16 and 18 JAN 2016

Religious Freedom VS Judicial Activism – Case of Sabarimala

Background :- Recently courts of India had come into contrarian positions related to practices related to religions at certain places/sects. One of such case is the entry of women in Sabarimala temple.

Recently  Supreme Court declared that it would hear a public interest litigation (PIL) on whether women certain age (10-50) can be denied the right to enter the Ayyappa temple in Sabarimala, Kerala. The bench, in its observation to the Kerala government and the temple authorities, remarked that “unless you have a constitutional right, you cannot prohibit entry.

Judgements in the past:-

In 1993, the Kerala High Court had held that the Travancore Devaswom Board, the authority that manages the Sabarimala temple, could restrict access to women who were in the 10-50 age group. It had concluded that the “restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial,” and that “such restriction imposed by the Devaswom Board is not violative of Articles 15, 25 and 26 of the Constitution of India.

Religion and State:-

Though India is a secular country yet there is no strict separation between state and religion.

Unlike any other secular state, the Republic of India was conceived with a mandate for social revolution. This makes our situation unprecedented and unique. We do not have a “wall of separation” between religion and state that, for instance, exists in the United States. Furthermore, the founders of the Indian republic have enjoined the state to intervene in social customs and redress grievances arising out of them so that all citizens can equitably enjoy their constitutional rights and privileges.

This is evident in the way Article 25, which deals with freedom of religion, is constructed. Unlike other articles dealing with the fundamental rights, it begins with caveats (“subject to public order, morality and health and to the other provisions”) before stating the right (“all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion”.)

It goes on to empower the state to regulate and restrict non-religious activities associated with religion. It allows the state to make laws “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”. Interestingly, the term “Hindus” here includes “persons professing the Sikh, Jaina or Buddhist religion”. The rights of religious minorities are protected under subsequent articles. The asymmetries that arise from these articles are causes of grievances, disgruntlements and contestations that vitiate our politics to this day.

By words of Dr. B.R. Ambedkar:- “the religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill.”

In other words, a strict separation between religion and state would have prevented the Constitution from carrying out social revolution.

In the early decades of our republic, the Supreme Court evolved an “essential religious practices doctrine” that spelt out the outer limits of what could be called the sole domain of religion. Unfortunately, over the years, this doctrine was interpreted in an elastic, and sometimes arbitrary manner. Judges gave themselves the power to determine what constitutes essential religious practice not just for one religion, but for all of them.

India might be the only republic where the judiciary can pronounce on matters not only relating to law, but also those concerning theology. Thus, courts have ruled on topics like the Jain practice of Santhara (voluntary fasting to death); and on who can and cannot become an archaka (priest). They have even pronounced on rather vexed questions like what should be the shape of the markings on the temple elephant’s head.

Case of Sabarimala – Gender equality vs. Judicial overreach:-

“Caesaropapism” is a term used to describe a state of complete subordination of religion to the secular state. India runs the risk of being in thrall of a variant of this, a condition that can be termed “judiciopapism”, where judges can completely overrule religious authority. With each judgment that shrinks the scope of what is considered an “essential religious practice”, the risk grows.

To suggest that this is not a bad thing because it delivers progressive results is similar to contending that dictatorships are good because they can produce results that democracies struggle to achieve. The revolutionary makers of our republic certainly did not envisage a “judiciopapist” order. Even the strongest argument in favour of secularism cannot condone such a state of affairs.

The more the state takes over the task of social reform, the less likely it is to emerge from within the society.

Religious traditions often respond to external interventions by growing more conservative and resisting reform. A democracy is unlikely to muster the will to see through state-imposed reform, undermining its success. Politics in a society like ours, with its many religions and sects, is likely to create logjams to even the most basic social reforms. Note how the case for a Uniform Civil Code has become a ground for communal politics.

Further, attempts by the state at a “social revolution” only weaken efforts of social reformers who belonged to various communities. From Buddha to Kabir, from Guru Nanak to Narayana Guru, India has historically seen social reformers emerge as a response to orthodoxy and rigidity. Independent India has seen fewer of them, perhaps because the Indian republic has arrogated that responsibility to itself.

The reformist agenda of the Indian state at the expense of religious freedom and neutrality.” The caveats are eating into the right.

Conclusion :-

Any reform to be successful has to come within from society and social reformer and civil society has to show the way . If the reforms are thrusted upon society as part of a judicial order – it would not be successful. Deciphering theology , moreover is not a court’s domain. However, over time due to one factor or other courts of India have shown the way for social reform.What should be the best course of action is yet to be found.But to blame the courts on the grounds that it is eating into religious freedom is also holds no water because  if we look at our past , for example the case of Sati , until and unless it was banned by a law – it remained a social practice. But to arrive at that law, the general civil consensus was achieved by social reformers such as Raja Ram Mohan Roy. Hence case of this nature has two fold- first it has to go through the public scrutiny and general consensus has to be arrived and second it should be debated in parliament and not in court rooms , thus by giving heed to every section of society through their representatives . But , it is often observed that politicians don’t interfere with religious customs for the obvious reasons of politics and the courts are left to decide matters of this nature.

New words for the old issues :-

The India Meteorological Department (IMD) has officially expunged the word “drought” from its vocabulary, months after it struck a contrarian note and correctly forecast one of India’s severest monsoon deficits last year.

According to a circular issued by the department last Thursday, the move is part of a decision to do away with or re-define terms that are not scientifically precise. Beginning this season, for instance, if India’s monsoon rainfall were to dip below 10 per cent of the normal and span between 20 and 40 per cent of the country’s area, it would be called a “deficient” year instead of an “All India Drought Year” as the IMD’s older manuals would say. A more severe instance, where the deficit exceeds 40 per cent and would have been called an “All India Severe Drought Year,” will now be a “Large Deficient Year”.

The IMD has never used the term “drought” in its forecasts and has maintained that declaring droughts was the prerogative of States.

The agency had several definitions of drought: meteorological, hydrological and agricultural, and it was quite possible for a State to have a meteorological drought — 90 per cent shortfall of the average monsoon rainfall — but not suffer an agricultural drought —if the shortfall didn’t affect more than 20 per cent of the State’s area. “Declaring a drought has never been the IMD’s mandate and, in fact, not even that of the Central government,”

SAMAR:-System of Aerosol Monitoring and Research

The Indian Meteorological Department (IMD) has launched a System of Aerosol Monitoring and Research (SAMAR). It will help the country in studying concentration of black carbon in atmosphere due to air pollution and its impact on climate.

Aerosols are a subset of air pollution that contains gases, fumes and dust in harmful proportion. Aerosols particles can be both solid and liquid which also affects environmental visibility.

Bharat Innovation Fund:-

The Bharat Innovation Fund is a public-private-academia partnership set up by Indian Institute of Management (IIM) Ahmedabad’s Centre for Innovation Incubation and Entrepreneurship (CIIE)

It will support innovation and innovative startups in areas of healthcare and life-sciences, sustainability, and digital technologies.The Fund will use important tools such as labs, mentorship, funding, and networking to support entrepreneurs who take on hard challenges of an ever-broadening Indian market.

Since its launch in the Startup Konnect event, the Bharat Fund has received pledges from several government and corporate entities, such as the Department of Industrial Promotion and Policy (DIPP), Ministry of New and Renewable Energy (MNRE), Tata Trusts, and others.

Source – The Hindu, PIB, IMD etc