A while back, the Supreme Court declared that it would hear a public interest litigation (PIL) on whether women of menstrual age 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 [to women].”
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.” This is the position that the Supreme Court revisited later in the context of arguments of gender equality and fundamental rights. In doing so, it yet again wade into the paradoxical waters of a secular state making religious policies.
No strict religion-state separation
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, practise 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.
Why did the wise people who drafted a remarkably liberal, secular and modern Constitution decide to give the state so much power over religion?
The words of Dr. B.R. Ambedkar, Chairman of the Drafting Committee, give us some insight. Arguing for a minimalist definition of what constitutes religion — and hence needs to be kept outside the domain of the state — he held that “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.
The higher judiciary’s decisions are seen as legitimate among the public because of the relative credibility it enjoys. Judicial activism and encroachment into legislative and executive domains add to its popularity. Thus, it was not surprising that the Supreme Court declared that the Sabarimala temple must be thrown open to women of all ages.
Gender equality vs. judicial overreach
It was seen as another victory for the cause of gender equality, even if only a miniscule proportion of women are likely to ever exercise that right. Even women who are in a position to visit the temple might choose not to do so out of a certain regard for norms and practices. And some may choose to visit and society, traditions and norms must change to accommodate them.
Yet, we should be wary of a judiciary that encroaches on more domains, even for causes we consider as desirable and good.
“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.
Why should we care?
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.
Worse, 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.
Ronojoy Sen rightly notes that court rulings have “furthered the reformist agenda of the Indian state at the expense of religious freedom and neutrality.” The caveats are eating into the right. More significant than the issue of whether women should be allowed entry into the Sabarimala temple is the question of whether secular judges ought to be the ones making that call.
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The United Nations has shaped so much of global co-operation and regulation that we wouldn’t recognise our world today without the UN’s pervasive role in it. So many small details of our lives – such as postage and copyright laws – are subject to international co-operation nurtured by the UN.
In its 75th year, however, the UN is in a difficult moment as the world faces climate crisis, a global pandemic, great power competition, trade wars, economic depression and a wider breakdown in international co-operation.
Still, the UN has faced tough times before – over many decades during the Cold War, the Security Council was crippled by deep tensions between the US and the Soviet Union. The UN is not as sidelined or divided today as it was then. However, as the relationship between China and the US sours, the achievements of global co-operation are being eroded.
The way in which people speak about the UN often implies a level of coherence and bureaucratic independence that the UN rarely possesses. A failure of the UN is normally better understood as a failure of international co-operation.
We see this recently in the UN’s inability to deal with crises from the ethnic cleansing of the Rohingya Muslims in Myanmar, to civil conflict in Syria, and the failure of the Security Council to adopt a COVID-19 resolution calling for ceasefires in conflict zones and a co-operative international response to the pandemic.
The UN administration is not primarily to blame for these failures; rather, the problem is the great powers – in the case of COVID-19, China and the US – refusing to co-operate.
Where states fail to agree, the UN is powerless to act.
Marking the 75th anniversary of the official formation of the UN, when 50 founding nations signed the UN Charter on June 26, 1945, we look at some of its key triumphs and resounding failures.
Five successes
1. Peacekeeping
The United Nations was created with the goal of being a collective security organisation. The UN Charter establishes that the use of force is only lawful either in self-defence or if authorised by the UN Security Council. The Security Council’s five permanent members, being China, US, UK, Russia and France, can veto any such resolution.
The UN’s consistent role in seeking to manage conflict is one of its greatest successes.
A key component of this role is peacekeeping. The UN under its second secretary-general, the Swedish statesman Dag Hammarskjöld – who was posthumously awarded the Nobel Peace prize after he died in a suspicious plane crash – created the concept of peacekeeping. Hammarskjöld was responding to the 1956 Suez Crisis, in which the US opposed the invasion of Egypt by its allies Israel, France and the UK.
