Reality Check India

The Sabarimala judgment and its impact on Hindus

Posted in Uncategorized by realitycheck on October 2, 2018

Lets start with this. Imagine if the Sabarimala temple put up this notice in approaches to the temple.

Dear Sabarimala Devotees 

As you are aware, we the devotees of  Swamy Ayyappa ardently  believe that in Sabarimala he is manifest as a Naishtika Brahmachari. Furthermore, we believe  that when a male deity is worshipped as a naishtika brahmachari, the specific agamas of the temple — based on the injunction in Yajnavalkya Smriti — impose the condition that he not be subjected to the company of women aged 10 to 50 — in any way.

Recently the judges of the  Supreme Court of the secular state of India  have ruled that this Naistika Brahmachari  format  is  “unconstitutional”.  True women devotees of Swamy Ayyappa by very definition subscribe to the same faith that is shared by all of us and they would never act in a destructive manner for self, fellow believers, and for the deity. Lakhs of women devotees have taken to the streets in protests against this outside interference.

 Hinduism offers a marketplace of paths, there are other forms of Swamy Ayyappa or countless other deities.   Therefore, we kindly request women non-devotees to respect our faith that forms an integral part of this particular shrine. Thank you.

This is a direct statement of the deepest beliefs held by the body of devotees – whether some court calls this body a legal denomination or not. The net effect after reading this notice is –  only the truly hostile woman would venture into the shrine to show defiance or make a political statement.

How will the secular state deal with the situation caused by this notice?  The answer – I am afraid can be very alarming.  The notice discourages women by citing the shared faith.  The state can only respond to  this by  committing even bigger constitutional crimes of curtailing Freedom of Speech or even Forced speech.  For instance, a  court can rule that such a direct expression of your faith is itself against constitutional values and hence is unprotected.  You may even be asked to put a humiliating reverse notice repudiating your own previously held  faith and and creating a conducive messaging for women. Or the Communist government of Kerala can use tax money to do it for you.  They can issue a notice in papers discrediting the faith system, announcing the new faith and inviting women to visit. There are already reports of such notices planned.  In the USA, they have an explicit “Lemon Test” that exists to prevent exactly this type of bizarre and endless state entanglement with religion.  Just how far will the Idea of India judicial system go?

Such judicial adventure raids put the pagan polytheists at a distinct disadvantage compared to the Christians and Muslims. This is due to three things

  1. dramatically larger surface area of Hindu practices versus the tight and solemn Christian and Muslim.
  2. the courts have formulated an Essential Practices Test –  which demand evidence of particular faiths.   This fits is easily with the Abrahamic religions where revelation is the central category of knowledge. God has revealed himself and expressed his purpose and clear instructions. They have been recorded in a book. How can you argue with that?
  3. a political price – assaulting Christians or Muslims will invite retribution from international community. hence there is a practical political cost.  The counter needs to be mentioned. Taking down Hindu practices can also  have a political cost because in theory Pagans can also consolidate,  Governments can be voted out,  and the constitution changed. One wonders if is what we are expected to do?

This disadvantage can be trivially  weaponized by strategic players.  Can a “transformative document” view of the constitution  be used to “deconstruct” , “reform”,  or “transform” the heathens  and their the vibrant hindu practices into a easier to legally defend  monochrome  ?  These are not flights of fantasy, we already know strategic  PIL litigation is real due to the absence of standing requirements. Is it really believable that they could not find a single woman devotee of Sabarimala to bring this suit forward?  Particularly when apostasy and rebellion has zero cost for Hindus.

In her dissent Judge Indu Malhotra  rightfully concludes this PIL should never have been admitted.  Even in terms of examining religious practices,  this is an outside deconstruction rather than a court unwillingly dragged into a  schism between believers themselves.   An example of the latter would be the famously comical case of Vadakalai and Thenkalai  Tamizh Iyengar factions whose squabbles over anointing the Kanchipuram temple elephant reached the Privy Council !!  Even though that case had no business reaching the courts  , but at least it was a dispute created by the believers,hence can be analyzed as a civil dispute – i.e, say who has property rights.

