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Reform, only left to the judiciary? -Nitin Pai
-The Hindu

More significant than the issue of whether women should be allowed entry into the Sabarimala temple is the question of whether secular judges ought to be the ones making that call. The more the state takes over the task of social reform, the less likely is the desired change to emerge from within the society

Last week, the Supreme Court declared that it would hear a public interest litigation (PIL) on whether women of menstrual age can be denied the right to enter the Ayyappa temple in Sabarimala, Kerala. The bench, in its observation to the Kerala government and the temple authorities, remarked that “unless you have a constitutional right, you cannot prohibit entry [to women].”

In 1993, the Kerala High Court had held that the Travancore Devaswom Board, the authority that manages the Sabarimala temple, could restrict access to women who were in the 10-50 age group. It had concluded that the “restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial,” and that “such restriction imposed by the Devaswom Board is not violative of Articles 15, 25 and 26 of the Constitution of India.” This is the position that the Supreme Court will revisit early next month in the context of arguments of gender equality and fundamental rights. In doing so, it will yet again wade into the paradoxical waters of a secular state making religious policies.

No strict religion-state separation

Unlike any other secular state, the Republic of India was conceived with a mandate for social revolution. This makes our situation unprecedented and unique. We do not have a “wall of separation” between religion and state that, for instance, exists in the United States. Furthermore, the founders of the Indian republic have enjoined the state to intervene in social customs and redress grievances arising out of them so that all citizens can equitably enjoy their constitutional rights and privileges. This is evident in the way Article 25, which deals with freedom of religion, is constructed. Unlike other articles dealing with the fundamental rights, it begins with caveats (“subject to public order, morality and health and to the other provisions”) before stating the right (“all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion”.) It goes on to empower the state to regulate and restrict non-religious activities associated with religion. It allows the state to make laws “providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus”. Interestingly, the term “Hindus” here includes “persons professing the Sikh, Jaina or Buddhist religion”. The rights of religious minorities are protected under subsequent articles. The asymmetries that arise from these articles are causes of grievances, disgruntlements and contestations that vitiate our politics to this day.

Why did the wise people who drafted a remarkably liberal, secular and modern Constitution decide to give the state so much power over religion? The words of Dr. B.R. Ambedkar, Chairman of the Drafting Committee, give us some insight. Arguing for a minimalist definition of what constitutes religion — and hence needs to be kept outside the domain of the state — he held that “the religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill.” In other words, a strict separation between religion and state would have prevented the Constitution from carrying out social revolution.

In the early decades of our republic, the Supreme Court evolved an “essential religious practices doctrine” that spelt out the outer limits of what could be called the sole domain of religion. Unfortunately, over the years, this doctrine was interpreted in an elastic, and sometimes arbitrary manner. Judges gave themselves the power to determine what constitutes essential religious practice not just for one religion, but for all of them.

India might be the only republic where the judiciary can pronounce on matters not only relating to law, but also those concerning theology. Thus, courts have ruled on topics like the Jain practice of Santhara (voluntary fasting to death); and on who can and cannot become an archaka (priest). They have even pronounced on rather vexed questions like what should be the shape of the markings on the temple elephant’s head.

The higher judiciary’s decisions are seen as legitimate among the public because of the relative credibility it enjoys. Judicial activism and encroachment into legislative and executive domains add to its popularity. Thus, we should not be surprised if the Supreme Court declares that the Sabarimala temple must be thrown open to women of all ages.

Gender equality vs. judicial overreach

If it does, it will be seen as another victory for the cause of gender equality, even if only a miniscule proportion of women are likely to ever exercise that right. Even women who are in a position to visit the temple might choose not to do so out of a certain regard for norms and practices. And some may choose to visit and society, traditions and norms must change to accommodate them.

Yet, we should be wary of a judiciary that encroaches on more domains, even for causes we consider as desirable and good. “Caesaropapism” is a term used to describe a state of complete subordination of religion to the secular state. India runs the risk of being in thrall of a variant of this, a condition that can be termed “judiciopapism”, where judges can completely overrule religious authority. With each judgment that shrinks the scope of what is considered an “essential religious practice”, the risk grows.

Why should we care? To suggest that this is not a bad thing because it delivers progressive results is similar to contending that dictatorships are good because they can produce results that democracies struggle to achieve. The revolutionary makers of our republic certainly did not envisage a “judiciopapist” order. Even the strongest argument in favour of secularism cannot condone such a state of affairs.

Worse, the more the state takes over the task of social reform, the less likely it is to emerge from within the society. Religious traditions often respond to external interventions by growing more conservative and resisting reform. A democracy is unlikely to muster the will to see through state-imposed reform, undermining its success. Politics in a society like ours, with its many religions and sects, is likely to create logjams to even the most basic social reforms. Note how the case for a Uniform Civil Code has become a ground for communal politics.

Further, attempts by the state at a “social revolution” only weaken efforts of social reformers who belonged to various communities. From Buddha to Kabir, from Guru Nanak to Narayana Guru, India has historically seen social reformers emerge as a response to orthodoxy and rigidity. Independent India has seen fewer of them, perhaps because the Indian republic has arrogated that responsibility to itself.

Ronojoy Sen rightly notes that court rulings have “furthered the reformist agenda of the Indian state at the expense of religious freedom and neutrality.” The caveats are eating into the right. More significant than the issue of whether women should be allowed entry into the Sabarimala temple is the question of whether secular judges ought to be the ones making that call.

(Nitin Pai is director of the Takshashila Institution, an independent think tank and school of public policy.)