Define the contours of hate in speechThe Sudarshan News case is a chance to infuse clarity on offensive speech, hate speech, and the exceptional cases

On Tuesday, the Supreme Court of India injuncted a Hindi-language television channel, Sudarshan News, from continuing its broadcast of a series titled “Bindas Bol”. This decision marked a departure from an order delivered on August 28, when the Court said that it must be circumspect in imposing any prior restraint on speech, especially since statutory authorities were vested with powers to ensure compliance of the law. But circumstances changed — following the Court’s original order, four episodes in the series were aired, portraying what the channel described as a jihadi conspiracy by Muslims to infiltrate India’s civil services.

To this allegation, the show added a number of evidently false statements. For example, it claimed that the upper age limit for Hindus attempting the civil service examination was 32 years, while the age limit for Muslims was 35; that Muslims were entitled to nine attempts at the examination when Hindus were entitled only to six. These assertions, the Court noted, were not only “insidious” but were also made in “wanton disregard of the truth”. Therefore, even on the face of it, the episodes had brought the entire Muslim community into “public hatred and disrepute”, and, in the process, had breached the Programme Code that regulated cable television.

Delineating the ambiguous

The channel’s contempt for facts, and its attempt to denigrate Muslims, might appear to be an obvious case of hate speech, but our laws present several complications when an attempt is made to distinguish permissible speech from hateful criminal conduct. The Supreme Court’s own past precedent has scarcely helped clarify matters. This case, therefore, represents something of an opportunity: to infuse clarity in our legislation by identifying the distinction between merely offensive speech and hate speech, and by making clearer still those categories of exceptional cases where the Constitution permits prior restraint. To be sure, this exercise has to be delicately handled. But that it is fraught with difficulties must not deter the Court from delineating what has long remained ambiguous.

A working definition of hate speech will have to be gleaned by interpreting our laws in conjunction with the constitutional right to free speech. But in attempting to draw a line, it might be valuable to study the basic thesis that undergirds a consensus across most liberal democracies — with the notable exception of the United States — on why states must deny protection to hate speech. This view is predicated on a philosophical defence which is perhaps best exemplified in the works of the scholar, Jeremy Waldron.

In Prof. Waldron’s definition, hate speech refers to utterances that incite violence, hatred, or discrimination against people on the basis of their collective identity, be it race, ethnicity, religion, gender or sexuality. He says the limitation in these cases should be restricted to those categories of minorities who are vulnerable. Under this conception, a merely offensive statement would not qualify as hate speech. For example, a mockery of Buddhism’s tenets would not be illegal simply because it offends the sensibilities of its practitioners; on the other hand, speech that describes all Buddhists as amoral would qualify. Similarly, a work of satire on a religious figure that outrages the sentiments of his followers will be safeguarded, but speech that vilifies an entire community by describing them, say, as “anti-nationals” would go unprotected. This is because hate speech, as Prof. Waldron argues, attacks two key tenets of a democratic republic: the guarantee of equal dignity to all, and the public good of inclusiveness.

Downside to more speech

Prof. Waldron’s thesis has been met with substantial resistance from First Amendment scholars in America.

They argue that censorship is a bottomless pit, that it is impossible to conceive bright-line rules that can distinguish between speech that only offends and speech that arouses hatred. They do not deny that a right to absolute freedom of speech can be abused. But they believe the only answer to misused freedom is more speech. While there is some merit in this response. it ignores at least three significant factors.

One, that even under the First Amendment, not all speech is equal — commercial speech, libel, and fighting words are afforded a lower standard of protection. Two, that almost all laws are a matter of construction; after all, most European democracies adopt principled standards that distinguish hate speech from merely offensive or rebarbative speech. Three, that countering speech with more speech is plausible only when there is a balance of power across society. Experience shows us that there can be no assurance that hate speech will somehow be sieved out of the veritable marketplace of ideas.

India’s laws

Prof. Waldron’s theory is also appealing because it fits with India’s democratic vision. Specifically, it animates the values of liberty, equality and fraternity that the Constitution’s framers viewed as foundational. Until now, however, the country’s hate-speech laws have suffered from a Delphic imprecision. Read literally, Section 153A and Section 295A of the Indian Penal Code (IPC), which criminalise, respectively, speech that seeks to promote enmity between different groups and speech/acts that outrage/s religious feelings, are no more than a poor imitation of what hate speech laws ought to be. They are vaguely worded, and they are frequently invoked to quell speech that so much as offends a person’s belief. As a result, they militate against the permissible grounds for limiting free speech enumerated in Article 19(2)of the Constitution, and, in particular, the restrictions allowed on considerations of public order and morality.

The first of those grounds demands that speech must reach a level of incitement to be criminalised. That is, the utterance in dispute must go beyond advocacy. The second ground requires a re-imagination of our hate speech laws. It obliges us to read morality not as societal morality but as constitutional morality. Seen this way, speech that merely causes offence and is no more than disparaging or unpleasant, would continue to remain shielded. But speech that treats communities with disparate concern, by creating in them a sense of dread, a sense of exclusion from civic life, will go unprotected.

Issue of prior restraint

While it is clear that the Constitution offers no protection to hate speech, the state’s failure to apply the Programme Code uniformly is linked to a wider incongruence in the law’s contents. Just like the substantive hate speech provisions in the IPC, the Programme Code is also much too vague. The Supreme Court must chisel its contents into a feasible, constitutionally committed model. Hard as this exercise sounds, this is the easy part — it is in deciding whether a prior restraint on speech can be imposed that the Court must tread a finer line.

We have repeatedly seen the deleterious impact that injunctions on speech have on the right to information and democracy. Only last week the High Court of Andhra Pradesh gagged the press from reporting on a charge made against a former Advocate General of the State, despite the manifest public interest in the case. Likewise, the pitfalls of a rule of absolute prior restraint under the Cinematograph Act have been all too evident. We certainly do not need an analogous regime for the broadcast media. But, at the same time, a rule against prior restraint cannot be unconditional. When it becomes evident that the basic objective of a broadcast is to evoke hatred and to vilify a vulnerable minority the law must find a way to foil the harm. A lot will ride on how the Court strikes this balance — for hate speech, once uttered, not only leaves little room for restitution but can also ramify to serve all manners of undemocratic ends.

Suhrith Parthasarathy is an advocate practising at the Madras High Court

Seeing dystopia in India’s democracyThe state’s attachment to the procedures of democracy has not been matched by concern for a fulfilling life for Indians

The United Nations has declared September 15 ‘International Day of Democracy’. An entry on its website states that this “provides an opportunity to review the state of democracy in the world”. To review the state of democracy in India would be timely given the times we are living through. Indeed by now, as India meets fresh challenges almost daily, for us to do so is arguably more important than to celebrate independence from colonial rule, which we do out of habit annually. But to review the state of democracy in India we would need to adopt a suitable criteria.

A partial evaluation

Formally, India is a democracy alright. There are multi-party elections with universal suffrage subject only to an age restriction. In evaluations of democracy in India it is often observed, to its credit, that it is the world’s largest democracy. Further plaudits are given for the smooth changeover in government after elections, the existence of an independent press and judiciary, and the guarantee of civil liberties justiciable in courts of law. While these are valid observations, the assessment is based on a partial evaluation. To an extent it amounts to admiring a form of government for its own sake without concern for the socioeconomic outcomes that are produced. It is like admiring the architecture of a building without pausing to enquire whether its inhabitants are happy to be living in it.

Outcomes differ among countries that are democracies. Take for instance the life satisfaction that citizens report. First, it should be noted that this is potentially an important metric as it is based on people’s perceptions on what matters most, including the responsiveness of the government to their needs. In the UN’s World Happiness Report for 2020 (https://bit.ly/32UcJMe and https://bit.ly/2HqdN2l), the list of top 10 countries is heavily loaded with the democracies of western Europe. The U.S. barely edges into the top 20. India, on the other hand, is ranked 144 out of the 153 countries evaluated.

Further, its ranking has dropped in recent years. We should be giving serious thought to both the fact of India’s low ranking on the happiness index and its slide. To my mind, the criterion that in a democracy the people must be satisfied with their life is given very little thought these days. It was not so in the early days of our republic.

Built by the people

Two leaders who had recognised this criterion in their engagements with the public were Jawaharlal Nehru and Sarvepalli Radhakrishnan. Nehru was explicit in his speech on August 15, 1947 when he stated that the goal of independence was to create institutions which will ensure justice and fullness of life to every man and woman. Note that Nehru had not promised that the government will create these institutions. He was far too aware that democracy is not synonymous with statism; it is about the people. Ultimately, the institutions that enable persons to lead fulfilling lives are built by the people themselves. Let me give you three examples, all from the United States. In the 1960s, that country saw movements for black empowerment, women’s emancipation and sexual liberation. These movements were remarkably successful in the outcomes they achieved, while receiving no support from the U.S. state. This is the sense in which it may be said that it is the people who build the institutions that matter. That said, however, the state has a role in their building. Laws must not constrain liberty when it is self-affirming and must change when it is realised that they do.

On development

The role of the state does not end with removing restraints though. It extends to the endowment of individuals with capabilities in the sense of Amartya Sen. Prof. Sen had thought of capabilities as the endowments that allow individuals to undertake the functionings, or do the things, that they value. We can think of a person’s health and education as among the most important inputs into the capabilities that they end up possessing. While radical approaches to empowerment rightly emphasise the importance of self-help, it is not sufficiently recognised that individuals cannot easily equip themselves with capabilities, requiring the state to intervene. Think of a person born into poverty or a woman born into wealth but into a world with social sanction against education for women. Similarly, historically, the caste system in India had excluded a large section from education. While private initiative should not be de-legitimised, it has had only a limited impact on building capabilities in India as it has focused on those with the ability to pay. In a move to measure the capabilities of a population, the UN devised the Human Development Index. The main elements of this are health and education. As with the UN’s Happiness Index, India fares very poorly in the UN’s Human Development Index too. In 2019, India ranked 129th out of 189 countries. Judged in terms of human development — and one would be hard put to defend any other sense in which development is to be understood — Indian democracy is severely challenged.

