Thursday, October 6, 2022


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Above: Violent protests in Kerala over Sabarimala/Photo: Kaviyoor Santhosh

~By Inderjit Badhwar

It is impossible to decipher, as the agitation over expansion of rights of women to worship in the Sabarimala temple in Kerala intensifies, where the political chips will fall. Will the Hindu fundamentalists, who are opposing the Supreme Court ruling, and consequent entry of three women score points as protectors of a centuries-old tradition—an “essential practice”—and polarise the Hindu voters? Or will the secularists and the burgeoning women’s rights movement, now imbued with religious fervour, win the day?

What is the actual case law that preceded the Supreme Court’s recent decision lifting the ban on women in a certain age bracket worshipping inside this temple? Courts do protect the right to worship as a civil right and the freedom to do so according to one’s own belief. But should this right of worship be allowed to interfere with the rights of other persons?

While researching this subject in relation to the ongoing Sabarimala agitation, I chanced upon an illuminating paper by social anthropologist Gilles Tarabout published by the South Asia Multi-disciplinary Journal. I will excerpt cases from Indian jurisprudence, cited by Tarabout (taken directly from his paper), regarding striking a balance between the right to worship and ways of worshipping. They have a direct bearing on the Sabarimala controversy:

  • The Punjab and Haryana High Court in Rattan Singh and ors. (1951) had to deal with a conflict between bareheaded devotees and covered-headed ones in a mandir which Lahore High Court had previously (1936) declared not to be a Sikh Gurdwara. Bareheaded devotees complained they were prevented by the covered-headed ones from entering the mandir and worshipping there. The High Court, quoting precedents, underlined the general principle according to which the right to worship a deity according to one’s own belief is of a civil nature. The judge decided in favor of the plaintiffs because, according to him, coming bareheaded could not be seen as affecting others’ right to worship: “whether a man goes bare-headed or otherwise is not a form of ritual and even if he goes into the temple and begins to worship without anything on his head it may be good or bad manners according to the notions of the people but this has no reference to the ritual” (Rattan Singh and ors. 1951:§5).
  • This power of the courts does not concern Hinduism alone—which reinforces the idea that this form of legal action in religious matters is beyond any particularities regarding policies or persons. For instance, Allahabad High Court ruled in Syed Farzand Ali (1980) that Muslims of the Ahl-i-Hadith tradition had the right to speak the word “Amen” aloud in response to the prayer leader in mosques of the Mathura district without being hindered by Muslims of the Hanafi tradition who tried to oppose this practice. This was a long-standing conflict and judgments to decide the same question already existed by the end of the nineteenth century (Queen Empress 1885; Ataullah 1890). These earlier rulings were confirmed by the Allahabad High Court, with particular reference to Justice Mahmood in Ataullah:
  • “As to the question of pronouncing the word ‘Aameen’ I hold that the word ‘Aameen’ must be said at the end of the prayer ending with Sure-i-Fateha. I hold also that this should be pronounced. I hold also that there is a difference of the exact note in which it should be pronounced and I hold that there is no authority to say at what note of the vocal octave the voice should emanate.
  • “There are some who think that the speaking of the word ‘Aameen’ aloud is required by devotion and feeling and is necessary for their prayers. I hold, therefore, that there is no authority in the Mohammadan Ecclesiastical Law to limit the tone of voice in which the word Aameen is to be pronounced; that so long as the plaintiffs appellants are Muhammadans, as we have found they are, so long they are entitled to enter the mosque and perform the worship and say the word ‘Aameen’ without anything to restrain their tone or note of the octave. But if the pronouncement of the word ‘Aameen’ results in the disturbance of peace, that of course will have to be dealt with under the Criminal Law.” (Quoted in Syed Farzand Ali 1980:§5)

In his final remarks, the author says:

  • Discussing secularism in India is usually done by analyzing the Constitutional provisions and the acts of judges in their implementation. As the first part of this paper recalls, extended scholarship has underlined the growth and the importance of legal categories such as “secular,” “essential practices,” “superstition,” in shaping Hinduism today. The reformist agenda promoted by some judges in accordance with an interpretation of the Constitution that gives precedence to fundamental rights over the protection of religious freedom has further widened the scope of the law’s intervention.
  • However, important changes in religion are also brought forth through action of a less political nature on the part of the courts. Such processes result from systemic properties of Common law and are quite independent from any secularist agenda. One of them, already identified by scholars, is the general effect produced by the fact that the Constitution is centered on individuals on the basis of equality, a legal framework at odds with widely shared Hindu conceptions and practices.
  • The second part of this paper has tried to explore two other characteristics of the legal system that may similarly have a quasi-mechanical impact on religion (not only Hinduism but others as well): the fact that ordinary words are given a legal, technical definition that is sometimes quite different from their usual understanding in the religious realm (for instance “religious service,” “religious office,” “religious honor”); and the fact that the protection of a civil right such as the “right to worship” imposes on the court the duty to rule on related religious issues, even “essential” ones.
  • As a matter of fact, many of these legal definitions and the whole reasoning behind the discussion on jurisdiction make use of notions that were originally developed for other purposes. A right to an office is taken as an instance of a more general right to property. The right to a religious office does not differ from the right to any other office, which means that it must satisfy the same conditions to be held valid. The right to worship is taken as just one instance of the right to access or use land and water, which is regulated by dispositions of the Criminal Code.
  • This suggests a much deeper-rooted entanglement of law and religion than is usually assumed. At one level it certainly can be approached in terms of heritage, or enforcement of secularism, or religious reform, or a judge’s personal agenda. But at a much more fundamental level it also results from the legal system itself which imposes a legal categorization on aspects of religious life: religion has to fall within this legal universe of discourse and of enforceable rules. The kind of religion that is thus eventually shaped is mostly framed by questions and rules that were initially elaborated for other, non-religious litigations. Indeed, nearly all aspects of religious life may thus be re-defined through such legal categories.
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