Aswathi Asok
The erection of a woman fort on the new year day in Kerala, and the entry of two women of 40s in Sabarimala temple on the very next day, with the backing of the strong determination of the left Government of the state to honour the Apex Court of country, have scripted a history in the struggles for gender equality and gender justice. These were the culmination of a long spread campaigns surrounding gender equality and renaissance led by the Kerala Government and the organised left, following a judicial verdict by the Supreme Court on September 28, 2018. Through the verdict the Supreme Court reversed a Kerala High Court order in 1991, banning the entry of women in menstrual age in Sabarimala temple. Following this, the state witnessed a huge outcry over the verdict by the right wing and conservative forces and an unparalleled vandalism unleashed by the Sangh Parivar with the support of the Congress in Kerala. There were conscious efforts from these people to dishonour a decision which the Supreme Court has arrived after wider discussions and debates. There were widespread attempts to spread venom against the Left Government in Kerala, for fulfilling the executive’s duty to honour the order from the Apex Court. This entire sequence of events has brought a long-standing debate to the forefront again: “what should be the involvement judiciary in the matters of faith”. This article, therefore, tries to address this question in an objective way and to enquire into the process through the Supreme Court might have arrived at this decision.
“How should the judiciary in a secular democratic state deals with the matters relating to faith and belief” is a widely debated topic around the world. The writer of Hebrews gives us the biblical definition of faith by stating in Hebrews 11:1, “Now faith is the substance of things hoped for, the evidence of things not seen”, which means faith is a trust or confidence in something without the backing of any evidence and proof. Although there is no uniform approach of proof and evidence shared by all legal systems of the world today, judicial system itself is built upon the interpretation of law on the basis of available proof and evidence. Here itself, the primary contradiction between the judiciary and faith emerges
Since the major source of faiths in the existing society is religion, it is essential to explore the relation between religion and legal system. In the opinion of Lambek, religion is, in part, constituted by means of law, but simultaneously as something that is constituted to stand at arm’s length from the law. However, there is no straight-forward relationship can be drawn between religion and law—as in a modern-secular-democratic state both are separated by theory, but intertwined in practice.
In ancient and medieval societies, this contradiction was not at all an issue as the power, and religion were indistinguishable, so the faith and the law. In the ancient world, kings were considered to acquire the right of rule from the God. With this concept of Divine Right of Kings, the ruler was not answerable to the people, but only to the God. The laws of the times were developed according to the vested interests of monarch to ensure the complete subjugation of the ruled before the ruler and the “Will of God” concept was used to extract maximum allegiance from the population and thus to suppress any forms of resistance. Popular sanctions for such laws were acquired by the authority by ascribing divinity to those laws. Coming to the medieval period, the institutionalised religions themselves became powerful socially, economically and politically, and started to decide the rules of the land. The lives of Medieval Europe were regulated by the Catholic Church and laws of the land were developed according to their morality. Any forms of dissent were considered as blasphemy and punishable according to the law. Galileo was trialled and punished by the Roman Catholic Inquisition for his support of heliocentrism, which was a direct contradiction of the popular faith of geocentrism, propagated by the Bible and the Catholic Church. So it is very much evident from the history itself that, the rules and the laws of the society, before the birth of democracy were determined by the existing social faith and customs formulated by the powerful and dominant sections, backed by the religious systems to secure maximum compliance from the public.
The scenario was not very much different in the case of India. The law in India evolved from customary practices and religious texts to a modern well codified acts and laws grounded on a constitution. The sources of law during the Vedic period were Sruti, Smriti and acharas (customs). In each period following Vedic era, the laws and rules were transformed to fit into the shape of the then existing social morality and culture. The difficulty in separating the public realm and religion in India has been pointed out by Justice P Gajendragadkar in Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan case by observing that in Hindu religion, under the provisions of ancient Smritis, all human actions from birth to death and most of the individual actions from day to day are regarded as religious in character. It means that in India, religion do not confine themselves to spiritual and other worldly matters, rather cover within their fold social behaviour as a whole.
In contrast to the earlier political systems, which derived authority from the divinity and God, the democracy derives authority from the people. The literal meaning of the word “democracy” itself is the “rule by the people”. The most famous definition of democracy put forth by Abraham Lincoln places “people” in the supreme position by defining democracy as a political system “of the people, by the people and for the people”. The very next question comes up from this definition would be who constitute the term “people”. Although in a narrower sense, democracy can be defined as a system which represents the interests of majority of the people, the questions what and who constitutes the majority remain. With wider debates and discussions, a much broader concept of democracy has been evolved over time, which considers democracy as a system in which even the least privileged individual has a voice. So how the judiciary synthesis these two contradictory concepts, faith and democracy, one reflects the interests of the dominant sections and other emphasises on the representation of diverse views with the least privileged sections also have roles to play, is a complex question faced by a judiciary under a democratic system.
