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The Hindu Notes for 01st October 2018

An ongoing quest for equality

The Supreme Court will soon have the opportunity to consider the differing opinions in the Sabarimala verdict

On September 28, the Supreme Court delivered a 4:1 verdict, in Indian Young Lawyers Association v. State of Kerala, throwing open the doors of the Sabarimala temple to women of all ages. At stake were several thorny questions. How deep must the judiciary’s inquiry go in deciding whether to intervene in matters of religion? Should the court disturb ethical choices made by a community of believers? How must the integrity behind these practices be judged? Are religious exercises susceptible to conventional constitutional standards of justice and equality?

  • As the four opinions delivered by the court show us, these questions are open to diverse interpretations. While the majority agreed that women of all ages should be allowed to freely access the Sabarimala temple, each of the court’s judgments, including Justice Indu Malhotra’s dissenting opinion, speaks to a different, and constitutionally plausible, vision.
  • How the court chooses to take forward the ideas professed here will prove hugely telling. Will judges continue to don ecclesiastical robes in testing what manners of religious practices deserve constitutional protection? Or will the court steer itself towards a more radical, yet constitutionally consistent, path, by predicating its analysis on equal concern, by breaking, as Justice D.Y. Chandrachud wrote in his concurring opinion, the “shackles of social hierarchies”?

    • The scope of Article 26

  • The respondents in Indian Young Lawyers Association, including a clutch of intervenors, justified the ban on entry of women chiefly at two levels. First, the temple, they argued, enjoyed denominational status under Article 26 of the Constitution, which allowed it to determine for itself the manner in which it managed its religious affairs. Second, prohibiting women of menstruating age from entering Sabarimala, they contended, is supported by the temple’s long-honoured custom: since Lord Ayyappan is a “Naishtika Brahmachari”, allowing women aged between 10 and 50 years to enter the temple, it was claimed, would affect the deity’s “celibacy”. What’s more, this custom, the Travancore Devaswom Board, which administers the temple, further asserted, was supported by Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which states, “Women who are not by custom and usage allowed to enter a place of public worship shall not be entitled to enter or offer worship in any place of public worship.”
  • The first of these arguments was rejected outright by the court’s majority. Chief Justice of India (CJI) Dipak Misra, in his opinion written for himself and Justice A.M. Khanwilkar, found no doctrinal or factual support for the temple’s claim for denominational status. Justices R.F. Nariman and Chandrachud concurred. The devotees of the Sabarimala temple, they found, were in no way distinct from the larger community of Hindu believers. Consequently, the court also repudiated the validity of Rule 3(b), which, it said, was, at its core, discriminatory towards women.
  • Justice Malhotra dissented. Since no person actually offended by the rule had approached the court, the public interest petitions, she ruled, were not maintainable. Her concerns are undeniably valid and must animate future cases. Here, however, given that the challenges to the practice had been entertained as far back as in 2006, and given that specific questions of far-reaching importance were posed to the Constitution Bench by reference, the majority quite correctly chose to deliver a verdict on merits. In any event, Justice Malhotra also ruled that the Sabarimala temple constitutes a separate religious denomination, and, therefore, the temple’s administrators were at liberty to make customary exceptions in matters of religious practice. This freedom, in her opinion, extended power to the temple to proscribe women from entering its precincts.