Now lets unpack some of the reasoning in the judgment itself.

Religious versus secular aspect

First a little note about the honorable justices, I am leaving Judge Indu Malhotra alone because she has wisely dissented – recognizing the landmines that exist in the new territory the other four pioneers have cleared up.  The four male judges  are not from the catchment area of Sabarimala devotees and do not record any personal association with this or similar pilgrimages. The schooling background of the judges are also relevant because here they are not looking at the secular aspect but opening up the religious. What’s the difference ?

I illustrated this on twitter with an example : Imagine if  Hindus had #core1 (Edu Rights at par with minorities) and Sabarimala ran a chain of secular CBSE schools.  In that chain of schools, imagine if they did not allow girl students.  Then if a case came in front of the judges, you dont have to worry about the background of the judges because they are called upon to rule on a secular matter  – a general education exclusion.

Denial of Right to Practice Religion

Judges Misra and Kanwalikar base their opinion : that the Sabarimala rule is unconstitutional because if offends a womens right to practice religion under Art 25(1)

The exclusionary practice being followed at the Sabrimala temple by virtue of Rule 3(b) of the 1965 Rules violates the right of Hindu women to freely practise their religion and exhibit their devotion towards Lord Ayyappa. This denial denudes them of their right to worship. The right to practise religion under Article 25(1) is equally available to both men and women of all age groups professing the same religion.

J. Misra, J.Kanwalikar

There are quite obviously situations where  exclusion is valid  – for example I cannot barge into your house and demand to worship Shivan in your pooja room.  So quite obviously there are some overriding private exceptions to the unfettered right of worship.  A very real test is  “how substantially is the right to practice religion”  harmed by this exclusion.  The judgment completely skips that part because that is where the petitioners will lose badly.

The Hindu women right to practice of religion is only negligibly affected  due to the following reasons.

  1. Sabarimala is only one thread in the fabric of Hindu / Pagans.  Women who dont buy into the whole belief system can and DO thrive – they simply select another thread. The evidence of that is the PIL petitioners themselves who seem to be quite content and spirited.
  2. The Sabarimala thread is not sufficiently dominant  that there will be collateral damage to women due to the exclusion. They are not losing out on Sabarimala Trust medical college seats or otherwise suffer any real world disability, or economic or social boycott.
  3. The urge to worship “Ayyappa at Sabarimala” itself is a bogus construct and  Misra and Kanwalikar should not have papered over that.  There is no evidence that women devotees of that age group of Ayyappa want to worship exactly at Sabarimala in total defiance of the faith system.  As mentioned previously, such a scenario would have been a different case. That women group would have constituted an internal schismatic within the Sabarimala fold. Nothing of that sort here.

Biological exclusion and impurity

Judge RF Nariman says

Also, the argument that such women can worship at the other Ayyappa temples is no answer to the denial of their fundamental right to practice religion as they see it, which includes their right to worship at any temple of their choice. On this ground also, the right to practice religion, as claimed by the Thanthris and worshippers, must be balanced with and must yield to the fundamental right of women between the ages of 10 and 50, who are completely barred from entering the temple at Sabarimala, based on the biological ground of menstruation.

Again the conception of “worship” itself is being used here in a Abrahamic sense.   “Worship”  here  is not the same as Mass or Baptism or other sacraments in Christianity or Islam.  In our pagan Hindu system, we are not mindless people worshiping stones. We worship the “faith, the accumulated history, legacy, past, divinity,ancestors,heroes” that manifests itself through the stone. Over here , the faith is that this is  a Naistika Brahmachari we are dealing with.   Nariman shows little understanding of the disqualification  – it is not because of biological ground of menstruation but because of the unique nature of the deity.  Look at it in the reverse – are Hindu deities allowed to be even endowed with different ‘natures’ ?  In Tamizhnadu, there are deities that we believe are propitiated by walking on hot coals, sacrificing roosters, and rams,  catching a bull.  Other practices involve beliefs arising from taking a dip in Kumbhs and Pushkars in certain holy locations.  Should they just take a shower instead ?  Do we want the court to get entangled at this level and play referee?

