Several secular
liberal intellectuals in India are conflicted over the Supreme Court verdict on
Sabarimala. Their main argument is that a secular state and judiciary must
refrain from intervening in religious matters. First of all, India is
not secular in the Western sense. Secularism in India means equality of and
respect for all religions, as conceived by our Constitution. That is why in
India, you can’t jest about religion, let alone, draw cartoons and paintings
without risking serious consequences.
You try satirizing religion and you will
end up getting arrested like my “Hindu Right wing” friend was for cracking a
joke on a Hindu temple, last week. Now in this scenario,
religion remains deeply embedded in the state and the state remains attached to
religion in both peace times and conflict too. The very nature of politics,
hence, revolves around religious identity. This is no secularism; it is no
separation of religion and state, of the European Enlightenment kind.
Therefore, this
absolutist position that the Supreme Court should have stayed away from
intervening in religious practices of the Sabarimala temple, is wrong. Because,
the noninterventionist position assumes that India is a secular state in the
normative framework, where the state and religion leave each other alone to do
whatever they want. Religion, for example, in the US, does not get the right to
feel offended and the right to prosecute offenders for hurting religious
sentiments. There is no such parity in India. As of now, there is slim
possibility of getting rid of blasphemy laws and replacing it with a law on the
lines of the First Amendment in India.
Be that as it may,
what’s troubling here is that the liberals are taking a regressive line that
the state and the judiciary should turn a blind eye to the customs, traditions
and rituals which violate fundamental rights like the right to equality and the
right to constitutional remedies. This non-
interventionist argument not only
encourages the superficial secularism of India but also keeps India stuck in
perpetual misogyny and other kinds of bigotry.
If it were left to the
absolutists and noninterventionists, Dalits would have been still persecuted by
not just upper castes but by a retrograde jurisprudence too. The Indian state
cannot and should not let the tyranny of the male-dominated clergy and priests
prevail in the name of religion. It would be travesty of justice if the Supreme
Court of India had chosen to stay silent on the patriarchal notion that
menstrual women are impure, and from a religious point of view, not eligible to
pray to a god or deity. Such parochial beliefs sustain the culture of gender
discrimination and disrespect for women even if it is forbidden by law.
Most
importantly, the Indian Constitution and law cannot treat menstruating women
“impure” and lesser humans as considered by certain religious codes and
cultural practices. Any religious or
cultural practice that violates an individual’s fundamental rights, needs state
and judicial intervention. Religion cannot and should not have unlimited
autonomy and that too, at the expense of other fundamental rights. The Indian state and
the judiciary must intervene in religious matters even if it is just one
petitioner seeking justice on the grounds that a religious or cultural practice
violates his/her fundamental rights. Nothing is more sacrosanct than an
individual, as a unit of justice.