Where should/can the judiciary stand in this fight between faith and democracy? On a preliminary note, it can be ascertained that. Judiciary which is the third pillar of the democracy should stand with the democracy itself. But what should be the position of the judiciary, when the majoritarian faith tries to rule the existing democratic system by even undermining the natural justice of the people. In such a situation, the nature of the political system itself will be altered into fascism or dictatorship. Thus, it is the duty of the judiciary to take stand as to protect the fundamental ethos of democracy. The overall concept of modern democracy has three fundamental ethos: democracy, constitutionalism and liberalism. The constitutionalism implies that the People do not give power to the government to oppress, but rather to protect their fundamental rights, interests, and welfare. Therefore, the power of Government is limited by fundamental laws called “constitutions.” Thus, the constitution becomes the pillar of a modern democracy, and a judiciary in a democratic system is mandated to uphold the values and rights ensured by the constitution. The concept of liberalism entails the ideas of freedom, equality, and dignity of all the individuals living under the system.
However, the enjoyment of freedom by an individual should not restrict the freedom of someone else which is against the basic principle of equality. Therefore, the freedom ensured to a person is a limited one subject to the public health and morality. Therefore, when the faith of an individual curtails the freedom, fundamental rights, and dignity of another individual, the judiciary shall intervene to protect the rights of the individual. It is the constitution that protects one’s freedom of faith. Therefore, protecting the constitution is the foundation for protecting one’s faith. When the question of faith comes into direct conflict with the equal rights and natural justice of human beings, assured by the constitution, a judiciary which assumes authority from a constitution adopted by the citizens of a country can stand only with the values enshrined in the constitution. Thus, it becomes the duty of the judiciary to protect and preserve the constitution amidst all odds.
Going through the codes and rules of religion, as noted above, it becomes very much evident that the religion, faith, customs and social practices of a time reflect the interests of the existing dominant sections and might involve elements meant to subjugate the weaker for the benefits of the stronger. For example, in India, women and Dalits are historically marginalised and oppressed. To acquire sanction for the oppression, dominant sections (upper caste men) quote Vedic laws which are anti-women and anti-dalit in nature. For instance, the Manusmriti says that “na sthree swathanthryamarhathi” (no woman deserves freedom). Katyayana, successor of Manu lays down that if a Shudra over heard the Veda or ventured to utter a word of the Veda, the king shall cut his tongue in twain and pour hot molten lead in his ear. These were the rules of the land at that time which acquired sanction from existing religious practices, faiths and customs. But a democratic country following a written constitution which was the product of wider debates and discussions cannot endorse such discriminatory practices as the basic premise of democracy itself is inclusiveness and equality.
Therefore, when the judiciary encounters with a popular faith which is discriminatory in nature, the court of law is mandated to promulgate a verdict in consonance with the written constitution. In various judgements, the Supreme Court upheld the pre-eminence of constitution over religious faiths and religious laws. The Durgah Committee, Ajmer vs Syed Hussain Ali case the court clearly states that the religious practices might have sprung from merely superstitious beliefs. In the Vishwa Lochan Madan v. Union of India case the Supreme Court held that no institution which derives its strength from religion or is religiously sanctioned or sanctioned by religious or personal law, may act or issue directions or opinions (such as fatwa) in violation of basic human rights. Strongly, the court declares that faith cannot be used as a dehumanising force.
“The only thing that never changes is change” is an accepted fact that the society is always changing. Since law is formulated for the smooth functioning of the society, therefore law has to keep pace with the changing paths of the society by reforming and modifying itself. However, this changing process is not an easy one, but involves the fights between the powerful and powerless, rulers and ruled, religion and individuals. At this point, the question which encounters us is whether the social change is effected by law or the law is influenced by the social change? There is no clear-cut answer to the question. The relationship between social change and law is a two-way process. But one thing is certain that the society has to be moved forward according to the development of our knowledge system, science and technology.
History proves that religion, faith, laws, rules, even democracy in the current form have been evolved through these changing processes and slowly assimilated to the progress of knowledge acquired by the humans in each and every moment. As pointed out by Justice B.K. Mukherjee in his Tagore Law Lectures on Hindu Law of Religious Charitable Trust as quoted in A.S. Narayana Deekhshitutlu vs. State of Andhra Pradesh,
“The popular Hindu religion of modern times in not the same as a religion of the Vedas though the latter are still held to be the ultimate source and authority of all those held sacred by Hindus. In course of its development, the Hindu religion did undergo several changes, which reacted on the social system and introduced corresponding changes in the social and religious institution”
This observation is valid not only for Hindu religion, but also for every religions, customs and practices. This process might involve the rejection and reformation of the existing popular faith as evident from India itself. The transformation of society into the current situation involved the legal prohibition of certain religious and social practices which were against the natural justice and democratic rights of individuals. The banning of customary practices of Sati, untouchability, child marriage, etc. witnessed the intervention of law and judiciary to keep the society in the path of progress. Although, it was not easy to make people behave against the practices they followed hitherto, these interventions are considered as the milestones in the social reformation history of our country. The Shah Bano case underlies the reformatory role of court in which the Hon. Supreme Court states that the court has to assume the role of the reformer because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable.