This impurity angle can be indiscriminately used to drive stakes into pagan practices, particularly the elevated status of vegetarianism in most public temples. Is the Sabarimala rule of veggie an assault of right of meat eaters to worship Sabarimala at Ayyappa?

 

A form of untouchability – the Art 17 angle

(The Indian Constitution bans “untouchability in all forms” in Art 17)

Honorable Justice Chandrachud’s opinion should be immune from commentary.  His main yardsticks can be bracketed under the “constitutional morality and transformative project” .I feel they are so outlandish that is impossible for any practice to be protected from judicial takedown along any axis.   However , he does use one argument that needs comment. That the Sabarimala exclusion is a form of Untouchability – which is commonly understood to refer to a very specific caste practice.

This is from an article by Dr Tarun Khaitan from July who predicted to a dot in July !?

In the final analysis, what probably tips the balance in favour of the claimants seeking the right to entry is our unique constitutional treatment of Hinduism, especially in relation to temple entry in Article 25(2)(b), and the additional weight to their argument supplied by Article 17’s prohibition on Untouchability.

Source : http://abclive.in/analysis-of-essential-practices-test-in-sabrimala-entry-case/

 

First it is grotesque to compare a permanent inheritable social disprivilege affecting man,woman,child of particular castes versus a temporary, isolated, and totally unimpactful exclusion of women from a single shrine. This is also not a case of post-modern  “intersectionality” – where multiple oppression axis combine. Sabarimala is a uniform exclusion of women – brahmin women, nair women, nadar women, SC women.

I feel it is important to point out the bad faith in the Article 17 argument of Justice Chandrachud and his legion of “liberal fans”. He says

Article 17 is a reflection of the transformative ideal of the Constitution, which gives expression to the aspirations of socially disempowered individuals and communities, and provides a moral framework for radical social transformation.

First of all the constitutional mandate of “transformation” is alarming – we are going to have to insist on the specifics. Does this mean transform pagans into believers? Or believers into atheists? or everyone into fools? What is point-A and what is point-B.  How can a country function if such a secretive and incomplete contract is going to be the basis of our relationship with the law?

The bad faith argument is not recognizing the caste-neutrality –  a central aspect of the pilgrimage.

If Article 17 (Untouchability) is your main concern , then the Sabarimala custom must be given the maximum freedom possible.  Judge Chandrachud did not even give it a passing mention.  The pilgrimage  is a glorious coming together of castes  unlike any other denomination.  I recall my own childhood experiences in city buses where all pilgrims irrespective of background used to be called “Saami”. The Sabarimala movement also has spurred a large Guruswami , a special elder priest cadre that is caste neutral. The Gurusamis are the men who initiate others.  There are several instances of so-called  upper castes getting the initiation of the 41-day penance period from so called backward castes.  This should be a matter of great amazement and pride  that such a denomination has developed.    In our #core vision, such a group should be the vector for social change and not some distant rootless judges pontificating on things they cannot comprehend.

Now the response to this will be ; “allowing women does not change any of this”. But it does.  First, It is much easier for men to bond across caste boundaries than if you add women to the mix it gets complicated.   Second, it inserts judges into the bonds  devotees have created among themselves for no “government purpose” whatsoever. Article 17 arguments are hence founded on ignorance and must be rejected.

Denomination and Essential Practices Test

Therefore, the devotees of Lord Ayyappa are just Hindus and do not constitute a separate religious denomination. For a religious denomination, there must be new methodology provided for a religion. Mere observance of certain practices, even though from a long time, does not make it a distinct religion on that account.

Judge Misra quoting Supreme Court In Aurobindo Society – denying them denomination status holding them to be Hindus!

