SABARIMALA APPEAL: A TRAGEDY OF BLUNDERS

Thomas Gray, an English poet and scholar, coined the phrase: “ignorance is bliss”. At times, though, ignorance can lead to an “abyss of depravity”...in legal argument.

Case in point. The recent judgment of the Hon'ble Supreme Court of India in the Sabarimala Temple case.

The pronouncement has paved the way for entry of all women into the sanctum sanctorum of the temple. It is no doubt a watershed moment in the history of justice in India. While devotees of Lord Ayyappa, the presiding Deity of the Sabarimala Temple, have assailed the landmark verdict, women's rights activists and liberals have hailed it.

Nevertheless, the judgment does represent the nadir of legal presentation and advocative persuasion. Here are seven failings of the battery of legal luminaries that argued the matter.

Hindu Temple: The Lord's Home

ONE: A Hindu temple is referred to as devālaya or devasthāna— literally, 'home of God' or 'abode of God'. As has been held by the Hon'ble Apex Court, the divine spirit descends into the idol/image in the temple upon consecration. From then on, the image of the presiding Deity, a juristic entity under law, is believed to reside in the temple. Devotees then venerate the image through assorted pūjas, ārti, etc., which the priestly class, as intermediaries, perform in the temple.

Thus, the Hindu temple erases the divide between man and the Divine. It serves as a place of communion with Divinity for devotees and provides spiritual bliss and succor to the faithful. It is not a “place of worship (pūja)” for devotees, who can seek audience, that is, darśaņa of the Deity though and receive His blessings by offering prayers and obeisance to the Almighty through the temple priest, or archaka. No rituals, be it seva, pūja, homa, yajna or archana, are performed directly by the faithful, who are mere visitors/spectators within the temple.

Thus, being the abode of the Almighty, the temple precincts are His/Her private space sanctified through rituals and practices based on specific vedās, āgamas, śāstras and sampradāyas.

It is apparent that the temple trustees were unable to convince the Hon'ble Apex Court that the temple is not a public space per se. Neither is it a tourist spot. Hence, entry is a privilege governed by applicable customs and traditions.

No Gender-based Disparity or Discrimination

TWO: The counsels appearing on behalf of the temple trustees ought to have argued that the prevalent practice in question is only age-based exclusion; it is not gender-based disparity or discrimination.

Such age-based exclusions, restrictions, prohibitions and eligibility criteria have always been applied by the State for several purposes, which inter alia include appointments to public offices.

Now, it is empirically established and scientifically supported that while many girls attain puberty at an age as early as 8 years, some women reach menopause at an age as late as 55 years. The median age for menopause among Indian women is believed to be 44 years.

Further, the anatomical and physiological phenomenon of menstruation is not restricted to women alone. It is a medical and scientific fact that menstruation occurs in “intersex humans”, “trans-men” and “pseudo-hermaphroditic men with autosomal recessive congenital disorders due to the presence of Müllerian derivatives.”

Hence, it can hardly be concluded that the practice is discriminatory towards menstruating women, given the lack of scriptural records linking the practice to physiological or reproductive criteria.

So why this brouhaha over the erroneous linking of an age-based restriction with menstruation?

Arbitrariness of the Age Bracket

All the same, the age-group of 10-50 years is arguably and admittedly arbitrary. As much as the age-limit of 32 years applicable to 'general-category' candidates appearing for the UPSC examinations is!

Further, Articles 14 and 15 impose duties on the State and not on religion, which is 'separate' from our State under our constitutional framework and the 'secular' principles enshrined therein. Therefore, the contention that the age restriction at Sabarimala is ultra vires the Constitution is a red herring, be it on legal or moral grounds.

Rights and Privileges of the Deity

THREE: It is well-settled that rights can be enjoyed by one and all without depriving, derogating or diminishing the rights of others. It is a fact that a large section of Hindu society, both male and female, revere Lord Ayyappa as a “naiśțika brahmachāri” and support the continuance of the prevalent customary practices, which are neither pernicious to the interests of nor detrimental to the well-being of other devotees.