    • Essential practices doctrine

  • Yet, much as the differing views between the majority and the dissenting opinions on the maintainability of the petitions and the denominational status of the temple are stark, the real nub of the controversy is elsewhere. It lies in Justice Malhotra’s withering and principled critique of the essential practices doctrine, through which the court has virtually assumed theological prerogative.
  • Ordinarily, in determining whether a purportedly religious command is constitutionally protected, the courts have sought to test whether such a belief is essential to that religion. Here, for instance, CJI Misra found that the practice of excluding women aged between 10 and 50 years from the Sabarimala temple is dispensable, in that the “nature” of the Hindu religion would not be “fundamentally altered” by allowing women to enter the temple. Although an examination of this kind is strongly backed by precedent, Justice Malhotra was especially critical of the approach. In her belief, the power of judicial review ought not to accord to courts the authority to judge the rationality of a matter of faith. “The issue of what constitutes an essential religious practice,” she wrote, “is for the religious community to decide.”
  • In this, the value in her opinion can scarcely be doubted. After all, the essential practices doctrine has allowed the Supreme Court to arrogate to itself the powers of a religious pontiff. But, equally, as Justice Malhotra notes, there may well be practices that are so pernicious and oppressive which might well demand the court’s interference. These, in her words, would include a “social evil, like Sati”. Ultimately, therefore, the dissenting opinion begs a question. It leaves us wondering how far the right to freedom of religion can really extend. And to what extent a group’s collective liberty can trump an individual’s equal right to freedom of religion. Would, for example, denial to women of the right to serve as priests, or to be ordained as bishops, be considered oppressive?
  • Here, Justice Chandrachud’s judgment offers an appealing way forward. The assumption by the court of a religious mantle, he admitted, has led to a muddling in the court’s jurisprudence, and, as a result, significant constitutional concerns have been skirted. What needs answering, in his belief, is whether the Constitution “ascribes to religion and to religious denominations the authority to enforce practices which exclude a group of citizens”. The court, therefore, he has suggested, must look beyond the essential practices doctrine and examine claims by applying a principle of “anti-exclusion”. Or, in other words, “where a religious practice causes the exclusion of individuals in a manner which impairs their dignity or hampers their access to basic goods, the freedom of religion must give way to the over-arching values of a liberal Constitution.”

    • A way forward

  • Ultimately, therefore, for Justice Chandrachud, the Constitution must be seen as a document that seeks to bring about a transformed society. When a religious practice goes so far as to deny women equal status in society, when notions of purity and pollution are employed to perpetuate discrimination, the Constitution ought to mandate a shattering of the conventional divides between the private and the public.
  • The real test, in Justice Chandrachud’s opinion, is to assess whether an exclusion founded on religious belief, essential or otherwise, encroaches on a person’s basic right to dignity. Or in other words, discrimination couched as plurality cannot be allowed to undermine the Constitution’s basic “quest for equality”.
  • The Supreme Court will soon have the opportunity to consider, once again, the differing visions offered in Indian Young Lawyers Association. For instance, when it hears arguments on the correctness of its 1962 judgment striking down the Bombay Prevention of Excommunication Act of 1949, which recognised the Dai-al-Mutlaq’s powers to excommunicate persons from membership of the Dawoodi Bohra community, the court might well want to refer the case to a bench of seven judges or more and re-examine altogether the continuing validity of the essential practices doctrine. When it does so, it might also want to heed Justice Chandrachud’s words that “the Constitution exists not only to disenable entrenched structures of discrimination and prejudice, but to empower those who traditionally have been deprived of an equal citizenship.”
  • Suhrith Parthasarathy is an advocate practising at the Madras High Court

  • In Parliament’s court

    It is time for legislation to thoroughly clean up electoral politics

  • While the issue of candidates facing criminal charges getting elected to Parliament and State legislative Assemblies is often raised, initiatives to minimise the problem, if not eliminate it completely, have been rather slow. One had hoped that the judiciary would show the way forward with regard to preventing such candidates from contesting elections, but in a recent judgment, the Supreme Court has left it to Parliament to legislate on the subject.
  • The expectation was not unreasonable, as some important changes in the electoral laws — making it mandatory for candidates to submit an affidavit with full disclosure of criminal cases, if any, and details of their asset and income — were made mandatory by the judiciary. The most recent change, i.e. providing an option to voters to exercise None of the Above (NOTA) in case they do not want to vote for any of the candidate contesting an election, was also introduced by the judiciary in 2003 on the basis of the PIL filed by People’s Union for Civil Liberties.
  • The court mentioned that it was not within its powers to disqualify politicians facing criminal cases from contesting election, but recommended that Parliament enact a strong law. However, the court made it mandatory for political parties and candidates themselves to make public disclosure through print and electronic media.
  • But there is serious doubt whether this judgment would in any way help in making our politics cleaner than before. The chances of Parliament acting fast on this issue are dim. The reasons are simple and obvious. No political party is free of this problem. The use of muscle power along with money power is a weapon used by all political parties to maximise electoral gains. In such a scenario, any move to ban candidates with a criminal record from contesting elections would mean political parties inflicting self-harm.