The preamble of Indian constitution begins with the following lines,
“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;”
In the preamble itself we can observe the above narrated conflicting ideas: faith and social justice. Although the word religion does not occur in the Preamble of the constitution , the ideas of “Freedom of belief, faith and worship” as guaranteed by the preamble of the constitution are included in the broader concept of freedom of religion, as in India, religion is the major source and propagator of belief and faith. As Swami Vivekananda rightly pointed out, “Religion is based upon faith and belief”.
Further, Article 13 of the constitution reads that:
- All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
- The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
- In this article, unless the context otherwise requires,—
(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
Thus, the provision (3)(a) reads along with provisions (1) and (2) of article 13 undoubtedly asserts the predominance of fundamental rights over the customs or usages. In our country, customs and usages are majorly evolved from faiths which have deep routed link with religion as explained above.
Further, the “Right to freedom of religion” is included in the article 25 of our constitution. However, the sub-clause (1) of Article 25 starts with the restriction applicable to this freedom by stating that “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, practise and propagate religion. It should be noted that, this article guarantees equal rights to all citizens to practice and propagate religion, without affecting the public order, morality and health. This provision clearly implies that, when the religious faith of one individual undermines the right of equality of another individual to practice their religion, the court can intervene. The Article 25(2)(b) further says that, “nothing in this article shall affect the operation of any existing law or prevent the State from making any law providing for social welfare and reform”. Thus it becomes evident that the constitution itself recognises the power of law to carry forward reform process according to the social changes. An in-depth reading of this article thus reveals that the “Right to Freedom of Religion”, and thus the “Freedom of Faith” of an individual is not an absolute one, but comes with reasonable restriction. In the case of A. S. Narayana Deekhshitutlu vs. State of Andhra Pradesh, the apex court realises this practical difficulty in demarcating the matters of religion or religious belief practices from others. The court emphasises that every mundane or human activity cannot be protected by the Constitution under the guise of religion. Therefore, the Court, while interpreting Articles 25 and 26 should strike a careful balance between the freedom of the individual or the group in regard to religion, matters of religion, religious belief, faith, worship, religious practice or custom which are essential and integral part and those which are not essential and integral and the need for the State to regulate or control in the interest of the community.
The diversities of cultures, faiths and religion are the beauty of a democratic system. But at the same time state and judicial interventions in religious affairs and faiths are necessary for modernising the traditional society and bringing in social reform. This leaves a huge gap between theory and practice.
To bridge this gap the judiciary evolved the essentiality doctrine of religious practices, to decide on the religious matters in which the State and judiciary can intervene. For the purpose, the 7 judge bench of Supreme Court in Sri Lakshmindra Theertha Swamiar of Sri Shirur Mutt Vs. the Commissioner, Hindu Religious Endowments, Madras case of 1954, introduced the doctrine of essentiality of religious practices to be the basis of protection of the freedom of conscience and free profession, practice and propagation of religion to manage religious affairs. As per this doctrine, only the essential parts of religion should be protected under articles 25 and 26 of the constitution. Since the faith is grounded in religion, when conflicts arise between the faith and the constitutional values, the fundamental challenge faced by the judiciary is to differentiate between the essential and non-essential factors of religion. In many cases such as Ismail Faruqui vs Union of India, State of West Bengal vs Ashutosh Lahiri, The Durgah Committee, Ajmer vs Syed Hussain Ali including the recent Sabarimala verdict, the Court relied upon the essentiality doctrine to resolve the conflicts. However, in Sardar Syedna Taher Saifuddin Saheb V. State of Bombay case the court opined no demarcation can be classified as to which are essentially and purely of a religious character and those which are not essentially such. The Court held that it must vary in each individual case according to the tenets of the religious denomination concerned. Therefore, it was purely left with the court to decide upon what constitutes the essential religious practices. Thus, in a broad sense the judiciary becomes the custodian of faith.
In the latest two landmark judgements, the Supreme Court assumed this authority to place gender justice over the claimed customs and usages, when it encountered with the questions of popular faiths and constitutional morality; Sabarimala issue and the criminalisation of same-sex relationship under article 377. While the Sabarimala dispute is directly linked to religious faiths, the second case is not directly connected with the religion, but linked to the popular perceptions framed by the religious morality. In both cases, the Apex Court underlines the prevalence of constitutional morality over religious faiths and popular perceptions and asserts the role of judiciary in preventing discriminatory practices in the name of faith, religion and morality. Therefore, in a democratic system, following a written constitution and secular values, faith of an individual is limited by the constitutional values, and the Judiciary should act as the protector of the constitutional principles.