Pointing to the incongruence between India’s low level of human development and its status as a democracy evokes the response that this is to see the latter in instrumental terms. Democracy it is asserted is a form of government, namely government by discussion. The answer to this deflection is that democracy may be a form of government but surely the people have come to adopt this particular form of government with a goal in mind. We may safely assume a fulfilling life is that goal. Authoritarianism is not compatible with such a life, only democracy, which at least in principle grants individuals a voice in governance, is. Second, people adopt democracy so that they can participate in their own governance. They cannot but have foreseen that they must be endowed with capabilities if this is to be possible at all. Thus, liberty and capability are conjoined as the ultimate aspiration in a democracy.

Neglect and repression

In India, the state’s ritualistic attachment with the procedures of democracy has not been matched by an awareness of its implicit goal of a fulfilling life for Indians. By the 1950s, freedom of speech had been restricted by the First Amendment to the Constitution and the Directive Principles, that had enjoined upon the state to promote health and education, had been all but forgotten. Inevitably, the consequential underinvestment in a public health system has left the country severely unprepared for the emergency when COVID-19 struck. After reading of bodies left lying in their wards, we now read of an emerging shortage of something so basic as oxygen supply in metropolitan hospitals. COVID-19 affects the human respiratory system and oxygen is vital to avert the loss of life. Those who have survived thus far live with foreboding of a gruesome end. Not only has the state neglected its responsibility but it has resorted to repression when its inaction is questioned. Recently, an agency reported that a representative of the State in southern Andhra Pradesh publicly threatened with arrest a government doctor who had dared to mention at a review meeting that there were not enough beds in the primary health centre that he was responsible for.

Dystopia was imagined as a place where the people experience great suffering as they fend for themselves under the watchful eyes of an authoritarian state. Is it so far from where we live today?

Pulapre Balakrishnan is Professor of Economics at Ashoka University, Sonipat

വൺ ഇന്ത്യാ പെൻഷൻ അപ്രായോഗികം. ഡോ.തോമസ് ഐസക്.

ഇന്ത്യാ രാജ്യത്ത് വയോജനങ്ങൾക്ക് സാർവ്വത്രിക പെൻഷൻ എന്ന ആദർശം ഏതാണ്ട് സാക്ഷാത്കരിച്ച സംസ്ഥാനം കേരളം മാത്രമാണ്. കർഷക ബോർഡ് പെൻഷൻകൂടി നടപ്പാകുന്നതോടെ നാം ആ ലക്ഷ്യത്തിനു വളരെ അടുത്ത് എത്തിയിരിക്കും. കേരളത്തിൽ ഇടതുപക്ഷത്തിന് അവകാശപ്പെട്ടതാണ് ഈ നേട്ടം. 1400 രൂപ പ്രതിമാസം പെൻഷൻ നൽകുന്നതിൽ 1250 രൂപയും ഇടതുപക്ഷ സർക്കാരുകളുടെ സംഭാവനയാണ്. ഈ സർക്കാരിന്റെ ഏറ്റവും വലിയ നേട്ടങ്ങളിലൊന്ന് 600 രൂപ പെൻഷൻ 1400 രൂപയായി വർദ്ധിപ്പിച്ചതാണ്. ഇതിനുള്ള ജനകീയ അംഗീകാരം സർക്കാരിനുണ്ട്. ഇത് എങ്ങനെ തകർക്കാം എന്നതിന് ആർഎസ്എസ് കേന്ദ്രങ്ങൾ കണ്ടുപിടിച്ച ഒരു തന്ത്രമാണ് വൺ ഇന്ത്യ വൺ പെൻഷൻ കാമ്പയിൻ.

1400 രൂപ എന്ത്, 10000 രൂപയെങ്കിലും പെൻഷൻ വേണ്ടേ എന്നാണ് ചോദ്യം. രാഷ്ട്രീയമൊന്നും ഇല്ല. നല്ലൊരു കാര്യത്തിന് എല്ലാവരെയും യോജിപ്പിക്കുക എന്നതാണ് ലക്ഷ്യം. സ്വയം അവരോധിത നേതാക്കളും വക്താക്കളും ഉണ്ടായിട്ടുണ്ട്. ഫെയ്സ്ബുക്ക് കൂട്ടായ്മകളും കൺവെൻഷനുകളും ഒക്കെ നടന്നു വരുന്ന വേളയിലാണ് കർട്ടനു പിന്നിൽ ചരടു വലിക്കുന്നത് ആരെണെന്നു കൂടുതൽ വ്യക്തമായത്. ഡൽഹിലെ അണ്ണാ ഹസാരെ സമരം പോലെ ആർഎസ്എസ് ട്രോജൻ കുതിരയാണ് പുതിയ പ്രസ്ഥാനം.

ഇനിയും പ്രചാരണവുമായി മുന്നോട്ടു പോകുംമുമ്പ് നിങ്ങൾ നാട്ടിലെ 60 വയസ്സു കഴിഞ്ഞ എല്ലാ പാവങ്ങൾക്കും 10000 രൂപ വീതം പെൻഷൻ നൽകാൻ ആകെ എത്ര തുക വേണമെന്നു പറയുക. ഇന്നിപ്പോൾ വയോജനങ്ങളുടെ എണ്ണം ഏതാണ്ട് 14.3 കോടി വരും. ഇതിൽ ആദായനികുതി നൽകുന്നവർ, സർക്കാർ പെൻഷനും മറ്റും വാങ്ങുന്നവരെ മാറ്റിയാൽ 12 കോടി പേർക്ക് 10000 രൂപവച്ച് പെൻഷൻ നൽകണമെന്നിരിക്കട്ടെ.  മൊത്തം 14.4 ലക്ഷം കോടി രൂപ ചെലവുവരും. ഈ തുക എങ്ങനെ ഉണ്ടാക്കും?

ഇതിന് വൺ ഇന്ത്യ വൺ പെൻഷൻകാരൻ കണ്ടു പിടിച്ചുള്ള മാർഗ്ഗം – ഇന്നു പെൻഷൻ വാങ്ങുന്നവരുടെയെല്ലാം പെൻഷൻ 10000 രൂപയായി കുറയ്ക്കുക. മിച്ചം വരുന്ന പണം ഉപയോഗിച്ച് പെൻഷനേ ഇല്ലാത്തവർക്ക് 10000 രൂപ വീതം നൽകുക. മണ്ടത്തരം വിളിച്ചു പറയുന്നതിന് ഒരു മര്യാദ വേണം. ഇന്ത്യയിൽ കേന്ദ്ര-സംസ്ഥാന സർക്കാരുകളെല്ലാം കൂടി നൽകുന്ന പെൻഷൻ തുക ഇന്ന് 3.5 - 4 ലക്ഷം കോടി രൂപയേ വരൂ. ഇതിൽ നിന്നും മിച്ചം വച്ച് എല്ലാവർക്കും 10000 രൂപ വീതം പെൻഷൻ നൽകാമെന്ന് ആരെ പറഞ്ഞാണ് പറ്റിക്കുന്നത്? യഥാർത്ഥത്തിൽ നിങ്ങളുടെ ഉന്നം എത്രയോ ദശാബ്ദമായി സമരവും പ്രക്ഷോഭവുമെല്ലാം നടത്തി തങ്ങളുടെ സേവന-വേതന വ്യവസ്ഥകൾ മെച്ചപ്പെടുത്തുകയും, ന്യായമായ പെൻഷൻ വിലപേശി നേടാൻ കഴിഞ്ഞവരെ മുഴുവൻ ജനശത്രുക്കളാക്കി ചിത്രീകരിക്കലാണ്.

എല്ലാവർക്കും 10000 രൂപ വീതം പെൻഷൻ കൊടുക്കാൻ ഇന്ത്യയിലെ അതി സമ്പന്നൻമാരിൽ നിന്നും നികുതി പിരിച്ച് സാർവ്വത്രിക പെൻഷൻ ഏർപ്പെടുത്തുകയാണ് വേണ്ടത്. മാസ ശമ്പളവും പെൻഷനും വാങ്ങുന്നവരെയല്ല, ഇന്ത്യയിലെ ഒരു ശതമാനം വരുന്ന ശത കോടീശ്വരൻമാരെ പിടികൂടണമെന്നു പറയാൻ തയ്യാറുണ്ടോ?

പ്രൊഫ. പ്രഭാത് പട്നായികിന്റെ നേതൃത്വത്തിൽ ഒരു സംഘം വിദഗ്ധൻമാർ ഇതു സംബന്ധിച്ച് കണക്ക് കൂട്ടിയിട്ടുണ്ട്. ശത കോടീശ്വരൻമാർക്കു മേൽ ഒരു ശതമാനം സ്വത്ത് നികുതി ഏർപ്പെടുത്തിയാൽ 6 ലക്ഷം കോടി രൂപ വരുമാനമുണ്ടാകും. ഇവരുടെ സ്വത്തിൽ 5 ശതമാനം എല്ലാ വർഷവും പിന്തുടർച്ചാവകാശമായി കൈമാറ്റം ചെയ്യപ്പെടുന്നു എന്നാണ് കണക്ക്. ഇതിനുമേൽ Inheritance Tax ചുമത്തിയാൽ 9.3 ലക്ഷം കോടി കിട്ടും. ഈ 15 ലക്ഷം കോടി വച്ച് നമുക്ക് എല്ലാവർക്കും 10000 രൂപ പെൻഷൻ ഇന്ത്യയിൽ ആരംഭിക്കാം. എന്താ പറയാൻ തയ്യാറുണ്ടോ? സമരം ചെയ്യാൻ തയ്യാറുണ്ടോ? നാട്ടിലെ ശമ്പളക്കാരുടെയും പെൻഷൻകാരുടെയും മേൽ കുതിരകയറുവാൻ എളുപ്പമാണ്. പക്ഷെ, ഇന്ത്യയിലെ ശതകോടീശ്വരൻമാർക്കു നേരെ വാളു വീശുക എളുപ്പമല്ല.

ക്ഷേമ രാഷ്ട്രത്തിലേയ്ക്ക് എളുപ്പവഴി ഇല്ല. കേരളത്തിൽ ഭൂപരിഷ്കരണത്തിലൂടെയും കൂട്ടായ വിലപേശലിലൂടെയും സർക്കാരിന്റെ കരുതൽ നടപടികളിലൂടെയും ഇടതുപക്ഷം നടപ്പാക്കിയ വലിയ തോതിലുള്ള പുനർ വിതരണം, അതു മാത്രമാണ് മാർഗ്ഗം.

