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The REAL issue of SABARIMALA

In the last two weeks, the Supreme Court heard arguments about the controversy surrounding the entry of women to the Sabarimala temple (Bar and Bench, 2018). The judgment will resolve, if not bring to an end, the controversy about whether or not women aged between 10 and 50 can have access to Sabarimala. Women worshipers and gender equality advocates have long protested and challenged the exclusion of women to Sabarimala. To them, the exclusion in Sabarimala is yet another example of sexism and gender-based discrimination.

In the Court, the petitioners seeking to allow women entry focused on this argument. Religion, they claimed, cannot be a justification for continuing the unjust treatment women have received in India. On the other side, the Devasom Board and various campaign groups have argued passionately for religious freedom. For them, the issue at Sabarimala goes to the very heart of the relation between the state and the religion. The practices at Sabarimala were based on deeply held beliefs about how Lord Ayyappa, the celibate deity to whom the temple is dedicated, should be worshiped. State intrusion would threaten the ability of religious practitioners to follow their own deeply held beliefs.

A False Contrast

It is therefore no surprise that the controversy around Sabarimala is portrayed as a clash between two versions of India—the traditional-conservative India and the modern-liberal India. The former emphasises and values the religious roots, traditions and customs, while the latter emphasises and values the secular, progressive and feminist India. One values religious freedom, the other values gender equality.

The problem is that no side can win this contest outright. Both religious freedom and gender equality are values widely shared and enshrined in the Indian Constitution. The petitioners would need to explain why religious freedom should extend to Sabarimala. The respondents would need to explain why gender equality does not extend to Sabarimala. Unfortunately, this engagement has not happened with sufficient efficacy of arguments before the Court. The petitioners asserted that constitutional values and not religious values have to count. However, the case concerned the question what religious institutions, as opposed to state institutions, can and cannot legitimately do. The respondents asserted that the practices as Sabarimala are deeply held and essential parts of their religion. However, the same can be said about the women wanting to enter Sabarimala. They, too, want to worship Lord Ayyappa and are constrained in their ability to do so.

This contrast is particularly interesting. It indicates that there is a genuine conflict between claims to religious freedom in this case. If women are barred from entry, these women cannot worship at Sabarimala. Their claims to religious freedom are not fulfilled. If women are allowed entry, worshippers who genuinely believe that the temple is impure will no longer be able to worship there. Their claims to religious freedom would not be fulfilled. It is this conflict which shows that the core submissions of both sides are insufficient. Simply asserting the right to worship for one side is not enough. The conflict also shows why Sabarimala is different from other cases of discrimination. When women were excluded from education or military service, it was possible to have men and women studying or fighting side by side. In Sabarimala this is not possible. For the believer who thinks Sabarimala will become impure, the act of worship will lose part of its meaning.

A Way Out

Can this deadlock be broken, or will the Supreme Court be forced to simply choose one of the two sides? If this was the case this would have serious consequences for the legitimacy of the Supreme Court. If decisions of such monumental importance boil down to a simple choice between two political views, should this not be rather left to Parliaments and elections? It would be inappropriate for judges to simply declare which version of India they belong to.

Fortunately, the outcome may not be so bleak. There is a way of recasting the issue in Sabarimala that does not require us to contrast two irreconcilable versions of India. To see this, we need to understand that religion has an individual and a collective aspect. The individual aspect contains prayers and the following of religious texts. Most followers of a religion choose to practice it collectively and for many this gives an additional meaning to community. Until now, we have only canvassed arguments based on the individual aspect of religion. Perhaps the answer can be found in the communal aspect of religion.

Discrimination Without the State

The question then becomes whether associations, like religious groups, have the power to discriminate. It is clear that the state cannot discriminate and has to treat every citizen with equal concern and respect. But it is not the case that this demand applies to non-state actors too. Non-state actors are bound only to a minor extent by the demands of the constitution. This is called horizontal effect. It is a common misconception that the Indian constitution does not grant for horizontal effect of fundamental rights. This is contradicted by the very text of the constitution. In Article 15(2) it provides that no citizen shall be discriminated against in his or her access to shops, restaurants, hotels, and places of entertainment. In effect this is providing for horizontal effect of the right to equality. Similarly, Article 17 in abolishing untouchability provides for horizontal effect. Practices of private individuals associated with untouchability are prohibited by the constitution. To say that the Indian constitution does not have any form of horizontal effect is therefore incorrect.

To what extent can intimate associations discriminate? Some forms of discrimination seem permissible to us. A hypothetical Kerala Women’s Lawyer Association can exclude men from membership and access to their club house. An advocacy group for victims of sexual assault can exclude men, and so on. Other forms of discrimination seem impermissible to us. An employer of a small business who does not employ women. A business association which excludes on basis of caste, and so on.

