Judicial Activism Curtailing Freedom Of Dharma

We are facing a rather uncomfortable dilemma as a society and community today . Close observation of happenings around us will reveal that there is a steep decline in social commitment, social responsibility, nationalism and patriotism. A democratic nation like ours cannot function efficiently without any of these, and they are pivotal in maintaining the integrity and éclat of a democratic establishment. Divisive tactics of politics, politicians and their followers are posing a serious threat to the integrity of democracy and nation at large. The beauty of democracy lies in the fact that power rests with the people and that they work together to make changes that are vital to society and nation. When they lose that power, the concept of democracy as a whole is overthrown.

We are at a juncture like that now. An objective observer has every reason to worry that the power units of the nation are exhibiting bias in discharging their duties.

In a democracy, the judiciary is at par with the legislature by assuming the responsibility to monitor, review and correct the decisions and policies of the legislature. As Indians, we hold the utmost respect for the judiciary in our heart. It is thus, the duty of the judiciary to understand and maintain such position in pristine order, now, and in the future.

The current situation warrants a constructive overview of the judiciary in light of the recent events. Judiciary should realise its role and importance and the contributions it can make for the upliftment of humanity as a whole. India is the largest democracy of the world, and thus our apex court holds global importance and relevance. In this age of globalisation, the boundaries between world nations are getting diluted, and policies and verdicts of every judicial setting would influence every corner of the world, some directly and some indirectly. One cannot help but wonder if the judiciary fully understands this right now.

The recent verdicts of the Supreme court regarding subjects like entry of women of all ages into Sabarimala, adultery (497), homosexuality (377) and Aadhaar would make one concerned about the direction in which they are moving. In the case of the Sabarimala verdict, the only female judge on the constitutional judge dissented with the male panel. It was heartwarming to see Justice Indu Malhotra speaking her mind about how the judiciary shouldn't interfere in religious freedom. She also pointed out that the question of equality raised by Young Lawyer's Association applies to every religion and that the verdict will have overarching effects.

Some unpleasant questions need to be raised at this point. The foremost one being, how fair is it that the judiciary with a secular approach intervenes in the matters of faith. In a country like ours which boasts of diversity in faith, culture, religious practices and innumerable traditions, this forceful and frequent unsolicited intervention will only create deep-rooted religious bigotry. In the constitutionally established secular atmosphere of India, every other religion has the right to control, uphold and run their religious institutions as they please without any government body interference. Unfortunately, Hindus aren’t extended the same courtesy. The government asserts their control over temples, and the judiciary even goes out to the extent of declaring our temples public places. In case of Sabarimala, the Tantric guidelines of the temple, the pivotal right of tantri in matters of the temple and vigraha, the Acharya Sabha, and the standpoint of the devotees have been completely sidelined or even ignored. This gives a worrying message of kritarchy.

Ours is a society where Muslim women aren't allowed to enter mosques to perform namaz. These practices are conveniently ignored, and the burden of constitutional equality is thrust upon Hindus and Hindus alone. How can this go unexamined? Some of the restrictions related to death, birth and menstruation are a part of the Kerala tantric temple culture, and this has been in place for centuries. How is a secular judiciary the right entity to change or dictate such practices? Christian women don't take part in Eucharist services during menstruation. Muslim women have religious interdict on fasting and namaz during the same. All of these are matters of faith. It is disheartening and disappointing if court interferes in such religious freedom.

The Hindu temple rituals and traditions are diverse. Such diversity stems from the nature of the vigraha, the lores and legends and aithihya related to the vigraha and the temple, the tantra sankalpa or the concept of consecration and the satyavacha or the rules laid down by the Tantri who performs the consecration. There are practices which are satvik, tamasik and rajasik related to the temple. There are temples wherein entry of sanyasis, kshatriyas and brahmin women are prohibited. Men, in general, are prohibited in performing some rituals. This diversity is the primordial and importunate aspect of dharma.

Swami Ayyappa of Sabarimala is consecrated and sanctified in the form of a naishtika brahmachari, and the age restriction for women between 10-50 is a part of that naishtika brahmachari prathishta sankalpa. It is a tradition that has been revered and followed by generations for centuries. The Kerala High Court was tolerant towards such diversity in faith, and it upheld this practice. Any interference in such religious practices warrants proper understanding of the reasons in place and should take into account the opinion of all the parties concerned. The verdict from the Supreme Court, however, has violated all such exigent factors. The recent verdict which allows women of all ages to enter Sabarimala will pose many predicaments and convulsions which are religious, logistical and environmental.