പിന്നെ ഒന്നു കൂടിയുണ്ട്. കൂലിയും ശമ്പളവും കഴിഞ്ഞിട്ടല്ലേ പെൻഷൻ വരുന്നത്. എന്നാൽ പുതിയ പ്രസ്ഥാനക്കാർക്ക് രാജ്യത്തെ മിനിമം കൂലിയെക്കുറിച്ചോ, ഇന്ന് കേന്ദ്രസർക്കാർ നടപ്പാക്കിക്കൊണ്ടിരിക്കുന്ന തൊഴിലാളി വിരുദ്ധ നിയമങ്ങളെക്കുറിച്ചോ ഒന്നും പറയാനില്ല. മാസം 4000 – 5000 രൂപ മാത്രം കൂലിയും ശമ്പളവും കിട്ടുന്ന ഇന്ത്യയിലെ മഹാഭൂരിപക്ഷം പണിയെടുക്കുന്നവരുടെ വേതനം മിനിമം 18000 രൂപയായി ഉയർത്തണമെന്നാണ് പറയുന്നത്. ഏയ് അതൊക്കെ പഴയതു പോലെ തന്നെ. പെൻഷനാണ് വർദ്ധിപ്പിക്കേണ്ടത് എന്നാണ് പുതിയ വൺ ഇന്ത്യ വൺ പെൻഷൻകാരുടെ മനോഗതി.

ഈ പരിപ്പ് ഇവിടെ വേവില്ല. വേറെവല്ലതും പറഞ്ഞ് മാറ്റിപ്പിടിക്ക്.

അറിയുമോ മംഗളം വിജയനെ ..? എം.സ്വരാജ് എഴുതുന്നു

അധികാരാസക്തിയാൽ മനുഷ്യത്വം മരവിച്ചു പോയ പ്രതിപക്ഷം, കോവിഡ് വ്യാപനത്തിന് വഴിവെക്കണമെന്ന ഉദ്ദേശത്തോടെയുള്ള സമരാഭാസങ്ങൾ തുടരുകയാണ്. കോൺഗ്രസും ബിജെപിയും കോവിഡിനൊപ്പം കേരളത്തെ അക്രമിയ്ക്കുകയാണ് ചെയ്യുന്നത്. അൽപവും സങ്കോചമില്ലാതെ മുഖ്യധാരാ മാധ്യമങ്ങളീ ജനവിരുദ്ധ സമരത്തെ പിന്തുണച്ചു പ്രോത്സാഹിപ്പിയ്ക്കുന്നുമുണ്ട്. 

കോവിഡ് ഭീഷണിയുടെ കാലത്ത് ഇങ്ങനെ സമരങ്ങൾ നടത്തുന്നത് ഇടതുപക്ഷമായിരുന്നെങ്കിലോ ?? 

എത്രയെത്ര മുഖപ്രസംഗങ്ങൾ, സാരോപദേശങ്ങൾ , പരമ്പരകൾ , ശാപങ്ങൾ....... 

എന്തൊക്കെ കേരളം കാണുമായിരുന്നു . എന്നാൽ സമരം ഇടതുപക്ഷത്തിനെതിരാവുമ്പോൾ മനുഷ്യത്വവും ജനങ്ങളുടെ ആരോഗ്യവുമൊക്കെ മറക്കാമെന്നാണ് മാധ്യമ പക്ഷം. 

ഇന്നിപ്പോൾ ജലപീരങ്കിയിലെ വെള്ളത്തിൻ്റെ ഗുണനിലവാരത്തെക്കുറിച്ച് മനോരമ ആശങ്ക പ്രകടിപ്പിയ്ക്കുന്നു. ഇന്നോളം തോന്നാത്ത ആശങ്കകളാണിപ്പോഴീ കൂട്ടർക്ക്. മുമ്പ് വിദ്യാർത്ഥി സമരങ്ങളെ കൊടും പാതകമായിക്കണ്ട് രോഷം കൊണ്ടവരും സമരക്കാരെ തല്ലിയൊതുക്കേണ്ടതിൻ്റെ ആവശ്യകതയെക്കുറിച്ച് ഉപന്യാസമെഴുതിയവരും ഇപ്പോൾ കോവിഡ് വ്യാപനാർത്ഥമുള്ള സമരങ്ങളുടെ സ്പോൺസർമാരായി മാറിയിരിയ്ക്കുന്നു. 

വർഷങ്ങൾക്കു മുമ്പ് കേരളത്തെ പിടിച്ചുകുലുക്കിയ ഒരു മഹാസമരം നടക്കുമ്പോഴാണ് സുനാമി നാശം വിതച്ചത്. ഡി വൈ എഫ് ഐ യും ഇടതുമുന്നണിയും അന്നു തന്നെ പ്രക്ഷോഭങ്ങൾ നിർത്തിവെച്ചു. ദുരിതാശ്വാസ പ്രവർത്തനങ്ങളിൽ മുഴുകി. അന്നു വീടു നഷ്ടപ്പെട്ടവർക്ക് ഏറ്റവും കൂടുതൽ വീടു വെച്ചു നൽകിയത് സി പി ഐ (എം) ആയിരുന്നു. ദുരിതകാലത്ത് ജനങ്ങളോട് ഉത്തരവാദിത്വമുള്ള സംഘടനകൾ എങ്ങനെ പ്രവർത്തിയ്ക്കണമെന്നതിൻ്റെ മാതൃകയായിരുന്നു അത്. 

ഈ കോവിഡ് കാലത്തും ഡിവൈഎഫ്ഐ ലോകത്തിനു മാതൃകയായി. 

സഹജീവിസ്നേഹമുയർത്തിപ്പിടിച്ചു കൊണ്ട് പാഴ് വസ്തുക്കൾ ശേഖരിച്ചു വിറ്റും കൂലിപ്പണിയെടുത്തും സമാഹരിച്ച പതിനൊന്നു കോടി രൂപയാണ് ഡിവൈഎഫ്ഐ ദുരിതാശ്വാസ നിധിയിലേയ്ക്ക് നൽകിയത്. ഇതൊരു ലോക റെക്കോഡാണ്. മറ്റൊരു യുവജന സംഘടനയ്ക്കും ഇങ്ങനെയൊന്ന് സ്വപ്നം കാണാൻ പോലും കഴിഞ്ഞിട്ടില്ല . അതിനിടയിലാണ് ചുളിവു വീഴാത്ത ഖദറുമായി ചായം മുക്കൽ നാടകം നടക്കുന്നത്. 

ഡിവൈഎഫ്ഐ യുടെ മഹത്തായ പ്രവർത്തനത്തെ കണ്ടില്ലെന്നു നടിച്ചവർ ഇപ്പോഴത്തെ സമരാഭാസങ്ങൾക്കു നൽകുന്ന പരിഗണന കാണേണ്ടതു തന്നെയാണ്. പോലീസ് അതിക്രമമെന്നൊക്കെയാണ് പ്രചരണം. എണ്ണിയാലൊടുങ്ങാത്ത സമര പോരാട്ടങ്ങളുടെ ചരിത്രമുറങ്ങുന്ന കേരളത്തെ പരിഹസിക്കുകയാണിവർ. സമരം ചെയ്യാൻ ചുവന്ന മഷിക്കുപ്പിയുമായി പോകുന്ന കോമാളിക്കൂട്ടങ്ങൾ മഷിതേച്ച് പറ്റിയ്ക്കാൻ ശ്രമിയ്ക്കുകയാണ് കേരളത്തെ.  പോലീസിന് പത്തടി കൊടുത്ത് രണ്ടടി തിരിച്ചു വാങ്ങുന്ന അഭിനവ സമരക്കാർ പോലീസ് അതിക്രമമെന്ന് അട്ടഹസിയ്ക്കുമ്പോൾ ജനകീയ സമരങ്ങളെ ചോരയിൽ മുക്കിക്കൊന്ന യു ഡി എഫ് ഭരണകാലം മറന്നു പോവരുത് . 

മഷിക്കുപ്പി കോപ്രായങ്ങളെ കൊണ്ടാടുന്നവർ ഇന്നലെകളിലേയ്ക്കൊന്നു തിരിഞ്ഞു നോക്കണം. തെരുവീഥികളിൽ മുഴങ്ങിയ വെടിയൊച്ചകളും നിലയ്ക്കാതൊഴുകിയ ചോരച്ചാലുകളും കണ്ടു ഭയപ്പെടാതെ നേരിനായി പൊരുതിനിന്ന തലമുറകളുണ്ടിവിടെ . തല്ലുകൊണ്ടു തല പൊട്ടിയും എല്ലൊടിഞ്ഞു ചോര ചിന്തിയും ചതഞ്ഞരഞ്ഞ ശരീരവുമായി ചെറുത്തു നിന്ന കുട്ടികൾ പറഞ്ഞു തരും സമരസാന്ദ്രകാലത്തിൻ്റെ സംഗ്രാമ സ്മരണകൾ . ക്യാമറയുടെ മുന്നിലെ അഭിനയ മികവും മഷിച്ചമയങ്ങളും കൊണ്ട് നാടിനെ പരിഹസിയ്ക്കുന്ന കോമാളികൾക്കറിയില്ല ചോര ചിതറിയ മണ്ണിൽ തീപടർന്ന സമര കാലങ്ങളെപ്പറ്റി. പോലീസ് അതിക്രമങ്ങളുടെ UDF കാണ്ഡത്തെപ്പറ്റി. തടവറകളെ തോൽപിച്ച സമര യൗവ്വനത്തെപ്പറ്റി ... 

അവനവന് ഉറപ്പില്ലാത്ത മുദ്രാവാക്യവുമായി ക്യാമറകൾക്കു വേണ്ടി ചുവടുവെയ്ക്കുന്ന മഷിച്ചമയവേഷക്കാർക്ക് നമിതയെ അറിയുമോ ?