Indeed devotees in favor of sustaining the traditional practices at Sabarimala Temple too are equally entitled to freedom of conscience and the right to freely practice their religion. They too have a right to adhere to rituals and express their devotion within the sanctum sanctorum and a religious milieu that is devoid of women of a particular age-group, arbitrary or otherwise. No coercion or compulsion can be imposed on them in issues of individual faith.

Of course, those who believe that such customary practices in the temple of great antiquity are abhorrent or repugnant, have no locus to demand any reformation of a matter pertaining to personal choice and private preference.

Nonetheless, non-believers must be freely allowed to form a separate sect or schismatic denomination of Lord Ayyappa worshipers and set up religious institutions that impose no restrictions on its faithful.

Arduous Sabarimala Pilgrimage

FOUR: Further, for many devotees, observance of piety, celibacy and abstinence over 41 days culminates in the visit to the Sabarimala shrine. This crucial facet was not forcefully brought out during arguments.

An essential aspect of the observances is that the darśaņa of Lord Ayyappa is to be completed in a certain religious context and traditional setting that is devoid of women in the said age-group. Hence, the presence of such women in the temple precincts would hurt the religious sentiments and violate the fundamental rights of the many devotees observing the elaborate 41-day ritual with great zeal, fealty and asceticism.

In fact, female worshipers with true devotion for and great reverence to the Deity would honor tradition and refrain from entering the sanctum sanctorum. After all, devotees are those who owe allegiance to, respect the sanctity of and protect the dignity of the Deity. Such persons surely would abide by applicable customs, practices and traditions.

It is only agenda-driven atheists, heretical activists and meddlesome mischief-mongers masquerading as devotees of the Lord who would want to spoil the holiness of a 41-day, penance-like ritual and pilgrimage undertaken by millions of Hindu men.

Fundamental Rights of Devotees

FIVE: The fundamental rights delineated in Article 25 of the Constitution are no doubt available to 'all persons'. But, the rights are to be enjoyed and exercised without hurting corresponding rights of others.

Thus, the counsels failed to establish that those rights do not extend to the right to worship inside a temple, which is the exclusive domain/privilege of the designated priest(s) acting as an intermediate agent or empowered attorney for appropriately chanting mantras and performing rituals.

The entry to the holy shrine is indeed an integral aspect of the 41-day “vrittham”, which comprises of pious observances and devout abstinence. The arduous pilgrimage to and the final, ceremonial entry into the sanctum sanctorum are essential elements for the segment of Hindus, denominational or otherwise, devoted to Lord Ayyappa.

Hence, it is ironical for a believer in Lord Ayyappa belonging to the impugned demographic segment to insist on visiting the shrine by not only defying the prevalent traditions, but also denting and denuding the rights of fellow-believers to observe their vows of abstinence. A true devotee of Lord Ayyappa would abide by and subscribe to the applicable restrictions in deference to traditional practices.

Concept of Religious Denominations

SIX: The counsels representing the temple trustees failed to impress upon the learned Judges that the term “denomination” is alien to Hinduism. The Christian denomination is an 'identifier' to an ecclesiastical order and an associated hierarchy of local churches, which consists of congregations of affiliated members. Every denomination has a structured theological organisation with well-defined 'command-and-control structures' and 'distinctive traditions and procedures'. Members, who are inducted into the 'covenant community', profess the denominational faith and observe its practices.

The relationship between the denomination and its devotee, that is, the member, is one-on-one. Thus, Christian denominations are mutually exclusive. In other words, Christians belonging to one denomination owe allegiance exclusively to that denomination, despite being monotheistic.

Contrarily, every Hindu enjoys an inclusive, 'many-to-many' relationship with the Creator and His Embodiments. The underlying polytheistic fabric permits every Hindu to be devoted simultaneously to several Deities and frequent religious institutions belonging to diverse denominations. The religious freedom and flexibility permits Hindus to follow disparate rituals, usages, customs and practices with minimal denominational encumbrances.

