When the justice system starts to look like an extended arm of the executive, the society suffers.
Almost 200 years ago the British government passed a law in 1829 banning the practice of Sati that entailed burning a widow on the pyre of her dead husband. At the time, hardcore Hindus came on the streets to protest against what they called British interference in Hindu tradition and also excommunicated Hindu reformer Raja Ram Mohan Roy for leading a movement to outlaw the inhuman practice. Despite this reaction, the British government did not budge.
In the late 19th century, social reformer and educationist from the western Indian state of Maharashtra Savitri Phule led a campaign for women's education as well as the emancipation of the Hindu Dalit Mang community. Her efforts also saw the establishment of the first girls’ school in India despite strong resistance from hardliners.
Similar social reform was attempted in South India in late the 19th and early 20th centuries, leading to an undermining of the caste system to empower those living at the margins of Hindu society.
In post-independence India, Prime Minister Jawaharlal Nehru introduced the Hindu code bills that codified the community's personal laws, a progressive step that brought Hindu personal law at par with modern law in terms of gender parity and redefining marital and property laws.
This reformist measure was bitterly opposed by the Jan Sangh, earlier incarnation of the Bharatiya Janata Party (BJP) and its paternal organisation Rashtriya Swayamsevak Sangh (RSS). Nehru saw the codification of the personal law of the majority community as a first step in establishing a modern and secular India.
So in 2019, it is preposterous to find India again debating whether or not women should be allowed to enter the Sabarimala temple. The Indian judiciary has been citing religious sentiments of the Hindu community as the reason to revisit a judgment that the apex court had itself delivered in September 2018, allowing unrestricted entry of women in the temple located in the state of Kerala.
The September 2018 ruling was a majority judgement ruling that women irrespective of what age they were should be allowed to enter the temple and that “any exception placed on women because of biological differences violates the Constitution” and was against its Article 14 that guarantees right to equality and Article 25 that ensures freedom of religion. Women celebrated that verdict.
This decision nullified the Kerala High Court verdict of 1991 that imposed a ban on the entry of women from the ages of 10 to 50 in the temple on grounds that the celibate deity would get distracted by the presence of these women in the temple's sanctum sanctorum.
The 2018 verdict led to huge protests in Kerala with the BJP seeing in the occasion an opportunity to exploit religious sentiments and create a movement similar to the one that it had done in the 1980s in North India with respect to the Babri mosque in Ayodhya. Politics around the mosque at the time had led to phenomenal growth for the party in centre of India and its campaign to build a temple at the site where the 16th century mosque stood polarised the entire nation. However, the Hindu consolidation secured BJP power in major North Indian states and finally paved the way for its ascension to the throne in Delhi.
On the other hand, South India has been evading BJP’s attempts at making inroads. With Sabarimala, the party saw a political opening and mobilised resistance to the court’s 2018 ruling. Although it could not make much headway as entrenched political players like Congress and the communist parties also played their cards deftly. And as a result, in the last parliamentary elections, the BJP could not open its electoral account in Kerala.
In the meantime, the Supreme Court accepted a review petition to the Sabarimala verdict of 2018 and agreed to revisit its judgment. Failing to evolve a consensus on the matter last week, the five-judge bench decided to refer the matter to a seven-member larger bench. Justice (retd) Ranjan Gogoi who as chief justice ruled on the review said restrictions on women in religious places weren't limited to Sabarimala alone, and they were prevalent in other religions too, adding that the larger bench would decide all such religious issues relating to Sabarimala, to the entry of women in mosques, and the practice of female genital mutilation within certain Muslim sects.
This comes months after the BJP government enacted a law making the utterance of triple talaq a criminal offence punishable by up to three years in jail. It may have been an attempt to attract votes from Muslim women, but was broadly interpreted as an attempt to create division within the Muslim community.
Many political analysts question the zeal of the BJP on criminalising the utterance of triple talaq, already declared unconstitutional by the Supreme Court in 2017, when it makes no such attempts to touch, let alone open up to criminal offences, the personal laws of other groups in India. It is also important to ask that if the BJP is keen to address the issue of gender injustice in the Muslim community, why does it oppose demands for gender equality within Hindu society?
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What is disquieting is that the justice system also appears to be taking a pro-majoritarian tilt in clubbing the Sabarimala case, which had already been decided in a ruling that upheld the Constitution, with the practices of other religions, and therefore calling for fresh deliberations. The judiciary should be a progressive pillar of the state that should adjudicate any case keeping in mind the spirit of the Constitution.
The latest Sabarimala development came days after a verdict in the Ayodhya case where the site was awarded to Hindus. Many in India saw that as a setting aside of the constitution's secular spirit by a judiciary appearing to assuage majoritarian sentiment.
This is not the way to go for the world's biggest secular democracy. The rise of majoritarian politics in India is accentuating not only religious but also social and gender fault lines and the role of the judiciary at this stage is critical. Instead of appearing to cater to primeval tendencies, it should play the role of a just, progressive interventionist.
Also, we must remind ourselves that economic development is not the only yardstick of a progressive society. Any developed society begets progressive laws and a progressive judiciary. But when the justice system starts to look like an extended arm of the executive, the society suffers.
Sanjay Kumar is a New Delhi based journalist covering South Asia. A keen observer of politics in India and the subcontinent, Kumar in his 15 years of journalistic career has worked with both national and international media. A news reporter, columnist, commentator, producer and blogger, Kumar does not confine himself to one particular genre in journalism.
The views expressed by this writer and commenters below do not necessarily reflect the views and policies of the Dawn Media Group.