    • What data show

  • Data from the Association for Democratic Reforms (ADR) indicate that 179 out of the 543 elected Members of Parliament in the present Lok Sabha have some kind of criminal case pending against them. While it is true that some of these may be of a frivolous nature, it is also true that many of these cases concern allegations of their involvement in serious crimes. In the case of over 100 MPs, the cases were of a very serious nature such as crimes against women and kidnapping. There seems to be very little improvement in this regard in the last five years. In the previous Lok Sabha (2009), 163 had criminal cases pending against them, many of which were of a serious nature. The profile of members of the Upper House is no better; of 228 members of the Rajya Sabha for whom data could be analysed, 20 have cases of serious crimes pending against them.
  • While political parties raise concern about candidates with a tainted background contesting elections and getting elected, none of them come forward to set an example for others when it is time to act. Among the Bharatiya Janata Party’s MPs (Lok Sabha and Rajya Sabha), 107 (32%) have criminal cases pending against them. Of them, 64 (19%) have cases of serious crimes pending against them. The Congress is only a shade better than the BJP; 15 MPs (15%) have criminal cases pending against them, of whom eight (8%) have cases of serious criminal offences pending against them. There is hardly any difference between the national and regional parties in this regard. In the Shiv Sena, 18 MPs (86%) have criminal cases pending against them, of whom 10 (48%) are alleged to be involved in serious criminal cases. Of all MPs, six each of the Nationalist Congress Party (55%) and the Rashtriya Janata Dal (67%) have serious criminal cases pending against them. Going by the ADR’s estimates, there are more than 1,500 MPs and MLAs in Parliament and State Assemblies with criminal cases pending against them.
  • The issue is far more important and serious than the attention being paid to it by the policy makers. While the Election Commission has limited powers to legislate on such laws, it is only Parliament which can legislate to bring about the desired change. Public opinion too is not firm on this. For example, a survey conducted by the Centre for the Study of Developing Societies, found that opinion was divided when people were asked whether they would be willing to vote for a honest candidate who may not get their work done, or a tainted candidate who could get their work done.
  • Sanjay Kumar is a Professor and currently the Director of the Centre for the Study of Developing Societies (CSDS), Delhi. Amrit Prakash Pandey is a Research Assistant with Lokniti: A Research Programme of CSDS, Delhi. The views expressed are personal

  • Gandhi: a fox or a hedgehog?

    He was a man who looked for a harmonious universe, but he was also a pragmatist

  • As the world prepares to celebrate Mahatma Gandhi’s 150th birth anniversary in 2019, opinions and views about his person and his non-violent technique of struggle remain deeply divided. For some, he was a puritanical, conservative critique of modernity. For them he created and perpetuated unrealistic and confused ideas about economic development and technological progress. For his admirers, Mohandas Karamchand Gandhi was a man of spiritual truthfulness and democratic action, both at the public and personal levels, with a unique method of struggle that combined political pragmatism with ethical integrity. Some among these admirers evaluate Gandhi’s impact on human history as being as significant as that of Jesus, Buddha and Karl Marx.

    • Two Gandhis

  • Thus, in the minds of people around the world, Gandhi represents two different and contradictory characters. The first Gandhi is the political Gandhi who fought against British colonialism and is the father of the modern Indian nation. This is the man Albert Einstein lauded as “a leader of his people, unsupported by any outward authority, a politician whose success rests not upon craft nor the mastery of technical devices, but simply on the convincing power of his personality.”
  • The second Gandhi is the Ashramic Gandhi who is more of a mystic than a politician, who used fasting as a method of struggle, and who Rabindranath Tagore considered as the “Mahatma”, the “Great Soul”.
  • To be sure, Gandhi certainly deserves the accolade as a courageous fighter, a deep thinker, and a great leader of men and ideas. But if anything, Gandhi was a man of experimentation, a man who insisted on the quest for truth. Therefore, it should not come to us as a surprise that the literal meaning of satyagraha is “asserting for truth”. One does not have to go far to find in Gandhi’s autobiography, The Story of My Experiments with Truth, the idea that life is nothing but a spiritual experience with truth, and a struggle against all forms of untruth and injustice. As such, Gandhi claimed that his life was his message, simply because he extended his practice of satyagraha to all walks of life. Gandhi, in short, was a leader looking for a spiritual cause. He found it, of course, in his non-violence and, ultimately, in independence for India.
  • But there is more to Gandhi which makes him a political thinker and a relevant social reformer. Gandhi was a dialogical thinker who was open to other horizons of thinking. He firmly believed that the spirit of genuine reciprocity and solidarity is not just a moral requirement, but also a geopolitical necessity. That is why Gandhi rejected the idea that there is one privileged path to god. He also believed that all religious traditions are an unstable mixture of truth and error. Finally, he encouraged inter-religious and inter-cultural dialogue, so that individuals could see their faith and culture in a comparative and critical reflection of the other. As such, Gandhi considered interculturalism as a call for simultaneous awareness of commonalities, acceptance of differences, and recognition of shared values. Interestingly, Gandhi was a political thinker and a social practitioner who was constantly experimenting with modes of comparative and cross-border cultural constellations. The point here is that in Gandhi’s political thinking, the experience of freedom derives not only from constitutional rights but mainly from the diverse modes of participation of the individual in a common humanity.
  • Today, many around the world consider Gandhian ideas as impractical, not to say utopian. However, Gandhian ethics of social and political reconstruction are more relevant than ever, since they represent an act of self-transformation of humanity rather than an illusory dream of a political leader. Gandhi wanted to change the values that govern the social, political and economic activities in human society. Significantly, like Leo Tolstoy, Gandhi believed that decentralised politics and an egalitarian economy function better at the level of micro-communities, where citizens can operate in relations of reciprocity and mutuality. For both Gandhi and Tolstoy, it was clear that neither society nor the individual can live without a moral vision of the world.