Hindu Temples and Denominations

Past judicial pronouncements have straight-jacketed Hinduism by force-fitting it into a Christian paradigm. Nevertheless, if the Christian concept of “denominations” were to be imposed on Hinduism− the interpretation of the Hon'ble Apex Court in the Shirur Mațh and SP Mittal judgments serving as the gold standard− then, not just monastic orders such as Hindu mațha, but every temple would constitute a denomination.

The rationale is simple.

Each Hindu temple: (a) is designated by a distinctive name; (b) has a group/collection of (devoted) individuals with a common faith, that is, a system of beliefs, doctrines and practices based on the consecrated Deity therein, which they regard as conducive to their spiritual well-being; and, (c) consists of a spiritual/religious organisation comprising of priests, trustees, benefactors and administrators.

When viewed through the prism above, the Sabarimala Temple sure enough is a “denomination temple”. It is the polytheistic nature of Hinduism though that permits us to be inclusive and non-discriminatory in our devotion towards multiple Deities.

Secularism and Constitutional Morality

SEVEN: It is well-settled in law that “secularism” is about the separation of State and religion. Accordingly, government has to not only be non-religious, but also accord equal, non-discriminatory status to all religions.

It also widely-accepted that the judicial apparatus is one of the three branches in the 'trias politica' state.

Hence, if the lofty ideal of 'secularism' enshrined in the Constitution is to be realised/adhered to in India, the judiciary too must refrain from interfering in religious affairs, particularly practices that do not derogate, deprecate or depreciate the rights of others. Any devotee taking exception to the prevalent faith, custom and tradition is under no coercion, obligation or compulsion to follow the same.

It further follows that the judiciary is indeed duty-bound to uphold constitutional morality and legitimacy by strictly and completely adhering to the tenets of “secularism”.

Final Observations

It appears from the ratio decidendi in the Sabarimala judgment that legal submissions in favour of retaining the demographic restrictions at the temple were weak and pedestrian, if not myopic. It surely would have been worthwhile to pursue the jurisprudential angles detailed above.

But, would that have altered the outcome of the proceedings?

I surely don't have the answer. Do you?

What Exactly is the Indian Brand of Secularism?

Ever since our Constitution was adopted and we became a nation, much has been said and written about the secular fabric of India. Copious ink has flowed, many pages filled to espouse and reiterate our secular credentials ad nauseam. In fact, few television debates are complete these days without references to secularism. Autocratic, narcissistic hosts, anchors and editors of news shows shrilly cry themselves hoarse lecturing the people of this country about the need for safeguarding our secular ethos. Their acerbic polemics is often repulsive!

So, what exactly is secularism? Here's a look.

Literal Meaning of Secularism

Secularism is essentially a European concept. Contrary to popular misconception in India, secularism is not the opposite of communalism. The Merriam-Webster dictionary defines the latter as “loyalty to a socio-political grouping based on religious or ethnic affiliation”. 

According to the same dictionary, the word secular means, “of or relating to the worldly or temporal”. It implies opposition to holy, spiritual, religious, or ecclesiastical things and beliefs.

 

Historical Origin of the Concept

Its etymological origin can perhaps be traced to the birth of Christianity. After Jesus’ crucifixion and resurrection, Christianity was spread through his disciples. Despite persecution during those early days, Christianity survived in pockets across Europe. Eventually in the 3^rd Century AD, Emperor Constantine I adopted it as the religion of the Roman Empire.

Now, a fundamental dogma of Christianity is that humans are born in sin, which dates back to mythical Adam and Eve, who committed the “original sin”. The merciful God Almighty sent his only son, Jesus Christ to earth to save humanity. So Lord Jesus redeemed humans by dying for their sins on the cross; he then rose from the dead and joined his Father up in heaven. However, Christianity professes that only baptized Christians can benefit from Jesus’ sacrifice; and, non-Christians will be consigned to eternal hell on Judgment Day.

While Christianity recognizes an afterlife in heaven, the abode and Kingdom of God, it does not believe in rebirth. That Christian tenet inherently implies the existence of two worlds - a physical, temporal world and a incorporeal, spiritual world. This belief was accepted during the Middle Age prior to the Italian Renaissance in the 14^th Century, since the Church and state were intertwined. Heresy was punished under harsh laws of brutal and barbaric torture and death.