The Quakers in the colony of Virginia said  they would not be able to take Oath of allegiance to the newly independent colony and in addition they wont send their men to the monthly arms training for the militia. They said they are a separate christian denomination and their faith does not permit Oaths and to Bear Arms.  They were allowed. The  Amish of Wisconsin a separate Christian denomination which descended from the Swiss Anabaptists claimed they wont send their kids to the mandatory public schooling.  They were allowed in Wisconsin v Yoder. In all these cases, it is trivial to establish they are a separate denomination because they trace their origin to a founder – George Fox for the Quakers and Jakob for the Amish. These founders established a specific set of principles and rules of conduct that formed the basis of the schism from the mainline Catholics.  How on earth are the Sabarimala devotees going to match this level of documentation ? Or the Dahi Handi ? or the Shani Singapur ? or Chidambaram ?   Perhaps a few founded denominations like Lingayath , perhaps some Iyengars can prove they are a denomination but only to a limited extent.

This is the so called denomination test

(1) It must be a collection of individuals who have a system of beliefs or doctrines which
they regard as conducive to their spiritual well-being, that is, a common faith;
(2) common organisation, and
(3) designation by a distinctive name.”

As mentioned above, pagan denomination cannot be modeled as  a total schism like the Abrahamics.  A denomination in those cases are a result from a mainline splitting  into separate collections.  In Hindus it can be about adopting a unique practice at one time but in other times merging with others.  A Brahmin sabarimala devotee and a vannier devotee for the purpose of the pilgrimage are identical – they follow the same penance, take the same paths, look identical, carry the same irumudi,  faith in the same thing, sing the same devotional songs, chant the same marching tune, etc.  But in other times, they go back to other forms of worship as per their preferences. This does not mean the Sabarimala cannot be a denomination because the followers do not practice the same things 100% of the time.

The test can quite reversed be passed by a different judge – look

  1. collection of invididuals ?  Check. The devotees
  2. common organization ?  Check, the sabarimala kosthis all over town. they are distinctive and easy to spot. the guruswamis are elder priests who initiate others. No other sect has these gurusamis. Isnt this enough?
  3. name ? Check – see these names. swamy sharanam,  sabarimalai , or simply malai, or saamy.  why is this important. should the name be registered ?

There are finer legal points on which the Denominational Test fails.  We will put them out in the coming days.

Essential Practices

As I have analysed in another #core5 case – the egregiously overreaching Jallikattu Judgement. The Essential Practices of a Hindu cannot be ascertained, what can be checked is the essential element of a particular practice.  The goal of that would be to detect a mischief hiding under an essential shield and nothing more. However, all four of the judges in the Sabarimala case try to extract essence of Hindu  “exclusion of women is an essential practice of HInduism”

See this by Misra/Kanwalikar

it has to be determined whether the practice of exclusion of women of the age group of 10 to 50 years is equivalent to a doctrine of Hindu religion or a practice that could be regarded as an essential part of the Hindu religion and whether the nature of Hindu religion would be altered without the said exclusionary practice. The answer to these questions, in our considered opinion, is in the firm negative. In no scenario, it can be said

Misra p78 emp added

What is happening here is the following. The most honourable judges might know that they are on thin ice on the  denominational aspect and Sabarimala probably is a denomination. Hence they say “listen even if you are a denomination – your practice isn’t essential”.  That is in line with precedents in the the Shiroor Mutt and Devaru cases.

The problem here is that they are making an inexcusable leap – from examining whether the practice is essential to the Sabarimala tradition, they have widened it to examining if the practice is essential to Hindu.  The set up a strawman in the form of  a hypothetical generalized “practice of exclusion of Hindu women” . The wide question of whether this exclusion is essential to Hindu  is not even part of the case.  This is where judicial indiscipline will hurt the pagans because our fate turns on such fine distinctions and switches.  Is Sabarimala itself an essential part of Hinduism? A judge tomorrow can ask ,after all  80% havent heard of it – they are pious Hindus. This is unlike the abrahamics, if you havent heard of Jesus or Mathew or Mohamed – you cant be a member.

