POV: THE BJP’S SHAH BANO MOMENT
Religion has been an immemorial preoccupation of human thought. Just as he has biological, economic and social needs, man has religious needs too. In the words of Sir Spencer Harcourt Butler, an ICS officer who served in India in the 1920s and helped set up BHU (Banaras Hindu University) and Aligarh Muslim University (AMU): “Indians are essentially religious [just] as Europeans are essentially secular.” The repression of religions and identity-based groups can, then, only lead to social violence, not harmony.
Article 25 of the Constitution grants every individual freedom of religion, but this freedom is not only subject to public order, health and morality but also to other fundamental rights. Thus an individual’s religious freedom is subordinated to the right to equality. But the freedom of a religious denomination/ sect ‘in matters of religion’, under Art. 26, is not subject to fundamental rights as it is a group right. In interpreting Art. 26 in the temple-entry case, in the early days of the republic, the Supreme Court invoked the doctrine of ‘essentiality’ and held that only essential religious practices, as determined by the court, will be considered to be within the ambit of ‘freedom of religion’.
The court, in running this test, took upon itself the extremely onerous and undesirable task of deciding on a purely religious question. In the process, it privileged some religious practices over others, and made dubious observations such as ‘a mosque is not an essential element of Islam’ and ‘untouchability is not an essential Hindu practice’. Religions should ideally be independent of law and the State, and the Judiciary is, after all, one of the three organs of the State.
In Sabarimala, a five-judge bench struck down, with a 4-1 majority, the rule prohibiting women from entering the Sabarimala temple, as this rule was in violation of the parent Act on places of worship, which explicitly lays down that all places of worship in the state of Kerala will be open to all Hindus. The court refused to recognise Ayyappa devotees as a distinct Hindu sect. Ideally, our courts should not apply the ‘strict scrutiny test’—a form of judicial review to determine constitutionality—in determining the existence of religious sects.
The court also refused to extend ‘freedom of religion’ to gods, which was the primary argument of the Sabarimala trust: that Ayyappa, being a celibate, had himself excluded women from his temple. Justice D.Y. Chandrachud dismissed this reading of ‘god’s will’ by simply stating that deities were not entitled to fundamental rights. The court also said that ‘morality’ meant ‘constitutional morality’ and, therefore, the exclusion of women could not be permitted. However desirable it may be to apply said constitutional morality to religions, it’s fraught to do so in immature democracies like ours, given that religions are based on irrational beliefs.
There is no denying that religions need reform, but the essentiality test mandates judges to decide on matters beyond their training. Reforms in religions should ideally come from within. The judiciary’s attempts to step into the breach and try to reform religions can be counter-productive and play into the hands of fundamentalist forces. What we need instead is dialogue, to make, for example, the Sabarimala trust see that Ayyappa is no misogynist, and can surely maintain his celibacy even in the presence of young women.
The judgment has led to huge protests and violence. Union ministers have made regressive comments about the powers of the courts. The BJP chief threatened the Kerala government and dared the Supreme Court. RSS chief Mohan Bhagwat not only criticised the judgment but also, in an open challenge to the supremacy of the rule of law, demanded an ordinance to clear the way for the construction of a Ram temple at the disputed site in Ayodhya.
The hypocrisy of the Hindu right is in full public view. Their commitment to gender justice and arguments made in making triple talaq a criminal offence are now rightfully questioned. Interestingly, the review petition on Sabarimala has made arguments very similar to those made by the Muslim Personal Law Board in the triple talaq case. This is the BJP’s Shah Bano moment.
Sabarimala has exposed the hypocrisy of the Hindu right, their dubious commitment to gender justice and the double standards in light of their stand during triple talaq