The Middle Age

For centuries, many monarchs believed they had a divinely ordained right to rule their kingdoms. At times, they even exercised control over the churches within the boundaries of their respective kingdoms. On the flip side was the Catholic doctrine that the Pope, as the Vicar of Christ on earth, should have the ultimate authority over the Church, and indirectly over kings and their kingdoms. Besides, throughout the Middle Age, the Pope claimed and exercised the right to depose Catholic kings of Western Europe, sometimes successfully, other times not.

In the 11th and 12th centuries, many popes challenged the authority of European monarchies to name or invest bishops of cities and abbots of monasteries. The conflict ended when Emperor Henry V and Pope Calixtus II signed the Concordat of Worms in 1122, which demarcated royal and spiritual powers. The outcome, vesting monarchs with limited authority in ecclesiastical matters, was a victory for Roman pontiff and his claim that he was God's chief representative in the world.

Later, in early 14^th century, Pope Boniface VIII attempted to bring both temporal and spiritual powers under the pope’s jurisdiction. In his Bull of 1302, Unam Sanctum, he stated that since the Church is necessary for salvation, it is absolutely necessary for even rulers to subject themselves to the papacy.

Many European rulers resented the autocratic papal attempt to infringe on “temporal” affairs of the state. So they denounced the move and declared Boniface VIII a heretic. The Pope retaliated by excommunicating the King of France. This infuriated king joined hands with other European rulers and the coalition army launched an attack on Boniface VIII and demanded his resignation. Despite release from captivity after three days, Boniface VIII reportedly committed suicide by bashing his skull against a wall. He was found to have "gnawed through his own arm".

The Protestant Reformation

In the early 16^th Century, some priests like Martin Luther challenged the authority of the Pope. Luther’s Ninety-Five Theses was the fountainhead of the Protestant Reformation. He was an exponent of the Two-Kingdoms Doctrine― to be precise though, he termed it Two-Governments. This doctrine enunciated that the church should not exercise worldly government, and princes should not rule the church or have anything to do with the salvation of souls. Thus, the modern conception of separation of church and state was born.

The attempt of Luther and other priests was to rid the Roman Catholic Church of certain false doctrines, systemic corruption and ecclesiastic malpractices. Protests against papal corruption began in Germany and soon spread to other parts of Europe, eventually culminating in a series of religious wars in Continental Europe between Roman Catholic House of Habsburg and Protestant princes. The Thirty Years’ War ended when the Peace of Westphalia treaties were signed.  

The main tenets of the peace treaties were that: (a) each prince would have the right to determine the religious denomination of his own state, the options being Roman Catholicism, Lutheranism and Calvinism; and, (b) Christians, living in principalities where their ecclesiastical denomination was not the established, were guaranteed the right to practice their faith in public during allotted hours and in private at will.

The treaties effectively ended the papacy’s pan-European political power. European sovereigns, Roman Catholic and Protestant alike, ignored Pope Innocent X’s protests and diktat against the Peace of Westphalia. Thus, the first step towards segregation of religion and state was taken in the continent.  

The English Reformation began in the late 1520s, when Pope Clement VII’s refused to annul the marriage between King Henry VIII of England and Catherine of Aragon. Infuriated by the Catholic Church’s decision, the King declared himself as the ruler of the new Church of England. The monarchs of England and Great Britain have retained ecclesiastical authority in the Church of England since.

After King Henry VIII usurped ecclesiastical power, strict penal laws were enacted in England against Catholics and other dissenters who did not owe allegiance to the Church of England. To escape the persecution, many dissenters sailed voluntarily to the American Colonies in the hope of religious freedom. Later the Constitution of United States was specifically amended to make it secular by banning the establishment of religion by Congress.

The Age of Enlightenment

The idea that reason, and not blind belief in a ‘revealed truth’, should guide society, began to take root in the 17^th Century. The concept of secularism is often credited to the writings of English philosopher John Locke, who argued that the government lacked authority in the realm of individual conscience, as this was something rational people could not cede to the government for it or others to control.