UDF സർക്കാരിൻ്റെ വിദ്യാഭ്യാസക്കച്ചവടത്തിനെതിരായ സമരത്തിലാണ് തിരുവനന്തപുരത്ത് പെൺകുട്ടികൾക്കു നേരെയുണ്ടായ പോലീസ് അതിക്രമത്തിൽ നിയമ വിദ്യാർത്ഥിനിയായ നമിതയുടെ ഇരുകാലുകളും തകർന്നത്. രണ്ടു കാലുകളും പ്ലാസ്റ്ററിട്ട് അനക്കാനാവാത്ത നിലയിലാണ് സ്ട്രച്ചറിൽ കിടത്തിയ നമിതയെ പരീക്ഷാ ഹാളിലെത്തിച്ചത്.

സ്ട്രച്ചറിൽ കിടന്നു കൊണ്ട് യൂണിവേഴ്സിറ്റി പരീക്ഷയെഴുതിയ നമിത ഒന്നാം റാങ്കു നേടി.

അന്നൊരിയ്ക്കൽ സമരമുഖത്തു നിന്നു പിടികൂടി ഭീകര മർദ്ദനത്തിനിരയാക്കിയ പി.കെ ബിജുവിനെയും ജി മുരളീധരനെയും മറ്റു സഖാക്കളെയും മർദ്ദിച്ച് കലി തീരാതെ കൈവിലങ്ങണിയിച്ചാണ് പോലീസ് പരീക്ഷാഹാളിലെത്തിച്ചത്. 

വിദേശത്തു നിന്ന് വരുത്തിയ മാരക പ്രഹര ശേഷിയുള്ള ഇലക്ട്രിക് ലാത്തി ആദ്യമായി പ്രയോഗിച്ചത് വിദ്യാർത്ഥികൾക്കു നേരെയായിരുന്നു. അനീഷിനെയും പ്രണവിനെയും നടുറോഡിൽ നഗ്നരാക്കിയ ശേഷം ഷോക്കടിപ്പിച്ചപ്പോൾ ആസ്വദിച്ച നരാധമൻമാർ ഇന്ന്

'ജലപീരങ്കി അക്രമ'ത്തെക്കുറിച്ച് സംസാരിയ്ക്കുന്നത് ഗംഭീരം തന്നെ. 

തല പൊട്ടിയും എല്ലൊടിഞ്ഞും ചോരയിൽ കുളിച്ചവരെക്കൊണ്ട് ആശുപത്രികൾ നിറഞ്ഞ കാലം. ചതഞ്ഞരഞ്ഞ ശരീരവുമായി തടവറകളിൽ ചെറുപ്പക്കാർ ഞെരിഞ്ഞമർന്ന കാലം. നൂറു കണക്കിന് ചെറുപ്പക്കാരെയും പെൺകുട്ടികളെയും സ്കൂൾ കുട്ടികളെപ്പോലും വേട്ടയാടിയ കിരാത ഭരണകാലം അത്രയെളുപ്പം മറക്കാനാവുമോ .

ഒരിയ്ക്കൽ സമരമുഖത്തു നിന്നും ശരീരം മുഴുവൻ പരിക്കുകളോടെ അറസ്റ്റ് ചെയ്ത് നന്ദാവനം ക്യാമ്പിൽ കൊണ്ടിട്ട ഞങ്ങളെ ആശുപത്രിയിലെത്തിയ്ക്കാൻ പോലും MLA മാർ വന്ന് സമരം നടത്തേണ്ടി വന്നു. 

സർക്കാർ ഭൂമിയും കെട്ടിടവും പണവും ഉപയോഗിച്ച് ആരംഭിച്ച മെഡിക്കൽ കോളേജ് സ്വകാര്യ സ്വത്താക്കുന്നതിനെതിരെ മന്ത്രിയെ കരിങ്കൊടി കാണിച്ചതിന് അഞ്ചുചെറുപ്പക്കാരെ വെടിവെച്ചുകൊന്ന ചോര പുരണ്ട നാളുകൾ... അന്നു മുതലിന്നോളം ശരീരം തളർന്നു കിടക്കുന്ന പുഷ്പൻ ....

അങ്ങനെ എത്രയെത്ര അനുഭവങ്ങൾ ... 

അനുഭവക്കടലിലെ മറക്കാനാവാത്തൊരു പേരാണ് മംഗളം വിജയൻ്റെത്. പതിനഞ്ച് കൊല്ലം മുമ്പാണ്. കോഴിക്കോട് IMG യിൽ കൗൺസിലിംഗ് ഉപരോധസമരം . രാവിലെ 8 മണിയ്ക്കു മുമ്പ് സമരമാരംഭിച്ചു. നൂറു കണക്കിന് സായുധ പോലീസുകാർ. യുദ്ധസമാനമായ സംവിധാനങ്ങൾ . 

ഗ്രനേഡ്, ഡൈമാർക്കർ , ടിയർഗ്യാസ് , റബ്ബർ ബുളളറ്റ് ..... 

അക്ഷരാർത്ഥത്തിൽ ശത്രുരാജ്യക്കാരെ പോലെയാണ് വിദ്യാർത്ഥികളെ തല്ലിച്ചതച്ചു കൊല്ലാക്കൊല ചെയ്തത് . മൃതപ്രായരായവരെ കയ്യിലും കാലിലും തൂക്കിയെടുത്ത് പോലീസ് വാഹനത്തിലേയ്ക്ക് എറിയുകയായിരുന്നു. 

ചാനലുകളുടെ അതിപ്രസരമില്ലാത്ത അക്കാലത്ത് ഇന്ത്യാവിഷൻ ചാനലായിരുന്നു ഇത്തരം വാർത്തകളൊക്കെ വിശദമായി കാണിച്ചിരുന്നത്. തൃശൂർ വടക്കാഞ്ചേരിയിലെ ചിറ്റണ്ട എന്ന സ്ഥലത്തെ യുവജന സംഘം വായനശാലയിലിരുന്ന് ടിവി കാണുകയായിരുന്നു ശ്രീ.മംഗളം വിജയൻ.  ഞങ്ങളെ പോലീസ് തല്ലിച്ചതയ്ക്കുന്ന ദൃശ്യങ്ങൾ ടെലിവിഷനിൽ കണ്ടപ്പാഴുള്ള ആഘാതത്തിൽ അദ്ദേഹം കുഴഞ്ഞുവീണു മരിച്ചു. ദീർഘകാലം മംഗളം വാരികയുടെ ഏജൻറായിരുന്നതിനാലാണ് അദ്ദേഹത്തിൻ്റെ പേരിനൊപ്പം മംഗളം എന്നു ചേർത്ത് അറിയപ്പെട്ടത് . കോഴിക്കോട് ജില്ലാ ജയിലിൽ വെച്ചാണ് ഈ വാർത്ത ഞങ്ങളറിഞ്ഞത്. അങ്ങനെ എത്രയെത്ര ഓർമകൾ... 

ചോര നിറമുള്ള ചായം തിരഞ്ഞ് അലയുന്ന 'ധീരന്മാരും' ജലപീരങ്കിയിലെ വെള്ളത്തിൻ്റെ ഗുണനിലവാരക്കുറവിനെപ്പറ്റി പ്രബന്ധ രചന നടത്തുന്ന സ്പോൺസർമാരും എത്ര ഒത്തുപിടിച്ചാലും ഒരു ചെറു മഴയിൽത്തന്നെ ചായങ്ങളും ചമയങ്ങളും മാഞ്ഞു പോകുമെന്ന് മറക്കരുത്. 

എം സ്വരാജ്

Why BR Ambedkar's three warnings in his last speech to the Constituent Assembly resonate even today

On November 25, 1949, he spoke of the need to give up the grammar of anarchy, to avoid hero-worship, and to work towards a social – not just a political – democracy.

BR Ambedkar

Jan 26, 2016 · 02:30 PM

Wikimedia Commons

Excerpts from the speech to the Constituent Assembly on November 25, 1949

On 26th January 1950, India will be an independent country. What would happen to her independence? Will she maintain her independence or will she lose it again? This is the first thought that comes to my mind. It is not that India was never an independent country. The point is that she once lost the independence she had. Will she lose it a second time? It is this thought which makes me most anxious for the future.

What perturbs me greatly is the fact that not only India has once before lost her independence, but she lost it by the infidelity and treachery of some of her own people.

In the invasion of Sindh by Mahommed-Bin-Kasim, the military commanders of King Dahar accepted bribes from the agents of Mahommed-Bin-Kasim and refused to fight on the side of their King. It was Jaichand who invited Mahommed Gohri to invade India and fight against Prithvi Raj and promised him the help of himself and the Solanki Kings. When Shivaji was fighting for the liberation of Hindus, the other Maratha noblemen and the Rajput Kings were fighting the battle on the side of Moghul Emperors. When the British were trying to destroy the Sikh Rulers, Gulab Singh, their principal commander sat silent and did not help to save the Sikh Kingdom. In 1857, when a large part of India had declared a war of independence against the British, the Sikhs stood and watched the event as silent spectators.

Will history repeat itself? It is this thought which fills me with anxiety. This anxiety is deepened by the realisation of the fact that in addition to our old enemies in the form of castes and creeds we are going to have many political parties with diverse and opposing political creeds. Will Indians place the country above their creed or will they place creed above country? I do not know. But this much is certain that if the parties place creed above country, our independence will be put in jeopardy a second time and probably be lost for ever. This eventuality we must all resolutely guard against. We must be determined to defend our independence with the last drop of our blood.

On the 26th of January 1950, India would be a democratic country in the sense that India from that day would have a government of the people, by the people and for the people. The same thought comes to my mind. What would happen to her democratic Constitution? Will she be able to maintain it or will she lose it again? This is the second thought that comes to my mind and makes me as anxious as the first.

Democratic system

It is not that India did not know what is Democracy. There was a time when India was studded with republics, and even where there were monarchies, they were either elected or limited. They were never absolute. It is not that India did not know Parliaments or parliamentary procedure.

A study of the Buddhist Bhikshu Sanghas discloses that not only there were Parliaments – for the Sanghas were nothing but Parliaments – but the Sanghas knew and observed all the rules of parliamentary procedure known to modern times. They had rules regarding seating arrangements, rules regarding Motions, Resolutions, Quorum, Whip, Counting of Votes, Voting by Ballot, Censure Motion, Regularisation, Res Judicata, etc. Although these rules of parliamentary procedure were applied by the Buddha to the meetings of the Sanghas, he must have borrowed them from the rules of the Political Assemblies functioning in the country in his time.

