Lessons from Sabarimala

Democracy in Kerala, like in other parts of the country, faces an immense threat from religious fanatics who believe in mobocracy and thrive on sheer misuse of ill-informed religious feelings for electoral gain. They have scant regard for judicial process or verdict. They cling to the majoritarian ego and try to place their morality over constitutional morality. In North India, they plead for an ordinance on Ram temple disregarding the pendency of the dispute in the apex court; in South India, they are for physically prohibiting young women from entering the shrine at Sabarimala, overturning the verdict of the apex court.

The Constitution Bench decision that allows all women to the sanctum sanctorum is no longer a matter of policy decision by the government or by the Travancore Devaswom Board. It is now the law of the land, going by Article 141 of the Constitution. Like rule of law, the independence of judiciary is part of the basic structure of the Constitution. Taken so, in view of the majority verdict in the Sabarimala case, preventing entry of young women into the shrine is an open threat to the very idea of constitutional democracy.

“Are we to continue to be a government of law administered by the courts or are we to become a government of agitators by whom law and the courts are only to be tolerated so long as the law and the courts are in accord with the popular wishes of the moment?” asked William Hornblower, the famous American jurist back in 1912, while addressing a group of law students. Even after a century, the fanatic onslaught on the streets of Kerala, which is regarded as a relatively modern state with an egalitarian political vision, indubitably conveys unpleasant signals.

Constitutional democracy differs from conventional democracy. It is not about the imposition of majoritarian view. To go back to Hornblower: “Civilisation consists in subordinating the wishes of the majority to the rights of the minority...The spirit of lynch law may be manifested in attacks on the individual citizens or in attacks on the courts themselves.” The post-verdict incidents at Sabarimala illustrate the correctness of this concern.

The mob on the street does not represent the majority. Even if it does, one needs to understand that liberty is always individual-centric. Ayn Rand famously said, “Individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority; the political function of rights is precisely to protect minorities from oppression by majorities…”

In the Sabarimala judgement, the top court, through then Chief Justice Dipak Misra rightly said that “any relationship with the creator is a transcendental one crossing all socially-created artificial barriers”. The verdict was a judicial attempt to harmonise gender rights and religious rights.

It was a synthesis made possible based on the thesis of faith and the perceived antithesis of the Constitution. It placed women above the rituals, and closer to the deity. It redefined the concept of equality, an idea very much attached to the Sabarimala temple. It provided a legal equivalent for tat twam asi, inscribed on the façade of the temple. Conceptually, the pilgrim himself or herself becomes Ayyappa, the god, and this is precisely what the inscription means.

Justice Nariman, in his judgement, said that Article 25(1) pertaining to religious rights recognises women’s fundamental rights as well. The court also found that exclusion of young women is not an age-old practice, and women were actually allowed to enter the shrine even in the recent past. The claim that the shrine has a Buddhist genesis is also much discussed in the public domain. Thus, Sabarimala reflects history whereby the Buddhist dharma, based on enquiry and non-violence, was slowly replaced by the Adwaitha philosophy.

History also indicates that during an interregnum, Ayyappa was treated as a tribal god as the Malayarayan people had the exclusive privilege to perform religious rituals. The Brahmanical hegemony in the affairs of the temple is a recent phenomenon. All the rituals thus underwent radical shifts and even the 41-day ‘vratam’ is seldom practised by the majority of the worshippers, as of now. No belief or ritual related to Sabarimala ever remained static and there was no bloodshed even during such revolutionary shifts.

Addition of equality to faith

The apex court’s verdict was only facilitating a useful addition of equality principles to the domain of faith and religiosity. Thus, a spiritual and historical reading of the judgement is not only possible but also inevitable and profitable.

The tendency of a section of the public to go back to the 19th century by negating the legacy of radical social reforms initiated by the likes of Narayana guru and Ayyankali is unfortunate. The top court, in the seminal judgement in the S R Bommai case (1994) deprecated the communalisation of the polity while criticising the kar sevaks who were involved in the Babri Masjid demolition drive. In Sabarimala, one finds a tragic repetition of the political mishap. It is a pity that the political issues of our time still surround Rama and Ayyappa.

Against the provisions of the Hindu Code Bill that tried to safeguard the Hindu woman’s proprietary rights, Hindu women themselves were in the forefront of protest in the 1950s. In Switzerland, in 1971, during the referendum to decide whether women should have voting rights, a women’s committee was formed to oppose women’s suffrage, of which Gertrud Haldimann was the co-founder.

The woman protesting against herself, under the leadership of the Sangh Parivar, is definitely on the wrong side of history. A liberation theology is very much an imperative even in the non-Semitic Hindu religion since it has attained a Semitic character in contemporary India due to its politicisation and communalisation.

(The writer is a lawyer at the Supreme Court of India)