To conclude,  this judgment represents a singling out of a thriving religious practice grounded in faith. No women devotees complained. An activist court should have taken care not to be seen as a hostile court. Particularly when it is striking down on a pilgrimiage that transcends caste and brings all Hindu together.  It must be immediately reviewed , an ordinance passed , or a constitutional amendment bill introduced.

In our #core vision no 5, we have long recommended a constitution amendment which insulates these varied practices from PIL process. We now foresee an endless stream of attacks exploiting this new found vulnerability, These attacks can be led by both stupid and strategic forces – may well result in death of our colorful and inclusive religion.

What can be done?

The ideal situation is a responsive legislature at centre. One which sees where this activism is headed and responds to these things before they get out of hand.  But even without legislative support, we can spread the message deep to the people and build a vanguard which can fight the future battles.

In the short term, this judgment will have no impact on believers faith other than to inconvenience them.  An already jam-packed temple will now have to make arrangements for separate women’s queues , the feminist irony!  and what not.  This will be used by both hostile men and women who are not believers but will be there just to show their defiance and hostility.

What can be done by the board to protect the interest of their believers : declare a special day where women are allowed, then do whatever ritual is needed to protect the deity in the background.  This makes sense for administrative convenience. Can the court get entangled if a repentance Mantra invocation is chanted ?

Another option, is to file court cases against exclusion in other religions. This is unfortunately required because the Idea of India jurisprudence does not focus on uniform application and principles. They take things apart on an ad-hoc basis. By challenging the exclusion of women from Christian and Moslem clergy. Remember  that the Indian state actually funds those sites of exclusion and have a real world secular impact. Unfortunately, such  belligerence maybe the only way we can hope to hammer out  a principle.  Contrast with core societies like USA , where Uniform application is the basis of these laws. In the Smith Standard in the USA, the test is that any rule that is enforced impacting Free Exercise of Religion must be uniform. We fumble the basics.

The ultimate and foundation protection is however – what we call as #core1. The very real legal disadvantages Hindus face in the Education Sector.  A ticking time bomb.  Without #core1 , whatever gains we make in Sabarimala will be ephemeral. Your date of execution has already been set.

/jh

 

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5 Responses

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  1. realitycheck said, on October 3, 2018 at 5:18 pm

    Unfortunately, I am unable to shorten this more than this.

    It is almost like writing a judgment of a judgment. If our Indian jurisprudence had evolved well developed tests – we can be succinct, But today our courts particularly in #core vs #IOI cases – rely on a barrage of low tech arguments & propositions & tekiyaahs — which have to be shot down one by one.

    Will try to write a shorter summary later

  2. Abhishek Desikan said, on October 3, 2018 at 7:44 pm

    Excellent summary. Thank you.

  3. realitycheck said, on October 4, 2018 at 4:01 am

    How the Idea of India system will view the Sabarimala protests and how to respond.

    As we speak, there are literally lakhs of women on the streets in Kerala, actual devotees of the shrine protesting the Sabarimala judgment. These are spontaneous protests unlike the political rallies. Watch how mainstream media just brushes this aside.

    Is there a method to this?

    I recall watching a lecture from an eminent Idea of India Jurist, he made the following startling remark on how they view such protests. They just view it as a mass venting off steam in response to a ‘transformative’ judgment and their response would be to just let the pressure go – the people will eventually get used to the new normal.

    The media and the legal commentary will just hold back, because why add fuel to the fire? Or why comment on a victory, when there can be no justification to these ‘transformative judgments’. You can observe that even now. Where are the opinion pieces from Parasaran, Venugopal, Salve, Nariman, Sundarams, Sibals, .. Contrast with the explosion of commentary in the USA on court cases of far less importrance like the RFRA , Cakeshop, etc.

    That is the difference between a Rule of Law society and a secretive Transformation Work in Progress #IOI society.