ADVERTISEMENThis democratic system India lost. Will she lose it a second time? I do not know. But it is quite possible in a country like India – where democracy from its long disuse must be regarded as something quite new – there is danger of democracy giving place to dictatorship. It is quite possible for this new born democracy to retain its form but give place to dictatorship in fact. If there is a landslide, the danger of the second possibility becoming actuality is much greater.

Three warnings in

If we wish to maintain democracy not merely in form, but also in fact, what must we do?

The first thing in my judgement we must do is to hold fast to constitutional methods of achieving our social and economic objectives. It means we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us.

The second thing we must do is to observe the caution which John Stuart Mill has given to all who are interested in the maintenance of democracy, namely, not “to lay their liberties at the feet of even a great man, or to trust him with power which enable him to subvert their institutions”. There is nothing wrong in being grateful to great men who have rendered life-long services to the country. But there are limits to gratefulness. As has been well said by the Irish Patriot Daniel O’Connel, no man can be grateful at the cost of his honour, no woman can be grateful at the cost of her chastity and no nation can be grateful at the cost of its liberty. This caution is far more necessary in the case of India than in the case of any other country. For in India, Bhakti or what may be called the path of devotion or hero-worship, plays a part in its politics unequalled in magnitude by the part it plays in the politics of any other country in the world. Bhakti in religion may be a road to the salvation of the soul. But in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship.

The third thing we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy.

Social democracy

What does social democracy mean? It means a way of life which recognises liberty, equality and fraternity as the principles of life. These principles of liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy.

Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty would produce the supremacy of the few over the many. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them.

We must begin by acknowledging the fact that there is complete absence of two things in Indian Society. One of these is equality. On the social plane, we have in India a society based on the principle of graded inequality which we have a society in which there are some who have immense wealth as against many who live in abject poverty.

On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognising the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which is Assembly has to laboriously built up.

The second thing we are wanting in is recognition of the principle of fraternity. What does fraternity mean? Fraternity means a sense of common brotherhood of all Indians – of Indians being one people. It is the principle which gives unity and solidarity to social life. It is a difficult thing to achieve. How difficult it is, can be realised from the story related by James Bryce in his volume on American Commonwealth about the United States of America.

The story is – I propose to recount it in the words of Bryce himself:

“Some years ago the American Protestant Episcopal Church was occupied at its triennial Convention in revising its liturgy. It was thought desirable to introduce among the short sentence prayers a prayer for the whole people, and an eminent New England divine proposed the words `O Lord, bless our nation’. Accepted one afternoon, on the spur of the moment, the sentence was brought up next day for reconsideration, when so many objections were raised by the laity to the word nation’ as importing too definite a recognition of national unity, that it was dropped, and instead there were adopted the words `O Lord, bless these United States.”

There was so little solidarity in the USA at the time when this incident occurred that the people of America did not think that they were a nation. If the people of the United States could not feel that they were a nation, how difficult it is for Indians to think that they are a nation?

A great delusion

I remember the days when politically minded Indians, resented the expression “the people of India”. They preferred the expression “the Indian nation.” I am of opinion that in believing that we are a nation, we are cherishing a great delusion. How can people divided into several thousands of castes be a nation? The sooner we realise that we are not as yet a nation in the social and psychological sense of the world, the better for us. For then only we shall realise the necessity of becoming a nation and seriously think of ways and means of realising the goal. The realisation of this goal is going to be very difficult – far more difficult than it has been in the United States. The United States has no caste problem. In India there are castes. The castes are anti-national. In the first place because they bring about separation in social life. They are anti-national also because they generate jealousy and antipathy between caste and caste. But we must overcome all these difficulties if we wish to become a nation in reality. For fraternity can be a fact only when there is a nation. Without fraternity, equality and liberty will be no deeper than coats of paint.

These are my reflections about the tasks that lie ahead of us. They may not be very pleasant to some. But there can be no gainsaying that political power in this country has too long been the monopoly of a few and the many are only beasts of burden, but also beasts of prey. This monopoly has not merely deprived them of their chance of betterment, it has sapped them of what may be called the significance of life. These down-trodden classes are tired of being governed. They are impatient to govern themselves. This urge for self-realisation in the down-trodden classes must no be allowed to devolve into a class struggle or class war. It would lead to a division of the House. That would indeed be a day of disaster. For, as has been well said by Abraham Lincoln, a House divided against itself cannot stand very long. Therefore the sooner room is made for the realisation of their aspiration, the better for the few, the better for the country, the better for the maintenance for its independence and the better for the continuance of its democratic structure. This can only be done by the establishment of equality and fraternity in all spheres of life. That is why I have laid so much stresses on them.

I do not wish to weary the House any further. Independence is no doubt a matter of joy. But let us not forget that this independence has thrown on us great responsibilities. By independence, we have lost the excuse of blaming the British for anything going wrong. If hereafter things go wrong, we will have nobody to blame except ourselves. There is great danger of things going wrong. Times are fast changing. People including our own are being moved by new ideologies. They are getting tired of Government by the people. They are prepared to have Governments for the people and are indifferent whether it is Government of the people and by the people. If we wish to preserve the Constitution in which we have sought to enshrine the principle of Government of the people, for the people and by the people, let us resolve not to be tardy in the recognition of the evils that lie across our path and which induce people to prefer Government for the people to Government by the people, nor to be weak in our initiative to remove them. That is the only way to serve the country. I know of no better.

The Sabarimala Judgment: Reformative and Disruptive

The Sabarimala Judgment: Reformative and Disruptive

ELIZABETH SESHADRI

05 OCT 2018 18:35 IST

In this photo taken on November 18, 2013, devotees wait with offerings at the Lord Ayyappa Temple in Sabarimala. The Supreme Court had said that women have the constitutional right to enter Sabarimala temple in Kerala and pray like men without being discriminated against. File photo: PTI

The recent Supreme Court judgment allowing women access to the Sabarimala temple has held that the constitutional guarantees of dignity and equality scores over old customs and practices cutting across religions. In this article, Elizabeth Seshadri, Advocate, Madras High Court, analyses the various aspects of the judgment and India’s evolving jurisprudence on religious rights.

When Arunachalam Muruganantham, on whom the Bollywood movie ‘Pad Man’ is based, was asked what the most difficult part of his job was, he said it was the superstitions surrounding menstruation in India. “Women in rural India have the strangest beliefs surrounding the monthly period.” He recalls a story of how the girls in the Nilgiris worried about using sanitary towels, as they believed their eyes would be pulled out by the deity.¹

It is in this backdrop that the judgement of the Supreme Court in Indian Young Lawyers Association v. State of Kerala, also called the ‘Sabarimala judgement’, is a reformative one.

Background of the Case

The Sabarimala case arose out of a petition filed in public interest by a registered association of young lawyers, challenging the Constitutional validity of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which restricts the entry of women into the Sabarimala temple. These Rules were framed under the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965. This Act was enacted to make provisions for entry of all classes and sections of Hindus into places of public worship. Section 3 of the Act read as follows:

“Section 3: Places of public worship to open to all sections and classes of Hindus:- Notwithstanding anything to the contrary contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law or any decree or order of court, every place of public worship which is open to Hindus generally or to any section or class thereof, shall be open to all sections and classes of Hindus; and no Hindu of whatsoever section or class shall, in any manner, be prevented, obstructed or discouraged from entering such place of public worship, or from worshipping or offering prayers thereat, or performing any religious service therein, in the like manner and to the like extent as any other Hindu of whatsoever section or class may so enter, worship, pray or perform:

Provided that in the case of a place of public worship which is a temple founded for the benefit of any religious denomination or section thereof, the provisions of this section shall be subject to the right of that religious denomination or section, as the case may be, to manage its own affairs in the matter of religion.”

The State of Kerala framed Rules under this Act. Rule 3 read as follows:

“Rule 3: The classes of persons mentioned here under shall not be entitled to offer worship in any place of public worship or bathe in or use the water of any sacred tank, well, spring or water course appurtenant to a place of public worship whether situated within or outside precincts thereof, or any sacred place including a hill or hillock, or a road, street or pathways which is requisite for obtaining access to the place of public worship-

(a) Persons who are not Hindus.

(b) Women at such time during which they are not by custom and usage allowed to enter a place of public worship.

(c) Persons under pollution arising out of birth or death in their families.

(d) Drunken or disorderly persons.

(e) Persons suffering from any loathsome or contagious disease.

(f) Persons of unsound mind except when taken for worship under proper control and with the permission of the executive authority of the place of public worship concerned.

(g) Professional beggars when their entry is solely for the purpose of begging.”

The Travancore Devaswom Board issued two notifications in 1955 which read as follows:

“In accordance with the fundamental principle underlying the prathishta (installation) of the venerable, holy and ancient temple of Sabarimala, Ayyappans who had not observed the usual vows as well as women who had attained maturity were not in the habit of entering the above-mentioned temple for Darshan (worship) by stepping the Pathinettampadi. But of late, there seems to have been a deviation from this custom and practice. In order to maintain the sanctity and dignity of this great temple and keep up the past traditions, it is hereby notified that Ayyappans who do not observe the usual Vritham (vows) are prohibited from entering the temple by stepping the pathinettampadi and women between the ages of ten and fifty five are forbidden from entering the temple.”

Though the notification stated that the ages between 10 and 55 were to be excluded, it was recorded by the Kerala High Court that in practice the ages between the age of 10 and 50 were being excluded. The case before the Supreme Court of India was that Rule 3(b) was ultra vires of Section 3 of the Act and that women of any age could not be excluded from the temple.

This same issue had been considered by a Division bench of the Kerala High Court in 1992 in a public interest litigation filed by one S.Mahendran². The Kerala High Court had found that the exclusion of women between the ages of 10 and 50 from Sabarimala was in accordance with the usage prevalent from time immemorial and was, therefore, upheld. Fourteen years later, this issue was raised again; this time in the Supreme Court, leading to the judgment under discussion, wherein by a 4:1 majority the Supreme Court struck down the exclusion of women of any age group from entry to Sabarimala as unconstitutional.

