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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Steve Ovett, the famous British middle-distance athlete, won the 800-metres gold medal at the Moscow Olympics of 1980. Just a few days later, he was about to win a 5,000-metres race at London’s Crystal Palace. Known for his burst of acceleration on the home stretch, he had supreme confidence in his ability to out-sprint rivals. With the final 100 metres remaining,
[wptelegram-join-channel link=”https://t.me/s/upsctree” text=”Join @upsctree on Telegram”]Ovett waved to the crowd and raised a hand in triumph. But he had celebrated a bit too early. At the finishing line, Ireland’s John Treacy edged past Ovett. For those few moments, Ovett had lost his sense of reality and ignored the possibility of a negative event.
This analogy works well for the India story and our policy failures , including during the ongoing covid pandemic. While we have never been as well prepared or had significant successes in terms of growth stability as Ovett did in his illustrious running career, we tend to celebrate too early. Indeed, we have done so many times before.
It is as if we’re convinced that India is destined for greater heights, come what may, and so we never run through the finish line. Do we and our policymakers suffer from a collective optimism bias, which, as the Nobel Prize winner Daniel Kahneman once wrote, “may well be the most significant of the cognitive biases”? The optimism bias arises from mistaken beliefs which form expectations that are better than the reality. It makes us underestimate chances of a negative outcome and ignore warnings repeatedly.
The Indian economy had a dream run for five years from 2003-04 to 2007-08, with an average annual growth rate of around 9%. Many believed that India was on its way to clocking consistent double-digit growth and comparisons with China were rife. It was conveniently overlooked that this output expansion had come mainly came from a few sectors: automobiles, telecom and business services.
Indians were made to believe that we could sprint without high-quality education, healthcare, infrastructure or banking sectors, which form the backbone of any stable economy. The plan was to build them as we went along, but then in the euphoria of short-term success, it got lost.
India’s exports of goods grew from $20 billion in 1990-91 to over $310 billion in 2019-20. Looking at these absolute figures it would seem as if India has arrived on the world stage. However, India’s share of global trade has moved up only marginally. Even now, the country accounts for less than 2% of the world’s goods exports.
More importantly, hidden behind this performance was the role played by one sector that should have never made it to India’s list of exports—refined petroleum. The share of refined petroleum exports in India’s goods exports increased from 1.4% in 1996-97 to over 18% in 2011-12.
An import-intensive sector with low labour intensity, exports of refined petroleum zoomed because of the then policy regime of a retail price ceiling on petroleum products in the domestic market. While we have done well in the export of services, our share is still less than 4% of world exports.
India seemed to emerge from the 2008 global financial crisis relatively unscathed. But, a temporary demand push had played a role in the revival—the incomes of many households, both rural and urban, had shot up. Fiscal stimulus to the rural economy and implementation of the Sixth Pay Commission scales had led to the salaries of around 20% of organized-sector employees jumping up. We celebrated, but once again, neither did we resolve the crisis brewing elsewhere in India’s banking sector, nor did we improve our capacity for healthcare or quality education.
Employment saw little economy-wide growth in our boom years. Manufacturing jobs, if anything, shrank. But we continued to celebrate. Youth flocked to low-productivity service-sector jobs, such as those in hotels and restaurants, security and other services. The dependence on such jobs on one hand and high-skilled services on the other was bound to make Indian society more unequal.
And then, there is agriculture, an elephant in the room. If and when farm-sector reforms get implemented, celebrations would once again be premature. The vast majority of India’s farmers have small plots of land, and though these farms are at least as productive as larger ones, net absolute incomes from small plots can only be meagre.
A further rise in farm productivity and consequent increase in supply, if not matched by a demand rise, especially with access to export markets, would result in downward pressure on market prices for farm produce and a further decline in the net incomes of small farmers.
We should learn from what John Treacy did right. He didn’t give up, and pushed for the finish line like it was his only chance at winning. Treacy had years of long-distance practice. The same goes for our economy. A long grind is required to build up its base before we can win and celebrate. And Ovett did not blame anyone for his loss. We play the blame game. Everyone else, right from China and the US to ‘greedy corporates’, seems to be responsible for our failures.
We have lowered absolute poverty levels and had technology-based successes like Aadhaar and digital access to public services. But there are no short cuts to good quality and adequate healthcare and education services. We must remain optimistic but stay firmly away from the optimism bias.
In the end, it is not about how we start, but how we finish. The disastrous second wave of covid and our inability to manage it is a ghastly reminder of this fact.