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Right of a devotee vs Right of a Lord

VVP Sharma @vvemuri

Updated: February 8, 2016, 2:21 PM IST
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Lord Ayyappa, resident of Sabarimala temple in Kerala, is a celibate and the presence of women of reproductive age would disturb him.

The issue before the country is not removal of poverty or saving the girl child or even good governance and end to corruption, but a vague custom not backed by scientific evidence and which has been allowed to perpetuate from a myth to harsh truth because of the whims of someone who has been authorized to run a temple.

The Supreme Court is now seized of the matter. What is the question the country’s highest court needs to consider?

*Is it whether women of reproductive age should be allowed into the Sabarimala temple in Kerala?

*Is it whether the writ of the head priest (Tanthri) of the temple to keep women of reproductive age away from the temple is more powerful than the Constitution of this country?

*Is it whether there is a Constitutional confrontation between a citizen’s right to religion versus a religion’s right to its rituals?

*Is it whether the Supreme Court should re-visit its judgment that religious customs are immune to challenge under Article 14 of the Constitution which says that “the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India”?

*Is it whether the judiciary can protect the rights of an individual when they clash with the rights of a religion and when the Supreme Court itself has already ruled that religious customs are immune to challenge?

*Is it whether the Supreme Court cannot rule against the inconvenient, parallel existence of constitutional and religious laws and will leave it to the Legislature to deal with?

We are facing this legal dispute for the simple reason that there is no consonance between various provisions of the Constitution which protect various rights of various bodies and individuals. Specially when it comes to religion and social customs and concerning women. The lack of consonance arises out of the existence of religious and personal laws alongside constitutional laws. In turn, the presence of these extra-constitutional laws encourages orthodoxy and superstitions and unscientific beliefs which go against the grain of what a portion of the Preamble of the Constitution guarantees its citizens: Liberty of thought, expression, belief, faith and worship.

In a way, how the Supreme Court decides on the Sabarimala dispute will inform us whether we as a country are in a position to tackle religious and personal laws whether of the Sabarimala Tanthris, the Sharia or the Khap Panchayats and the like. That is where the essence of our commitment to secularism and social progress eventually lies. (Will this make me a Right-winger in the eyes of the Left-winger? Depends on their level of ignorance, but seriously we should decide once and for all what we are and what we want to be.)

So, the buck stops there. Why?

Take the Sabarimala example. We can take the example of any other religion as well, but this happens to be current and contemporary, that’s why (I need to be politically correct in the present atmosphere of tolerance and intolerance, I am told!).

The Lord, Ayyappa, is a celibate. The Lord has laid down a strict regimen for devotees coming to see him. Any violation of the rules is a sacrilege. The Lord’s celibacy has to be protected at all costs.

Which part of which law says all this. None. Then who has made these rules and who is enforcing these rules? They were made and are enforced by the members of the Thazamon Madom, the family of Tanthris of Sabarimala, and the Dewasom Board.

Do they possess any evidence that the Lord told them about the kind of rituals and rules he wants? No.

Do they possess any legal sanctity to make and enforce these rules? No, unless you take cognizance of the July 7, 2015 judgment of the Supreme Court in the case of Riju Prasad Sarma vs The state of Assam.

What exactly did the court say in the judgment? “…religious believes (sic), customs and practices based upon religious faith and scriptures cannot be treated to be void. Religious freedoms protected by Articles 25 and 26 can be curtailed only by law, made by a competent legislature to the permissible extent. The Court can surely examine and strike down a State action or law on the grounds of Articles 14 and 15. But in a pluralist society as existing in India, the task of carrying out reforms affecting religious believes has to be left in the hands of the State.”

Here comes the crux. We have a priest who lays down a certain rule. We have a State body, the Dewasom Board, which implements the rule. People are forced to follow that rule. The rule cannot be challenged. If the rule bans a section of the people from a particular act, who will this section approach for justice on the ground that the said rule infringes on their right to religion? The Supreme Court has already answered, in the above judgment: the State.

In that case, why is the Supreme Court seized of the current Sabarimala dispute? Shouldn’t it be the headache of the State? Or am I missing something? Or is it that the Supreme Court would like to see how the State handles the potentially incendiary issue of curtailing a religious belief in this country?

There is no exception to the observation that a religious custom or rule robs a citizen of his or her fundamental rights. Every time an individual or a body purporting to represent a religious authority frames a rule or custom, the only thing achieved is a restriction of personal freedom.

Honour killings, female foeticide and ban on girls wearing jeans are no different from ban on entry of women of reproductive age to Sabarimala, ban on entry of non-Hindu women to Puri or the ban on entry of women to the Shani temple near Shirdi. They all restrict personal freedom, singularly of women.

There is one way of looking at this Sabarimala issue. It is purely a case of gender discrimination and should be treated as such. Nothing more, nothing less. One gets into legal jargon and talks about the constitution and rights and what not only to confuse the issue.

Though I must admit that the Supreme Court while taking cognizance of the Sabarimala case raised its voice clearly against regressive orthodoxy: “Why can you not let a woman enter? On what basis are you prohibiting women entry... What is your logic? Women may or may not want to go (to worship at Sabarimala), but that is her personal choice….Unless you have a constitutional right to prohibit women entry, you cannot prevent them from worshipping at the shrine. There is a difference between a temple meant for the public to worship and a mutt….”

That clarity of thought should necessarily translate into the positive action of curbing the intemperate conditions of whimsical religiousness. It all boils down to not about whose rights the Constitution protects but whether the Constitution also protects the right to scientific social progress.

A religion without rules is also automatically free from middlemen like priests and boards. The relationship between such a religion and a citizen is what it should always have been: Pure and personal.
First Published: February 8, 2016, 2:21 PM IST

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