    • Who wins?

  • The Russian-British social and political theorist, Isaiah Berlin, considered Tolstoy both a fox, which knows many things, and a hedgehog, which knows one big thing. He noted: “Tolstoy was by nature a fox, but believed in being a hedgehog, that his gifts and achievements are one thing, and his beliefs, and consequently his interpretation of his own achievement, another, and that consequently his ideals have led him, and those whom his genius for persuasion has taken in, into a systematic misinterpretation of what he and others were doing or should be doing.” Similar but also different, Gandhi and Tolstoy were united in their moral and political dreams of changing humanity. As a dreamer who looked for a harmonious universe, Gandhi was a hedgehog, but as a pragmatist who had a devastating sense of reality, he was a fox who knew many things about the insane world of human beings filled with hatred, revenge, greed for power and violence. The question is, in history who wins? The fox or the hedgehog?
  • Ramin Jahanbegloo is Director, Mahatma Gandhi Centre for Peace, Jindal Global University, Sonipat

    • The road to e-vehicles

    Electric vehicles will reduce fuel bills and are an integral component of the smart cities project

  • Jharkhand Chief Minister Raghubar Das recently announced that his government has introduced electric vehicles for official use. While 20 vehicles have been acquired for the first phase, another 30 are expected to be added to the fleet in the coming weeks. It has also been reported that 12 charging stations have been set up in Ranchi so far, and several more are slated to come up.
  • In the current scenario of soaring fuel prices and the spectre of climate change looming large over the planet, it is a welcome development that a State government is taking the lead in switching to e-vehicles. Not only does this reduce the burden of fuel bills on the exchequer, it is also in sync with Prime Minister Narendra Modi’s strong pitch in favour of electric vehicles at the recently held Global Mobility Summit in New Delhi. “Clean mobility powered by clean energy is our most powerful weapon in our fight against climate change,” Mr. Modi had said as he batted for investments in electric vehicles and charging stations.
  • In this context, it is well known that government officials are tremendous guzzlers of fossil fuel. If ministers and politicians are taken as a single category of consumers, their per capita and per kilometre consumption of fossil fuel is likely to be many times higher than that of most ordinary users, given their penchant for moving around accompanied by lengthy convoys of gas-guzzling escort vehicles.
  • One might expect that in a real democracy, public servants, with some exceptions, would typically use public transport, which also happens to be another thrust area identified by the Prime Minister as integral to the future of mobility in India. But if this is too unrealistic an expectation, the least they could do is to exchange their petroleum-based vehicles for electric ones.
  • If other States and the Centre were to follow the example set by Jharkhand, it would have two positive spin-offs: first, it would encourage the spread of a transportation infrastructure specific to e-vehicles; and second, it would spur the early adoption of e-vehicles by first-time buyers, generating consumer momentum for India’s stated goal of ensuring that by 2030, all public transport and 30% of private vehicles are electric. This is not far-fetched as quite a few countries, such as Norway and France, already have a substantial percentage of their vehicles running on either electricity or alternate fuels.
  • Electric vehicles are also an integral component of smart cities, as they are an automatic assumption in frameworks of smart transportation. Meanwhile, the government needs to speed up the formulation of rules for e-vehicles as a category, and come up with an India-specific road map for a transition that needs to be smooth if only because it is inevitable.
  • The writer is the Social Affairs Editor at The Hindu