UN peacekeeping missions involve the use of impartial and armed UN forces, drawn from member states, to stabilise fragile situations. “The essence of peacekeeping is the use of soldiers as a catalyst for peace rather than as the instruments of war,” said then UN Secretary-General Javier Pérez de Cuéllar, when the forces won the 1988 Nobel Peace Prize following missions in conflict zones in the Middle East, Africa, Asia, Central America and Europe.
However, peacekeeping also counts among the UN’s major failures.
2. Law of the Sea
Negotiated between 1973 and 1982, the UN Convention on the Law of the Sea (UNCLOS) set up the current international law of the seas. It defines states’ rights and creates concepts such as exclusive economic zones, as well as procedures for the settling of disputes, new arrangements for governing deep sea bed mining, and importantly, new provisions for the protection of marine resources and ocean conservation.
Mostly, countries have abided by the convention. There are various disputes that China has over the East and South China Seas which present a conflict between power and law, in that although UNCLOS creates mechanisms for resolving disputes, a powerful state isn’t necessarily going to submit to those mechanisms.
Secondly, on the conservation front, although UNCLOS is a huge step forward, it has failed to adequately protect oceans that are outside any state’s control. Ocean ecosystems have been dramatically transformed through overfishing. This is an ecological catastrophe that UNCLOS has slowed, but failed to address comprehensively.
3. Decolonisation
The idea of racial equality and of a people’s right to self-determination was discussed in the wake of World War I and rejected. After World War II, however, those principles were endorsed within the UN system, and the Trusteeship Council, which monitored the process of decolonisation, was one of the initial bodies of the UN.
Although many national independence movements only won liberation through bloody conflicts, the UN has overseen a process of decolonisation that has transformed international politics. In 1945, around one third of the world’s population lived under colonial rule. Today, there are less than 2 million people living in colonies.
When it comes to the world’s First Nations, however, the UN generally has done little to address their concerns, aside from the non-binding UN Declaration on the Rights of Indigenous Peoples of 2007.
4. Human rights
The Human Rights Declaration of 1948 for the first time set out fundamental human rights to be universally protected, recognising that the “inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.
Since 1948, 10 human rights treaties have been adopted – including conventions on the rights of children and migrant workers, and against torture and discrimination based on gender and race – each monitored by its own committee of independent experts.
The language of human rights has created a new framework for thinking about the relationship between the individual, the state and the international system. Although some people would prefer that political movements focus on ‘liberation’ rather than ‘rights’, the idea of human rights has made the individual person a focus of national and international attention.
5. Free trade
Depending on your politics, you might view the World Trade Organisation as a huge success, or a huge failure.
The WTO creates a near-binding system of international trade law with a clear and efficient dispute resolution process.
The majority Australian consensus is that the WTO is a success because it has been good for Australian famers especially, through its winding back of subsidies and tariffs.
However, the WTO enabled an era of globalisation which is now politically controversial.
Recently, the US has sought to disrupt the system. In addition to the trade war with China, the Trump Administration has also refused to appoint tribunal members to the WTO’s Appellate Body, so it has crippled the dispute resolution process. Of course, the Trump Administration is not the first to take issue with China’s trade strategies, which include subsidises for ‘State Owned Enterprises’ and demands that foreign firms transfer intellectual property in exchange for market access.
The existence of the UN has created a forum where nations can discuss new problems, and climate change is one of them. The Intergovernmental Panel on Climate Change (IPCC) was set up in 1988 to assess climate science and provide policymakers with assessments and options. In 1992, the UN Framework Convention on Climate Change created a permanent forum for negotiations.
However, despite an international scientific body in the IPCC, and 165 signatory nations to the climate treaty, global greenhouse gas emissions have continued to increase.
Under the Paris Agreement, even if every country meets its greenhouse gas emission targets we are still on track for ‘dangerous warming’. Yet, no major country is even on track to meet its targets; while emissions will probably decline this year as a result of COVID-19, atmospheric concentrations of greenhouse gases will still increase.