    To illustrate the ‘transformative document’ : When a young bull is castrated , he jumps around in pain for sometime, gets a bit aggressive, the owners just leave him alone. They know he eventually settles down. As time flies by, he gets used to being a bullock. He even forgets that he was once a virile bull with potential. He even forgets that his current bullockness is not the result of natural process but due to one quick outside event on one particularly bad day in his life or that transformation event only took 30 seconds.

    The technological change.

    The Idea of India people are making the following mistake. Humankind has always jumped from one regime to another on Technological Change. Social media and democratization is that change. They have not factored that in.

    You can only adjust to the new normal if you forget the outside transformation events. For my part, I have not forgotten the 93rd Amendment and all #core items, and I wont let people forget. Similarly, I hope others comment profusely and keep persisting on social media and share it deeply.

    There will be an impact. Even now, there are self respecting people inside top thinktanks who secretly support the Core agenda, but due to economic reasons are not coming out.

    So keep at it. Even if the legislature is a wet blanket washout, we can still effect deeper change in the people.

  4. Venkatesh Ranganathan said, on October 8, 2018 at 3:49 am

    The larger issue here is that at the higher levels (High Courts and Supreme Court) the Indian judiciary has been infiltrated by extremist Left-Liberal radicals who come from very elite backgrounds. There should be rules and regulations for appointment of judges that ensures that such individuals , with law degrees from abroad, whose close relatives held higher judiciary positions, and who do not have substantial experience of practising in the District courts and other lower courts, are not appointed to higher judiciary positions.

    Look at this Bench that delivered the verdict on the mischievous Sabarimala entry petition. The Chief Justice, Dipak Misra, is the nephew of a former Chief Justice of SC, i.e Ranganath Misra ; Justice D Y Chandrachud is the son of a former Judge of the Supreme Court ; Justice Rohington Nariman is the son of one of the senior most lawyers still practicing in the Supreme Court !! How were such persons allowed to become Supreme Court judges without any allegations of dynastic clout ? Why was this Bench constituted without any member from the southern states where the Sabarimala piligrimage is well known (culturally and spiritually) ? When there are other women judges in the Supreme Court (including one judge from Tamil Nadu), why were they not included in the Constitution Bench? Does this not suggest that the former Chief Justice (Dipak Misra) had predetermined what the majority verdict should be, and picked judges for this Bench in such a manner that this predetermined verdict would be guaranteed ?

    What about the Constitutional provisions on preservation of culture and cultural heritage – Article 29 and Article 51 A? How can these cultural provisions be safeguarded in legal judgements when no member of the Bench has any cultural links to the temple or region whose practices are being scrutinized ?

  5. rc2 said, on October 19, 2018 at 3:29 am

    I saw the following comment on my twitter TL

    >> The RSS goofed up big way in welcoming the SC judgement on Sabarimala without taking into consideration the views of the devotees of Lord Ayappa!

    This points to a much deeper flaw in the Hindoo ecosystem that makes the above tweet self contradictory.

    See, RSS has indeed changed its position based on the intensity of ground protests and the articles seen in the New Media. Ergo, they have now taken into ‘consideration the views of the devotees’ . This is how public opinion is measured.

    What this means is RSS will respond to mobilizations , but this might be AFTER the harms have been done. That is a very poor strategy for a large movement that claims to be an ideological fountainhead – being yanked around from prev held position based on mass exhibition.

    This leads to two issues :

    1. If the protests were less vehement and the blowback articles on New Media were not around – then it follows that RSS has no independent mechanism of “taking into consideration the views of devotees”. They just go with the Idea of India consensus view as their default position.

    2 . Now, the more dangerous part. Being guided by public opinion means RSS will be silent On Vanguard issues which dont bring out people on street. The #core1 items fall in this category. Vanguards (those ones at frontlines) deal with issues that pit a TINY number of institutions against each other. RSS will never be able to gauge the “views of the people” in these issues.

    So what is the solution ? Develop a stand-alone concrete ideology first. Use that as your default position, use what-ifs and war-gaming to fortify those positions. This way you dont have to wait for people to cry out in pain before changing your position and responding.

    Unless we do this – vanguard issues will be forever out of reach.


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