India’s Evolving Jurisprudence on Religious Rights

Much of Indian jurisprudence on religion has evolved around what constitutes an essential religious practice. The two relevant Constitutional provisions under the head Right to Freedom of Religion are:

Article 25: (1) - Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

(2) Nothing in this Article shall affect the operation of any existing law or prevent the State from making any law –

a) Regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

b) Providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus;

Article 26: Subject to public order, morality and health, every religious denomination or any section thereof shall have the right -

a) to establish and maintain institutions for religious and charitable purposes;

b) to manage its own affairs in matters of religion;

c) to own and acquire movable and immovable property; and

d) to administer such property in accordance with law.

Indian jurisprudence has arisen over the years in cases where governments have passed laws to regulate what they see as secular activity, though it is associated with religious practice. The religious bodies have objected to government action on the ground that the activity is religious and not secular. In order to get the special rights under Article 26, most cases involved an attempt by groups to show themselves as a distinct religious denomination. The same was attempted in the Sabarimala case too. Though the dissenting judgement of Justice Malhotra gave the Ayyappans denominational status, the majority judgement held that the Ayyappans were not a separate religious denomination, but were Hindus. Thereafter, it was for the Court to find out if the practice of excluding women of a certain age from Sabarimala was an essential feature of Hinduism or not.

Indian jurisprudence has arisen over the years in cases where governments have passed laws to regulate what they see as secular activity, though it is associated with religious practice.

It is interesting to see the evolution of Indian jurisprudence through attempts by Indian Courts to distinguish between what is a “matter of religion” and what is not, in several cases over the decades.  This exercise is also desirable so that readers understand that the jurisprudence applied by the Supreme Court in the Sabarimala case is consistent with the principles that have evolved over decades and in relation to all religions uniformly.

One of the earliest cases arose when the Madras Hindu Religious and Charitable Endowments Act, 1951 was enacted to empower a statutory commissioner to intervene if they had ‘reason to believe’ that a religious institution was mismanaging funds. This Act was challenged by the Mathadhipathi of the Shirur Mutt who claimed that the law interfered with his right to manage the religious affairs of the Mutt.³ The Supreme Court examined the question, “Where is the line to be drawn between what are matters of religion and what are not?” The Court held:

“What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.”

This meant that the views of the followers of the religion were crucial to determine what constituted the essential aspects of a religion.

There were two other cases of the late 1950’s that contributed to the evolution of this essential practices doctrine. In one, the trustees of the temple of Sri Venkataramana of Moolky, who were managing the temple on behalf of the Gowda Saraswat Brahmins, challenged the Madras Temple Entry Authorisation Act, 1947 which threw open the doors of the temple to the Harijans.⁴ The Gowda Saraswat Brahmins claimed a right to exclude other communities from entering their temple as a matter of religion. Justice Venkatarama Iyer J, did not give the religious denomination complete autonomy in the matter of deciding what rights and ceremonies are essential to its religion. Instead, the Court examined scripture, ancient literature, the practice of Hindus and the role of temples and recognised that the exclusion was under the ceremonial law of the Hindus and was, therefore, an essential practice. This methodology had the inherent disability of attempting to make the Supreme Court a theological expert!

In the other case, the Qureshi Muslims of Bihar petitioned the Supreme Court challenging the ban on cow slaughter on the ground that it infringed on their fundamental right to religion as they were compelled by their religion to sacrifice cows on Bakrid.⁵  The Court, looking into the Islamic religious texts, found that there was no evidence to show that sacrifice of cows on Bakrid was an essential practice for the Qureshi Muslims. Again the “time immemorial” argument was put forth. (It is, after all, the easiest argument in a country built on an ancient civilisation!) The court looked at the texts and scriptures of that community to conclude that the practice claimed to be essential was not supported by religious tenets.

After the Gowda Saraswat and the Qureshi Muslims cases, Indian Courts found that they were doing the job of trying to be experts in theology and determine what is essentially religious. This was not an easy job to do as “scriptures and customs merge with bewildering complexity into superstition and dogma. Separating the grain from the chaff involves a complex adjudicatory function.”⁶

Soon thereafter, a claim by the Chadims of the tomb of Hazrat Khwaja Moin–Ud-Din Chisthi of Ajmer over the offerings from pilgrims to the Dargah reached the Supreme Court through a challenge to a Rajasthan Government legislation which constituted a committee to manage the Dargah⁷. P.B. Gajendragadkar J, while dismissing the case of the Chadims, warned that claims for protection under Article 26 may have to be carefully scrutinised. Otherwise “… even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 26.”

Very relevant to the present discussion are Gajendragadkar J’s warnings: “similarly, even practices, though religious, may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself… In other words, the protection under Article 26 must be confined to such religious practices as are an essential and an integral part of it and no other.”

Thus, we find the Court making the distinction between religious practices and superstitious beliefs. Mere superstitious beliefs should not be given constitutional protection in the garb of religious belief or practice. Thus, the essential practices test got one more element of “careful scrutiny” to keep imposter beliefs out.

Thus, we find the Court making the distinction between religious practices and superstitious beliefs. Mere superstitious beliefs should not be given constitutional protection in the garb of religious belief or practice. Thus, the essential practices test got one more element of “careful scrutiny” to keep imposter beliefs out.

In another case, the religious head of the Dawoodi Bohra community challenged the constitutional validity of the Bombay Prevention of Excommunication Act, 1949⁸ which provided that “Notwithstanding anything contained in any law, custom or usage … no excommunication of a member of any community shall be valid”. The majority of the Judges struck down the Excommunication Act as violating Article 25 and 26. However, the Bohra case is relevant for the lone dissent beautifully articulated by Chief Justice Sinha.

“… It is noteworthy that the right guaranteed by Art. 25 is an individual right as distinguished from the right of an organised body like a religious denomination or any section thereof, dealt with by Art. 26. Hence, every member of the community has the right, so long as he does not in any way interfere with the corresponding rights of others, to profess, practice and propagate his religion, and everyone is guaranteed his freedom of conscience. ………

The Constitution has left every person free in the matter of his relation to his Creator, if he believes in one. It is, thus, clear that a person is left completely free to worship God according to the dictates of his conscience, and that his right to worship as he pleased is unfettered so long as it does not come into conflict with any restraints, as aforesaid, imposed by the State in the interest of public order, etc. A person is not liable to answer for the verity of his religious views, and he cannot be questioned as to his religious beliefs, by the State or by any other person. Thus, though his religious beliefs are entirely his own and his freedom to hold those beliefs is absolute, he has not the absolute right to act in any way he pleased in exercise of his religious beliefs. He has been guaranteed the right to practice and propagate his religion, subject to the limitations aforesaid. His right to practice his religion must also be subject to the criminal laws of the country, validly passed with reference to actions which the legislature has declared to be of a penal character. Laws made by a competent legislature in the interest of public order and the like, restricting religious practices, would come within the regulating power of the State. For example, there may be religious practices of sacrifice of human beings, or sacrifice of animals in a way deleterious to the wellbeing of the community at large. It is open to the State to intervene, by legislation, to restrict or to regulate to the extent of completely stopping such deleterious practices. It must, therefore, be held that though the freedom of conscience is guaranteed to every individual so that he may hold any beliefs he likes, his actions in pursuance of those beliefs may be liable to restrictions in the interest of the community at large, as may be determined by common consent, that is to say, by a competent legislature. It was on such humanitarian grounds, and for the purpose of social reform, that so called religious practices like immolating a widow at the pyre of her deceased husband, or of dedicating a virgin girl of tender years to a God to function as a devadasi, or of ostracizing a person from all social contacts and religious communion on account of his having eaten forbidden food or taboo, were stopped by legislation.”

Chief Justice Sinha’s dissent articulated a view in favour of individual liberty, in the face of group religious claims. An appeal from the judgment in this case is pending consideration before a larger Bench in the Supreme Court.

An important deviation from the Shirur Mutt formula came to be articulated by Justice Gajendragadkar in 1964 in Tilkayat’s case,⁹ where he recognised that it is not possible to find solutions from within the community tenets, when conflicting evidence is produced in respect of rival contentions. The principle of letting the community decide its essential practices would break down when there was more than one voice for the community.

Thus, from the mid-1960’s, it was clear that the Courts would have to decide what the essential practices of a religion were.

Again in a case where a temple was thrown open to Dalits, the Swaminarayan sect challenged the Bombay Hindu Places of Public Worship (Entry Authorisation) Act, 1956 and sought rights to be exclusionary as they were a different denomination.¹⁰ Again Justice Gajendragadkar held:

“It may be conceded that the genesis of the suit is the genuine apprehension entertained by the appellants, but as often happens in these matters the said apprehension is founded on superstition, ignorance and complete misunderstanding of the true teachings of Hindu religion and of the real significance of the tenets and philosophy taught by Swaminarayan himself.”

Thus Courts began to look at practices from a pro-reform and anti-discrimination manner perspective.

The Ananda Margis were a group who claimed that one of their religious rites was the tandava dance which was to be performed with a skull, a small knife, trishul (trident) and a damaroo (pellet drum) and at intervals processions were intended to be taken out in public places accompanied by the dance. The police rejected their application for permission to take out a procession in the public streets. The Supreme Court held that the tandava dance was not an essential religious rite of the Ananda Margis, was of recent origin and even conceding that the dance was prescribed as a religious right for every Ananda Margi, it was not necessary to be performed in public.¹¹

In a challenge to the Uttar Pradesh Sri Kashi Vishwanatha Temple Act, 1983, which entrusted the management of the temple with the State, the Supreme Court again cautioned that “sometimes practices, religious or secular, are inextricably mixed up”¹².

A question arose before the Court whether the Travancore Devaswom Board could appoint a non-Malayalee brahmin as priest of the Kongorpilli Neerikodu Shiva temple.¹³ It was held:

“Any custom or usage irrespective of even any proof of their existence in pre-constitutional days cannot be countenanced as a source of law to claim any rights when it is found to violate human rights, dignity, social equality and the specific mandate of the Constitution and law made by Parliament. No usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by courts in the country.”

The Ananda Margis tandava dance again came into consideration before Court when their religious book was revised to prescribe the tandava dance as an essential religious practice.¹⁴

“Such alterable parts or practices are definitely not the 'core' of religion where the belief is based and religion is founded upon. It could only be treated as mere embellishments to the non-essential part or practices.”