The Supreme Court, in its unilateral intent of discharging constitutional gender equality, seems to have overlooked many such pressing and relevant factors and consequences while passing such an important verdict.

Equally shocking is the apex court's observation that the Hindu temple is a public place. A Hindu temple is not a public place, but the house of the vigraha which has to be maintained and respected based on the tantric guidelines. Government exerting its power on temples through unfair means doesn't make it a public place. Its a point worth pondering over, if the court will make similar observations regarding places of worship belonging to other religions. The state conveniently states that it is shelling out financial aid to the temples to justify this encroachment. Why is the secular government granting such ‘financial support’ to temples and not to churches and mosques? Will they publish audited reports on the wealth that is flowing from the temples toward the government treasury? Sabarimala by itself contributes hundreds of crores to the state-run Dewaswom Board every year. The verdict thus seems unfortunate and unfair from every angle of examination.

The day before the Sabarimala verdict, on 27 September, the court passed another landmark verdict regarding section 497, the ‘adultery law’ by striking down the entire section. This decriminalises adultery, but the court maintains that divorce could be granted on grounds of adultery. There is no doubt that the said section of the IPC had its faults, but instead of repairing such faults, the court went ahead to strike down an entire section, thus giving constitutional validation to infidelity without concerning themselves with the consequences of the same. A verdict like this challenges the family system and the sanctity of the institution of marriage itself. Extramarital relationships which were frowned upon and secretive are now legal. Impending consequences of such a verdict wouldn’t be pleasant in a morally confused society like ours. The number of domestic disturbances and divorces will go up. The piety of our family system which is revered globally, irrespective of religion, would be affected. We seem to be making a desperate attempt to ape foreign and failed concepts of family and society.

Another decision in the recent past has been about Aadhaar. The introduction of Aadhaar as an identity-verification document by the central government was done to address growing concerns of terrorism, fake identities, unchecked immigration and national security. The idea was to verify the identity of citizens availing services in sectors tethered to national security like banking and telecom. The Supreme Court however with complete disregard to this purpose observed that such identifications should not be made mandatory. This nonchalance in matters of national security in the name of privacy was upheld in a country where a sizeable chunk of the population reside abroad and hold various identity proofs in their country of residence as expatriates.

Another landmark ruling that has been made is concerning section 377, pertaining to unnatural sex. While dharma has always been open-minded and tolerant towards homosexuality, and that social reforms in such areas are need of the hour, the decision has unfathomable consequences with respect to our youth, teenagers and family system. In light of the instances examined above it is a valid question to ask, whether or not the court has examined the long-term effects of such a verdict and its effect on a conservative society like ours.

There has been a series of such verdicts in a very short span of time from the respected Supreme Court. One cannot decide if it's coincidental or not as it was right at the point of CJI Deepak Mishra's retirement. It is also important to remember that a few months ago, four senior judges of the supreme court had raised their voice and displeasure regarding the policies of CJI, regarding referral of cases to the benches of the court. The centre, however, refused to interfere in the chaos while observing that the judiciary was able enough to sort the differences on their own and move forward. The Aadhaar ruling of the court is against the centre and thus clears the air about their common interest. It is interesting to note that, Deepak Mishra, who had been linked to controversies while serving as the CJI is not free of them after stepping down from the office either.

Judges are human too. The country has seen accusations of corruption against a former chief justice of India. Recently, a judge was in exile, soon after passing judgements against his co-judges. While these are rare occurrences, they shouldn’t be repeated. Judiciary should be mindful of the respect it commands and the pedestal at which it is held in the minds and hearts of the general population. Hence, the judiciary should be a constructive force in society and not a source of unrest and convulsions. While the constitution remains supreme in all judicial rulings, the interpretations should be made keeping in mind every common citizen of the country. Judges should look at their position, and responsibilities thrust upon them as a means of serving the country by taking it forward positively and not by forceful interventions on pedantic matters ignoring clamant and exigent issues.

Whether or not the court heard the real stakeholders in the Sabarimala case before forcing their unilateral view is a topic for debate. To err is human and even judiciary isn’t above that. To make corrections is the highest form of benevolence. May wisdom prevail!