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.