Even when texts expressly stated a practice as an essential practice of the relatively new religion, Courts looked into whether the absence of the practice would make a fundamental change to the religion. Thus, a distinction was drawn between ‘the core of a religion’ and ‘mere embellishments’.

Again, the Court applied the test of constitutional legitimacy in a case where a Government Order which permitted “any qualified Hindu” to be an Archaka of a temple was challenged as violative of the petitioners’ right to appoint Archakas from their own denomination in accordance with the Agamas. The Court held that “the constitutional legitimacy, naturally, must supersede all religious beliefs or practices.”¹⁵

The courts were now emboldened to place constitutional values, dignity of individuals and social equality on a higher pedestal than religious claims.

When the practice of Triple Talak was challenged, the Court examined whether it was an essential practice to the Hanafi school of Muslims.¹⁶ The Court looked into Islamic jurisprudence and held that Triple Talak was not an essential practice. The Court observed that a practice does not acquire the sanction of religion simply because it is permitted and merely because a practice has continued for long; that by itself cannot make it valid.

Thus, over the decades, Indian Courts have played an important role in deciding what is or is not essential to a religion; and what practices are mere superstitions and beliefs couched in a religious colour. In a colourful country like India, with its myriad practices, beliefs and superstitions, the Courts have periodically been called upon to decide whether a practice was to be protected or not under the Right to Religious Freedom. The sieving process has been a difficult one often, but not one that the courts have shied away from. The Sabarimala case is one such where the court has boldly examined a deep-rooted belief that pervades Indian society at multiple levels — from our homes to our places of worship. This judgement takes the bull by the horns, refusing to find a way out from discussing the taboos of menstruation.

Exclusion of Women Was Not a Uniform Practice

Applying the essential practices test, the majority opinion of the Court finds that the practice of excluding women between the ages of ten and fifty from undertaking the pilgrimage and praying at the Sabarimala temple is not an essential part of the religion. The religious texts and tenets relied on by the Respondents did not indicate such an essential practice. At best, these documents indicate the celibate nature of Lord Ayyappa at the Sabarimala temple but do not establish a connection between the Lord’s celibate nature and exclusion of women. The Supreme Court noted the observations of the Kerala High Court in Mahendran’s case¹⁷ that even when old customs prevailed, women were allowed to visit the temple.

Applying the essential practices test, the majority opinion of the Court finds that the practice of excluding women between the ages of ten and fifty from undertaking the pilgrimage and praying at the Sabarimala temple is not an essential part of the religion.

The Kerala High Court had noted an incident where the Maharaja of Travancore, accompanied by the Maharani and the Divan, had visited the temple in 1115 ME. The High Court, while examining evidence, had noted that the temple had seen the presence of women worshippers of all ages for the first rice-feeding ceremony of their children. The Secretary of the Ayyappa Seva Sangham had deposed that young women were seen in Sabarimala during the previous ten to fifteen years. A former Devaswom Commissioner admitted that the first rice-feeding ceremony of her grandchild was conducted at the Sabarimala temple. The High Court found that during the twenty years preceding the decision, women irrespective of age were allowed to visit the temple when it opened for monthly poojas, but were prohibited from entering the temple only during Mandalam, Makaravilakku and Vishu seasons.¹⁸ The Supreme Court takes note of these observations by the Kerala High Court collected by evidence, to hold that the practice of excluding women from the temple was not a uniform practice. This also shows that denial of constitutional protection to the exclusionary practice will not result in a fundamental change in the character of the religion.¹⁹

So how did the Kerala High Court and the Supreme Court arrive at opposite conclusions on the same set of facts?

Thus the Supreme Court reiterated that it was not enough merely to go on the basis of the knowledge base of those who claim to be the ‘keepers of the religion’. Courts must carefully scrutinise so that practices that are not essential to the religion but simply don the colour of the religion are not given Constitutional protection.

The Supreme Court finds that the Kerala HC was incorrect in its conclusions in Mahendran’s case as it followed only the dictum in the Shirur Mutt case²⁰ and did not take note of the jurisprudence that evolved thereafter. The Kerala HC relied completely on the testimonies of the thanthris without an enquiry into its basis in religious texts or its essentiality to religion.²¹ Thus the Supreme Court reiterated that it was not enough merely to go on the basis of the knowledge base of those who claim to be the ‘keepers of the religion’. Courts must carefully scrutinise so that practices that are not essential to the religion but simply don the colour of the religion are not given Constitutional protection. The High Court had, in fact, given a direction to the Kerala government to provide Police assistance to enforce the ban on women between the ages of ten and fifty. The Supreme Court, through the Sabarimala judgement, refused such constitutional protection to the ban.

The Real Reasons for the Exclusion

Another impressive feature of the Sabarimala judgement is the readiness shown by the Supreme Court to dive deep into the reasons given for the exclusion of women of a certain age. The Kerala High Court’s reason of the “arduous nature of the journey” which could not be completed by women for physiological reasons is rejected by the Supreme Court as it is not even a religious reason to claim constitutional protection. This reason is also too paternalistic, and must be left to the individual choice of the devotee to decide whether she can take the arduous nature of the journey or not. The Court cannot promote such stereotypes and must lean in favour of interpretations of equality.

Breaking Free of Stereotypes

The Supreme Court looks at one more argument given to explain the exclusionary practice — the naisthika brahmacharya nature of Lord Ayyappa, and that celibacy is an important part of the 41-day vratham for the followers. It was stated that the presence of women distracts the devotees. While dismissing this reason, the Court frowns upon the attempt to impose the burden of a man’s celibacy on a woman and construct her as a cause for deviation. This argument is then employed to deny her access to spaces which she is entitled. Again the Court refuses to perpetrate stereotypes of a woman being too weak to keep the vratham. “The equality of human beings entails being free from the restrictive and dehumanising effect of stereotypes.”²²

This reminds one of the inter-generational dialogues within our families. Concerned about women’s safety, many a parent can be heard advising young girls to “dress modestly lest the men are provoked”. The youngsters shoot back with “these fellows rape babies and old women; women in sarees and burkhas too. It isn’t what we wear. It is what is in their heads.”

It is quite interesting to note the manner in which the Court refuses to indulge these fanciful ideas and cute little stories that surrounded the exclusion of women of menstruating age. In everyday life, we are often faced with a score of such arguments that appear charming and quaint in their interpretations to justify something which is apparently unjust. The fanciful arguments narrated as stories capture our fancy, get passed on, and lo and behold, new beliefs or superstitions are created. It is this process that happens when we are told that isolated spaces in our houses are for the benefit of menstruating women so that they can have rest from housework, or menstrual blood is powerful enough to do black magic with and so menstrual cloth must not be dried in the sun, or kumkum must not be offered to a widow, or women without husbands should not attend weddings et cetera. All these arguments of fancy promote beliefs which we may as a society gullibly accept or oppose at the risk of being labeled a rebel or struggle to come to terms with. Either which way, they cannot be given constitutional protection.

The Real Reason — the ‘Purity and Pollution’ Idea

Now, therefore, the other reason cited becomes significant. The fact that only women aged between ten and fifty have been excluded shows that they have been chosen based on a menstruating age. While asking the fundamental question “does the Constitution permit menstruation as a basis for a group to exclude a woman from worship”, all the judges writing the majority judgement held that the physiological features of a woman have no significance to her equal entitlements under the constitution. “The stigma around menstruation has been built up around traditional beliefs in the impurity of menstruating women. They have no place in a constitutional order. These beliefs have been used to shackle women, to deny them equal entitlements and subject them to the dictates of a patriarchal order. The menstrual status of a woman cannot be a valid constitutional basis to deny her the dignity of being and the autonomy of personhood. The menstrual status of a woman is deeply personal and an intrinsic part of her privacy. The Constitution must treat it as a feature on the basis of which no exclusion can be practised and no denial can be perpetrated. Nobody or group can use it as a barrier in a woman’s quest for fulfilment, including in her finding solace in the connect with the creator.”²³

The menstrual status of a woman is deeply personal and an intrinsic part of her privacy. The Constitution must treat it as a feature on the basis of which no exclusion can be practised and no denial can be perpetrated.

Thus, concrete individual rights got a higher status than vague group claims of a right.

With the above articulation, the Supreme Court entered our homes to be part of our everyday conversations. It became the wise old relative who will advise us: “Don’t keep your wives and sisters and daughters away from ceremonies and rituals and auspicious moments during their menstruating days. There is nothing impure about menstruation. Include her.” It also gives the basis on which we can stop giving our girls chemical pills to postpone menstruation when an auspicious event or ceremony is to happen in the family. It gives us the basis on which we can nudge our domestic help to not borrow money to do a song and dance to celebrate the first period of her daughter, and instead put the money into the girl’s college fund.

As we inch forward as a young nation built on ancient civilisational values, change is a heavily-resisted and slow process. We inch forward slowly through legislations, campaigns and court orders to uplift the status of our women. Every once in a while comes along a judgement that gives a big thrust to this slow, inching movement. Whether it was to make our work-spaces safer for our women or whether to recognise her property rights or whether to remove shackles on her choice of life partner, the Courts have accelerated the pace at which women’s lives stood to regain dignity in India. The Sabarimala judgement is one such accelerator. It is about cleaning the cobwebs in our head about menstruation and the ideas of impurity associated with it. It is about letting our girls free on those 60 days in a year without having to think that they are children of a lesser God during those days. It is about shifting the focus of our conversations from menstruation taboos to important issues like menstrual hygiene, better, more-affordable, more long-lasting sanitary protection, keeping access open to education, sports, travel, social life and all regular activities. The Sabarimala judgement is path-breaking to the effect that it becomes a powerful tool in our hands to help us break free of the mental blocks we hold in the name of religion.

‘Purity and Pollution’ Exclusions: a Practice of Untouchability

Another reformative feature of the Sabarimala judgement is the way it interprets ‘untouchability’ in Article 17 of the Constitution.

Article 17 -  “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law.

The Supreme Court in the Sabarimala judgement recognised the practice of excluding women based on ideas of ‘purity and pollution’ as a practice of untouchability.

The term untouchability was left undefined by the framers of the Constitution. Untouchability “in any form” is to cover all kinds. The Supreme Court in the Sabarimala judgement recognised the practice of excluding women based on ideas of ‘purity and pollution’ as a practice of untouchability. The systemic humiliation, exclusion and subjugation faced by women, the social exclusion of women, based on menstrual status, is but a form of untouchability.

