POV: THE BJP’S SHAH BANO MO­MENT

India Today - - INSIDE - By Faizan Mustafa The au­thor is Vice Chan­cel­lor, NAL­SAR Univer­sity of Law, Hy­der­abad

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

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