This illustrates a core conundrum of the UN in that it opens the possibility of global cooperation, but is unable to constrain states from pursuing their narrowly conceived self-interests. Deep co-operation remains challenging.
Five failures of the UN
1. Peacekeeping
During the Bosnian War, Dutch peacekeeping forces stationed in the town of Srebrenica, declared a ‘safe area’ by the UN in 1993, failed in 1995 to stop the massacre of more than 8000 Muslim men and boys by Bosnian Serb forces. This is one of the most widely discussed examples of the failures of international peacekeeping operations.
On the massacre’s 10th anniversary, then UN Secretary General Kofi Annan wrote that the UN had “made serious errors of judgement, rooted in a philosophy of impartiality”, contributing to a mass murder that would “haunt our history forever”.
If you look at some of the other infamous failures of peacekeeping missions – in places such as Rwanda, Somalia and Angola – it is the limited powers given to peacekeeping operations that have resulted in those failures.
2. The invasion of Iraq
The invasion of Iraq by the US in 2003, which was unlawful and without Security Council authorisation, reflects the fact that the UN is has very limited capacity to constrain the actions of great powers.
The Security Council designers created the veto power so that any of the five permanent members could reject a Council resolution, so in that way it is programmed to fail when a great power really wants to do something that the international community generally condemns.
In the case of the Iraq invasion, the US didn’t veto a resolution, but rather sought authorisation that it did not get. The UN, if you go by the idea of collective security, should have responded by defending Iraq against this unlawful use of force.
The invasion proved a humanitarian disaster with the loss of more than 400,000 lives, and many believe that it led to the emergence of the terrorist Islamic State.
3. Refugee crises
The UN brokered the 1951 Refugee Convention to address the plight of people displaced in Europe due to World War II; years later, the 1967 Protocol removed time and geographical restrictions so that the Convention can now apply universally (although many countries in Asia have refused to sign it, owing in part to its Eurocentric origins).
Despite these treaties, and the work of the UN High Commission for Refugees, there is somewhere between 30 and 40 million refugees, many of them, such as many Palestinians, living for decades outside their homelands. This is in addition to more than 40 million people displaced within their own countries.
While for a long time refugee numbers were reducing, in recent years, particularly driven by the Syrian conflict, there have been increases in the number of people being displaced.
During the COVID-19 crisis, boatloads of Rohingya refugees were turned away by port after port. This tragedy has echoes of pre-World War II when ships of Jewish refugees fleeing Nazi Germany were refused entry by multiple countries.
And as a catastrophe of a different kind looms, there is no international framework in place for responding to people who will be displaced by rising seas and other effects of climate change.
4. Conflicts without end
Across the world, there is a shopping list of unresolved civil conflicts and disputed territories.
Palestine and Kashmir are two of the longest-running failures of the UN to resolve disputed lands. More recent, ongoing conflicts include the civil wars in Syria and Yemen.
The common denominator of unresolved conflicts is either division among the great powers, or a lack of international interest due to the geopolitical stakes not being sufficiently high. For instance, the inaction during the Rwandan civil war in the 1990s was not due to a division among great powers, but rather a lack of political will to engage.
In Syria, by contrast, Russia and the US have opposing interests and back opposing sides: Russia backs the government of the Syrian dictator Bashar al-Assad, whereas the US does not.
5. Acting like it’s 1945
The UN is increasingly out of step with the reality of geopolitics today.
The permanent members of the Security Council reflect the division of power internationally at the end of World War II. The continuing exclusion of Germany, Japan, and rising powers such as India and Indonesia, reflects the failure to reflect the changing balance of power.
Also, bodies such as the IMF and the World Bank, which are part of the UN system, continue to be dominated by the West. In response, China has created potential rival institutions such as the Asian Infrastructure Investment Bank.
Western domination of UN institutions undermines their credibility. However, a more fundamental problem is that institutions designed in 1945 are a poor fit with the systemic global challenges – of which climate change is foremost – that we face today.