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Sabarimala verdict: Should Religious Freedom trump Individual Freedom Laws?verified tick

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6 months ago
6 months ago
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The right of women to worship vs the right to religious institutions to manage their affairs; these aren’t just constitutional provisions pitted against one another in theory. As the Sabarimala verdict brews more controversy, let us take a look at what started it, how it unravelled, and what it may lead to.

The Indian brand of secularism is unlike any other. A country as culturally rich and diverse as India has, since independence, found itself walking the tightrope walk between religious freedom and communal discrimination, individual freedoms and community rights. We walk that tightrope again, with the apex court lifting the ban on women’s entry into Kerala’s Sabarimala Temple. Lauded by most, the verdict has, however attracted a lot of flak from politicians, celebrities and most importantly, from a good chunk of the people of Kerala. But what is the issue that has the people of the country divided?

The Sabarimala temple was built in the 12th century AD, with a shrine devoted to Lord Ayyappa. Encircled by hills and forests, this temple attracts one of the largest pilgrimages in the world, with over 50 million devotees visiting each year. The Sabarimala Temple is the only temple where the nature of the deity depicted is that of a ‘naishtika brahmachari’ (eternal celibate), and hence, prohibits women of ages 10-50 from entering the temple or worshipping the shrine. The Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules of 1965, has since mandated the ban, and the Kerala HC has upheld it citing the ‘Ayyappans’, followers of Lord Ayyappa as a separate religious denomination and the prohibition of women as being an essential religious practices.

Now, the Constitution of India protects religious freedom in two ways: Article 25 states that “all persons are equally entitled to freedom of conscience and the right to freely profess, practise and propagate religion.” This means that all individuals have the freedom to worship and profess their religious faith. Article 26, however, states that “…every religious denomination shall have the right…(b) to manage its own affairs in matters of religion;” This essentially means that religious institutions have the right to take care and make rules for the proper functioning of their affairs. The legal challenge to the exclusion of women in the age group 10-50 from the temple has presented a contention between the group rights of the temple authorities to uphold the ban, and the individual rights of women to offer worship and practise their religious faith.

Source- IANS

The case was reviewed by a 5-judge Constitution bench, comprising of then Chief Justice of India Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra. The court, after hearing arguments of both the petitioners as well as the authorities at the Travancore Dewaswom Board, ruled in a 4:1 majority that the ban violates women’s right to pray and practise religion. Of the five, the lone woman judge, Indu Malhotra dissented from the majority opinion, citing religious freedom of the Board and upholding the followers of Ayyappa as a separate religious denomination, and hence their right to practise the ban as “essential to religion”. She stated that “…It is irrelevant whether the practice is rational or logical. Notions of rationality cannot be invoked in matters of religion by courts.” Constitutional morality cannot override the freedom of a religious community to practise its faith, or else the very idea of secularism falls short.

The majority opinion however, understood the exclusion of women of a certain age group as a form of untouchability, given that the ban was imposed on menstruating women and to avoid any “pollution” of the sacred deity. Article 17 that abolishes untouchability practises with relation to lower castes “will also apply to the systemic humiliation, exclusion and subjugation faced by women” Said Justice D Y Chandrachud. Moreover, the court did not recognise the “Ayyappans” as a religious denomination and hence the ban did not constitute an essential religious practice. On the contrary, it is an essential part of the Hindu religion to allow Hindu women to enter a temple as devotees, the bench said, and that the Constitution should not become an instrument for the perpetuation of patriarchy.

Source- Twitter

While the court’s decision has been lauded, the verdict has also seen intense backlash in the recent past, with the TDB refusing to adhere to the verdict and sending back two women devotees amidst protests against the entry of women, and the Kerala Shiv Sena touting mass suicide if the verdict wasn’t reviewed. An Indian express article dated September 28 talked about the other, disappointing side of the verdict. Stating that not all exclusion amounts to discrimination, the author tried to reason that personal morality over the freedom of a religious institution will have problematic repercussions. This can be seen in the streets of Kerala today, when thousands of women had come out in support of the ban, under the #ReadyToWait campaign, stating that the faith in and love of Lord Ayyappa is much more than the need to be able to enter the shrine, and for it, they are ready to wait till the age of 50.

While the court has ruled against the ban, it is interesting to see how secularism in India works. Given our diverse populace, and the fact that religion is not necessarily a private affair in India, it is interesting to see how the state bargains its way in and out of religious matters. The triple talaq verdict, as one article said, was historic, but did not necessarily interfere with the workings of a religious institution. This opens up questions about the extent to which the state can exercise its rationality on the working of a religious group, and how secular is the Indian polity. Are we, the state that is, selectively interfering, and do we need to be more removed from religious matters and let them be? More importantly, when do group rights need to be read above individual rights, if that is possible at all?

The Sabarimala issue opens the question on secularism and the Indian understanding of it, while also creating an intellectual discourse on all platforms about the extent to which individual rights trump group rights. What this leads to next, only time will tell.

By Ishita Srivastava

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