Enlightenment writers, including Voltaire, often stressed anti-clericalism and attacked the Catholic Church. The idea gained support from the anti-church violence during the French Revolution. This led to the process of separation of Church from state. Such separation is called secularism. The George Jacob Holyoake was the first to coin the term “secularism” in 1851.

Today, most western democracies are ‘secular’, i.e. the Church cannot push its agenda through state power. The long and short of it is that secularism implies the exclusion of religion in the running of government. 

Yet ironically, many western democracies still grant Christianity preferential treatment. For example, the German Constitution guarantees that the Christian philosophy is taught in government schools.

Islam and Secularism

The “Hadith” in Muslim religious use is often translated as "prophetic traditions"; it refers to the corpus of reports of the deeds, sayings and teachings of Prophet Muhammad. The Hadith literature was compiled from oral reports that were in circulation in society after the death of the Prophet. The Hadith forms the basis of 'Shariah' Law, which deals with several topics including, crime, politics and economics.

Many Islamic scholars  believe that Islam fuses religion and politics, with normative political values determined by the divine texts. Many scholars denounce secularism as strictly prohibited in Islamic tradition. It is argued that modernist efforts at secularizing politics stems from ignorance, unbelief, apostasy and atheism.

Post World War II, secularism had wide currency in the Muslim world. However, the spread of Islamic revival made leaders, e.g., Hosni Mubarak of Egypt, more repressive and authoritarian in order to protect secularism. The ripple effect of repression was that Islamic society became opposed to secularism. Secularism is also associated with military regimes, such as those in Turkey and Algeria. Military forces in those countries could use their power in undemocratic ways in order to ‘protect secularism’. In some countries, the fear of Islamist takeover via democratic processes has led to authoritarian measures against Islamist political parties.

Yet, there are many Muslim-majority countries in Asia (e.g., Uzbekistan, Kazakhstan), Africa (Mali, Senegal), and Eastern Europe (Turkey, Albania) which are secular.

Secularism and Hinduism

The Hindu “varNa” system, i.e., social class system based on occupation, was inherently secular. So, "brahmaNa" was a distinct class from "kshatriya (i.e., ruler and warrior)". The former class included priests and preachers, while the latter were rulers and warriors.

Thus, separation of religion and rulership or governance was accomplished. Faith expressed itself freely in a multitude of ways. Furthermore, the dominant faith of the Indian people never had a central seat of power that dictated dogmas that conflicted with the sovereignty of the ruler.

The Indian Constitution and Secularism

The term “secular” appeared only once― under Article 25, Clause 2, sub-clause (a)― in the Constitution of India ratified and adopted by the Constituent Assembly of India in 1950.The term was subsequently added to the Preamble of the Constitution through the 42^nd Amendment to the Constitution. Hence the Preamble declares that India is constituted into a “Sovereign Socialist Secular Democratic Republic”. As an exception, the term “Secular” in our Preamble does not apply to the State of Jammu and Kashmir.

The term is not defined either in the Constitution or in any other statute or enactment. 

Nevertheless, “secularism” has been held― in the landmark Kesavananda Bharati Case― to be a key component of the basic of structure of the Constitution.

Despite the Constitution being secular, religion is an integral part of the Indian state. Special provisions and concessions for various religions and denominations of faith have been routinely made. Many government schemes and programmes are wholly and squarely in the realm of faith, belief and religion. In other words, the Indian State seems to practise a brand of secularism that is very different from that practised in the West. This is so manifest perhaps in our polity’s endeavour over the years to subserve liberty of thought, expression, belief, faith and worship enshrined in our Constitution.

So then, what exactly does “secularism” mean in India? The body of case law sheds tremendous light.

Interpretation of Secularism

In Perunchithiranar v. State of Tamil Nadu (AIR 1986 Mad 83), the Madras High Court observed that a secular state is “non-religious” and not “irreligious”. In the view of the Court, a secular state cannot have or show a lack of respect for religion. In other words, India, as a secular state has to show SENSITIVITY towards the sentiments of the religiously inclined.

