the month, asserting that women of all age groups used to worship at the temple all through the year, barring Vishu and the annual pilgrimage season.
Litigation
1990: S. Mahendran sends letter to High Court, citing breach of custom, which bars women in the presence of the celibate Ayyappa. HC converts letter into PIL.
The verdict: April 5, 1991: A division bench, headed by Justice K.S. Paripoornan, ruled that the bar on young women (10-50 yrs) is integral to customs and traditions at Sabrimala Ayyappa temple and ordered Travancore Devaswom Board to enforce it.
Lawyers’ plea: In 2006, women of the Indian Young Lawyers’ Association petitioned the Supreme Court to lift the ban on young women at Sabarimala, citing violation of rights to equality and gender discrimination. Bhakti Pasrija, general secretary of the Indian Young Lawyers’ Association, Laxmi Shastri, Prerna Kumari, Alka Sharma and Sudha Pal were petitioners.
Historic: On September 28, 2018, the SC ruled that women of all age groups can enter the temple. The verdict was passed with a 4-1 majority. The Then Chief Justice Dipak Misra and Justices A.M. Khanwilkar, R.F. Nariman and D.Y. Chandrachud favoured young women’s entry while Justice Indu Malhotra dissented.
Young women’s bid for darshan: Taking a cue from the LDF Government’s stand, some women trekked over the hills for the darshan. They included New York Times correspondent Suhasini Raj, homemaker Madhavi and family from Andhra Pradesh, and Kavita and Rehana Fatima from Kerala. But it was all in vain as the police and the Board played along, albeit to prevent bloodshed. Trupti Desai of Bhumata Brigade, who could not step out of Nedumbasserry airport following the BJP-led namajapa protest, has vowed to return, unannounced
Next stage: In January 2019, a bench headed by Ranjan Gogoi will hear whether review petitions should be admitted and whether a larger bench should hear the case.
(The writer is a social commentator and Visiting Fellow at Centre for Development Studies Thiruvananthapuram)