This view of untouchability awakens us to gross realities around us — of the ‘two tumbler system’, the exclusion of followers of other religions from some kitchens, the exclusion of widows and unmarried women from rituals, the struggle to get widows remarried, the resistance to inter-caste and inter-religion relationships, and khap panchayats and honour killings, to name just a few social diseases. The judgement provokes us to think about our everyday realities of discrimination. It is left to us to use the judgement as a tool to clean the underlying cobwebs of our minds that promote these social diseases.

Constitutional Guarantee of Dignity

The Indian society is governed by the Constitution of India. Notions of purity and pollution which stigmatise individuals can have no place in a constitutional regime. Regarding menstruation as polluting or impure and, worse still, imposing exclusionary disabilities on the basis of menstrual status is against the dignity of women guaranteed by the Constitution. Dignity as a facet of Article 21 is firmly entrenched in the Constitution after the decision of the Nine Judge Bench in Justice Puttaswamy’s case.²⁴  Practices which legitimise menstrual taboos due to notions of purity and pollution, limit the ability of menstruating women to attain the freedom of movement, the right to education, and the right of entry to places of worship and eventually their access to the public sphere. Women have a right to control their own bodies. The menstrual status of a woman is an attribute of her privacy and person. Women have a constitutional entitlement that their biological processes must be free from social and religious practices that enforce segregation and exclusion. These practices result in humiliation and a violation of dignity.

Sabarimala: a Symbol for all Religions

The judgement also records that the notions of purity and pollution around menstruation are common across all the older religions. The idea of menstruating women polluting the surroundings has been used to exclude her from social activities in the interpretations of texts in Christianity, Hinduism, Islam, Judaism and Zoroastrianism. However, the more recent religions such as Sikhism and the Bahai Faith encourage their followers to see menstruation as a natural process and do not associate notions of ‘purity and pollution’ around it.²⁵

Lord Ayyappa is a beloved deity in Kerala and Tamil Nadu. It was stated in Court that Sabarimala is visited by Ayyappa-believers from Muslim and Christian faiths too. It isn’t difficult, therefore, to see this Sabarimala case as representative of a challenge to the ‘purity and pollution’ idea promoted by all religions. This case is not about one particular religion. It is about the ‘purity and pollution’ idea that affects one half of India’s population.

To Develop the Spirit of Reform: a Fundamental Duty

Now read all this in the context of the Fundamental duties:

Article 51 A - It shall be the duty of every citizen of India…

(e) to promote harmony and the spirit of common brotherhood amongst all people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;

(f) to value and preserve the rich heritage of our composite culture;…

(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;

This judgement is in the spirit of Article 51 A. It develops the spirit of inquiry and reform. It denounces practices derogatory to the dignity of women.

Whatever our standards be, the Supreme Court in the Sabarimala judgement has brought in one unifying moral standard that must be part of our conversations on morality cutting across religious lines — that of Constitutional morality.

We all have notions of morality shaped by our conversations at home. There is no one defining standard. Our religions play an important role in shaping our standards of morality. Some of us believe our standard is “do unto others as you want done unto you”; some believe that Karma dictates and we are but tools; and some believe the prescriptions of the Holy book dictate. Whatever our standards be, the Supreme Court in the Sabarimala judgement has brought in one unifying moral standard that must be part of our conversations on morality cutting across religious lines — that of Constitutional morality.

The Sabarimala judgement is bold — it does not shove difficult discussions under the carpet. It is Empathetic — it looks at a sparsely-discussed subject from the perspective of women who are victims of an entrenched social dictate. It is rooted in our fundamental constitutional values. It is focused — it does not get distracted by the beautiful interpretations and stories that accompany our practices. It is consistent with the jurisprudence that evolved over the decades on how to balance religious group rights and individual rights. It is comprehensive — it reflects in its four different opinions the fears of a country so deeply rooted in religion and fearful of breaking free from religious sanction; the fears of secular interference in our traditions in a pluralistic society and it addresses these fears and gives responsible reasons to break free. It is reformative and disruptive — it places the opportunity to reform in our hands and in our homes. It is empowering — it gives us the strength to challenge discrimination in the space of our personal laws, cutting across religions.

Justice Chandrachud articulates a doctrine that group rights have been recognised in the Fundamental Rights section of the Constitution so that the individuals in the group realise fulfillment and self-determination. Therefore, group rights must be subjected to individual rights.

It is in this backdrop that Justice Chandrachud’s listing of a Constitutional order of priorities is interesting. “While the Constitution is solicitous in its protection of religious freedom as well as denominational rights, it must be understood that dignity, liberty and equality constitute the trinity which defines the faith of the Constitution. Together these three values combine to define a constitutional order of priorities. Practices or beliefs which detract from these foundational values cannot claim legitimacy.”²⁶ Thus, Justice Chandrachud articulates a doctrine that group rights have been recognised in the Fundamental Rights section of the Constitution so that the individuals in the group realise fulfillment and self-determination. Therefore, group rights must be subjected to individual rights. If accepted, no practice will be afforded constitutional protection if it violates constitutional values of individual liberty, equality and dignity, even if it is shown to be an essential religious practice. We can find support for this thought in some of the earlier judgements. However, the Learned Judge leaves this doctrine to be tested and concretely articulated another day in a future case but leaves the idea on the table so that our conversations evolve.

In the upcoming Navaratri season, the effect of the Sabarimala judgement will be seen in  many houses, where all the girls will be told to attend every Puja and enjoy the Navaratri dancing and festivities on every day, without a concern whether it is that time of her month or not. It will be seen in homes where widows will be invited to join in the festivities and the gift-bags will not have to be divided into groups of ‘with kumkum’ and ‘without kumkum’. This pre-festival cleaning of cobwebs is a good way to launch the celebrations.

[Elizabeth Seshadri practices law in the Madras High Court].

Related Link: Sujatha, R and Gopinath, R. 2018. "Hype over Pad Man but India's Menstrual Woes Continue", The Hindu Centre for Politics and Public Policy, March 12.

Resources: "The Supreme Court allows entry of women of all age groups into the Ayyappa temple".

References:

[All URLs last accessed on October 4, 2018.]

1. Kannadasan, A. 2018. “Meet Muruganantham, The Real Pad Man”, The Hindu, February 05.  [https://www.thehindu.com/society/the-real-pad-man-muruganantham-before-the-release-of-pad-man/article22658314.ece].

2. S.Mahendran vs. The Secretary, Travancore Devaswom Board, Thiruvananthapuram, AIR 1993 Ker 42.

3. Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiyar of Shirur Mutt, (1954) SCR 1005.

4.Sri Venkataramana Devaru vs State of Mysore, (1958) SCR 895.

5. Mohd Hanif Quareshi vs State of Bihar, (1959) SCR 629.

6. At paragraph 16 of Justice Chandrachud’s judgement in the Sabarimala judgment.

7. Durgah Committee, Ajmer vs Syed Hussain Ali, (1962) 1 SCR 383.

8. Sardar Syedna Taher Saifudeen Sahib vs. State of Bombay, (1962) Supp (2) SCR 496.

9. Tilkayat Shri Govindlalji Maharaj vs. State of Rajasthan & ors, (1964) 1 SCR 561.

10. Sastri Yagnapurushadji & other vs. Muldas Brewdardas Vaishya & anr, AIR 1966 1119.

11. Acharya Jagdishwaranand Avadhuta vs Commissioner of Police, Calcutta, (1983) 4 SCC 522.

12. Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi vs. State of UP, (1997) 4 SCC 606.

13. N.Adithayan vs. Travancore Devaswom Board, (2002) 8 SCC 106.

14. Commissioner of Police v. Acharya Jagdishwarananda Avadhuta, (2004) 12 SCC 770.

15. Adi Saiva Sivachariyargal Nala Sangam vs. Government of Tamil Nadu, (2016) 2 SCC 725.

16. Shayara Banu vs Union of India, (2017) 9 SCC 1.

17. S.Mahendran vs. The Secretary, Travancore Devaswom Board, Thiruvananthapuram, AIR 1993 Ker 42.

18. At paragraph 51 of Justice Chandrachud’s judgement in the Sabarimala judgment.

19. Ibid.

20. Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiyar of Shirur Mutt, (1954) SCR 1005.

21. At paragraph 52 of Justice Chandrachud’s judgement in the Sabarimala judgment.

22. At paragraph 56 of Justice Chandrachud’s judgement in the Sabarimala judgment.

23. At paragraph 57 of Justice Chandrachud’s judgement in the Sabarimala judgment.

24. Justice K.S.Puttaswamy & anr vs. Union of India & others, (2017) 10 SCC 1.

25. At paragraph 24 of Justice Nariman’s judgement in the Sabarimala case.

26. At paragraph 49 of Justice Chandrachud’s judgement in the Sabarimala judgment.

Rajasthan CM Gehlot’s brother moves HC in ED case

Ashok Gehlot (File photo)

NEW DELHI: The Enforcement Directorate's money laundering case against Agrasain Gehlot, elder brother of Rajasthan chief minister Ashok Gehlot, seems to have hit a roadblock with senior Gehlot moving the Rajasthan HC against ED's summonses. The anti-money laundering agency has so far issued three summonses to Agrasain, asking him to appear before its investigating officers at its Delhi headquarters.
The ED has also been looking for another prime accused in the fertiliser scam case, Pravin Saraf of Saraf Impex who, like Gehlot, has not honoured any of the agency's summonses issued to him. According to agency officers, Saraf is absconding though he has written to the agency seeking postponement of his questioning. The ED, which was contemplating other actions that may include arrest of the accused, is finding it difficult to proceed in the case in view of the court cases.

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Gehlot's case has been listed for Monday before the Jodhpur bench of the Rajasthan HC where the ED has been served a notice to defend its case, according to sources. According to a preliminary probe, Anupam Krishi, the firm owned by Gehlot, was engaged in alleged illegal export of potash in league with Saraf Impex Pvt Ltd. Anupam Krishi was the origin of the exports made by Saraf Impex. The total illegal exports of MOP (Muriate of Potash) is around 30,000 tons worth Rs 130 crore. Agrasain is accused of receiving huge commission.