The Supreme Court of India in SR Bommai v. Union of India (AIR 1994 SC 1918) observed that “...equal treatment of all religious groups...” is an essential part of secularism enshrined in our Constitution. Then again, in the Perunchithiranar case, the High Court of Tamil Nadu held that the government “should not be wedded or bound to any one religion, but should give equality of treatment to every religion practised in the country.” Indeed, secularism in India is based on the concept of EQUALITY of all religions.

In an interesting case that came up before the Andhra Pradesh High Court― that of Atheist Society of India v. Government of Andhra Pradesh (AIR 1992 AP 310),― it was held that secularism means “...a sense of basic fraternity, fellowship...among all the citizens”. Peaceful CO-EXISTENCE and CARE for each other is the essence of fraternity and fellowship.

In the Atheist Society of India case, it was further stated that secularism means “...a sense of...UNITY among all the citizens.” In the SR Bommai case too, the Apex Court held that the goal of secularism has been accepted because “it is our historical legacy and a need of our national unity and integrity but also as a creed of UNIVERSAL BROTHERHOOD and humanism.”  

Then again, in the Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra (AIR1975 SC 1788) judgment, the Supreme Court held that secularism is “a system of utilitarian ethics, seeking to maximise human happiness...”  Indeed, such a “system” can only be predicated upon the existence of a fabric of LOVE and compassion for each other within society.

The Hon’ble Supreme Court in the SR Bommai case asserted that “...religious tolerance... [is] an essential part of secularism enshrined in our Constitution.”  Of course, in a tolerant society there is ACCOMMODATION of all faiths, beliefs and religions with neither bigotry nor persecution.

Finally, in the State of Karnataka v. Dr. Praveen Bhai Thogadia [(2004) 4 SCC 684], the Supreme Court has held that the “State should have no religion of its own and no one could proclaim to make the State have one such or endeavor to create a theocratic state.”  This imposes a RESPONSIBILITY on the State to ensure that there is no dominant or privileged religion within its territory. That obligation implies that the state has not only to treat all religions with equal RESPECT, but also ensure there is RESPECT for all religions within society.

Concluding Remarks

The sum and substance of the foregoing case law research is that secularism the State will not associate itself directly with any religion.

However, in India the concept is much broader that the “separation of state and religion” envisaged in Europe. It entails the S-E-C-U-L-A-R tenets, namely: (a) SENSITIVITY towards diverse faiths; (b) EQUALITY of religions; (c) peaceful CO-EXISTENCE; (d) UNITY and UNIVERSAL BROTHERHOOD; (e) LOVE and compassion; (f) ACCOMMODATION of all faiths; and, (g) RESPONSIBILITY on the State to propagate RESPECT for all religions.

Indeed, given the expansive definition of secularism in India, public ridicule of somebody’s faith, belief or religion is taboo and intolerant. That philosophy stems from the sense that the Indian State accords a certain REVERENCE for religion. On the contrary, in the Europe, secularism conceptually entails INDIFFERENCE, perhaps even IRREVERENCE to religion in the affairs of the State.

In other words, while the secular Indian state is aware and COGNIZANT of the existence of religion; secular European states are intentionally INCOGNIZANT of religion in the public sphere.

SELF-DISCLOSURE: I am a Hindu by birth. At a primal, emotional level, I do practise rituals with devotion. At a spiritual and philosophical level, I firmly believe in the "एकं सद्विप्रा बहुधा वदन्ति (Truth is one, Sages describe it in various ways)" doctrine and the universality of the Supreme Truth. Hence, I have no qualms about invoking the blessings of the Divine regardless of religious denomination. But, at a logical and scientific level, I am a rationalist who has difficulty accepting blindly the existence of a Supreme Being. Overall though, I do consider “India” as my God; “Indianism” is my religion and the “Indian Constitution” as my sacred book. So then, depending on the context, I switch from reverence for a/all God(s) and belief in equality of all religions to equal contempt for them all.