The problem is where to draw the line between these two different kinds. The United States Supreme Court has considered this question in a few cases. The results are mixed. In Board of Directors, Rotary International vs Rotary Club of Duarte it struck down the exclusion of women from the Rotary club charity. It held that the size, purpose, selectivity, and exclusivity of the organisation have to be taken into consideration when determining this question. These factors determine the intimacy and the purpose of the association. Given that the Rotary club is not a particularly intimate association, forcing the admission of members would not interfere much with the purpose of the association. In Boy Scouts of America vs Dale, the Supreme Court reached the opposite conclusion.  It upheld the exclusion of homosexuals from the Boy Scouts of America, a popular youth organisation. The opposition to homosexuality was seen as an expressive message and thus integral to the self-understanding of the Boy Scouts.

Religions and Associations

One might wonder about the sudden shift from religion to associations. Is this not a bad comparison? Is religion not special? The answer is no. In a secular state like India, religion cannot have a special status. Secularism requires neutrality of the state between different religious groups including non-believers. Any special treatment of religion violates this last requirement. A state cannot honestly claim to be neutral in religious matters if it favours religion over non-religion.

Saying that religion is not special does not amount to saying that religious freedom has no space. What it does amount to is saying that religious beliefs are not more important or worthier of protection than equivalent beliefs of non-religious people. The Indian constitution recognises this. Article 25, which provides for religious freedom, says that ‘freedom of conscience and free profession, practice and propagation of religion’ are protected. The rights of religious practice are protected alongside and because they constitute acts of conscience. The right of religions as associations to manage their own affairs is similarly protected by the constitution. Article 26 gives religious denominations, as a collective, the right to manage its own affairs.

But the constitution also sets limits to the ability of religions to manage their own affairs. Article 25(2b) carves out exceptions for the right to religious practice. The provision is a so-called ‘enabling clause’, which allows the state to take certain kinds of action. It allows action that provides for ‘social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus’. The Kerala government has made a legislation that is claimed to fall under this enabling clause. The Kerala Hindu Places of Worship (Authorisation of Entry) Act 1965, provides for entry of all Hindus to public temples. The question is then whether this Act falls indeed under the enabling clause of Article 25(2b).

The Real Issue in Sabarimala

We have now arrived at the real issue in Sabarimala. How should we read the enabling clause in Article 25(2b)? Historically, the clause was intended to abolish discrimination against the lower castes. This is because Hinduism should not have been under the exclusive control of Brahmins. If this reading is adopted, we should construe 25(2b) narrowly. Since historically it was never intended to apply to women, the entry ban for women stands.

History, however, cannot settle this question. This is because interpreting laws by their original intent is incoherent(?). The many framers of the constitution had different intentions. They disagreed about how the constitution should be worded and how it should be applied. A single member of the Constituent Assembly may have conflicting intentions. The member might have had specific intentions about specific cases, if he or she cared to think about such cases. But the member also had general intentions. However, the framers wanted to lay down general political principles. They believed in the ideals of equality and religious freedom. If we now come to believe that equality and religious freedom tells us to allow temple entry for women, have they not also intended this in a way?

History cannot be the last word. The Indian constitution is a living instrument which takes into consideration political history and moral principle. But even Ronald Dworkin, the defender of the moral reading of the constitution has observed (Dworkin, 1996) that “constitutional interpretation must begin in what the framers said.” We must determine whether there are good reasons to depart from the historical understanding.

This means we must decide the difficult question to what extent associations are allowed to discriminate. If we take the extreme view that they always can, we will uphold the ban. But we could then not explain why the Indian constitution contains some forms of horizontal effect. Shops, restaurants, and cinemas cannot discriminate. If we take the opposite extreme view that they never can, we will strike down the ban. But we could then not explain why a Women’s Lawyer Association can exclude men. The truth will lie in between these two extremes.

Whatever the Supreme Court will decide, two points are worth stressing. First, the dispute in Sabarimala is not a clash between two forms of India. Liberal and conservative Indians can and should engage in a debate about the limits of private discrimination. Wherever the line is drawn, it will not be that one side has simply been defeated. Second, the case in Sabarimala has implications beyond religion. The Court should find principles appropriate for the subject of private discrimination. What these principles should be is a difficult question. This, in fact is the real issue in Sabarimala.

References

Bar & Bench, 2018. Entry of Women into Sabarimala: Live Updates from the Supreme Court, Bar & Bench, July 31.

Dworkin R., 1996. The Moral Reading of the Constitution, New York Review of Books, 43(5).

Supreme Court of the United States, 2000. Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

__________________, 1987. Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987).

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