Memo To SC: No, Sabarimala Can’t Be Reason To Hear Plea On Women’s Right To Pray At Mosques

Every passing month, the Supreme Court manages to bring in new – often convoluted – forms of reasoning that can only make case laws and precedent-setting judgements more complicated and confusing. Two examples from this week – the ban on free speech by the Election Commission at the court’s prompting, and the court’s decision to hear Muslim petitioners seeking for women the right to pray at mosques – serve as good examples in this regard.

Two days ago (on 15 April), the Supreme Court drove the Election Commission to needlessly get tougher on campaign rhetoric by various politicians – rhetoric that can be called borderline “hate speeches”. A bench hearing a petition on “hate speeches” pounced on the commission, forcing it to ban Mayawati, Yogi Adityanath, Azam Khan and Maneka Gandhi from campaigning for periods ranging from two to three days.

This has sparked precisely the kind of victimhood statements and covert communalism that the ban was supposed to neutralise. Mayawati’s nephew asked voters to give a befitting reply to the commission, while Azam Khan’s son claimed his father was banned because he was a Muslim. He said the commission had banned Mayawati and Khan from campaigning because the voices of Muslims and Dalits were being sought to be suppressed. This is nothing but covert communalism, this tie targeted at the Election Commission itself. But will a ban on Mayawati’s nephew or Khan’s son achieve better results?

Yesterday (16 April), the Supreme Court could not entertain a petition filed by Mayawati seeking a lifting of the ban on her campaigning, having been the prime mover in the ban itself. The Supreme Court needs to ask itself a basic question: is it in favour of free speech, despite its occasional misuse, or in favour of jumping in whenever it thinks fit?

Is this the same Supreme Court that refused to ban anti-Hindu propagandist Kancha Ilaiah’s book that used overtly casteist language. “Any request for banning a book… has to be strictly scrutinised because every author or writer has a fundamental right to speak out ideas freely and express thoughts adequately. Curtailment of an individual writer/author’s right to freedom of speech and expression should never be lightly viewed.”

Now, is the right to free speech a privilege reserved only for writers and authors or also for film-makers and politicians seeking votes from the electorate? And is free speech a right only outside election-time? But the Election Commission has been banning films (the Modi biopic), and politicians, the latter at the instigation of the Supreme Court itself. The Supreme Court needs to clear the air on where it stands on the question of free speech. There cannot be an artificial differentiation between one person’s right to free speech and another’s. Or between free speech as exercised through a book or movie, or on the campaign trail.

Next, let’s discuss the court’s decision to hear a plea from a Muslim woman and her husband to allow women to pray at mosques. One need not have any quarrel with its decision to hear this plea – or any plea, for that matter – but the problem is with the reasoning and line of thought.

The bench, headed by Justice S A Bobde, who will become the Chief Justice this November when the present incumbent retires, made it clear that it was hearing the petition only because of the Sabarimala verdict last September, which allowed women of all ages to enter the shrine dedicated to Swami Ayyappa.

The parallel is wrong for three reasons.

One, Sabarimala is the case of one unique temple which bars the entry of women in the 10-50 age group since the deity is worshipped in a specific form – a Naishtika Brahmachari, an eternal celibate. Ayyappa temples elsewhere, include some 140 of them in Kerala, do not have this restriction at all. The exclusion is specific to one temple, and for a specific reason that is not about generic and general discrimination. The bar on women praying at mosques, on the other hand, is universal, and totally exclusionary in nature – on a par with the exclusion of Dalits from temples some decades ago.

Two, the Sabarimala verdict is itself being reviewed by a five-judge bench, following several petitions filed in this regard. So, if Sabarimala is the reason for hearing the Muslim couple’s petition, then it ought to be heard at a time after the review petitions are disposed of, and this could include the possibility of a reversal of the previous verdict.

Three, the Sabarimala verdict explicitly denied the devotees of Swami Ayyappa the right to their own religious practices, a right guaranteed to every denomination under Article 26. The Sabarimala temple has a right to run its own affairs, and deserving of the same rights given to people from other religious denominations. But the Supreme Court, in a 4-1 verdict, wrongly decided that Article 26 does not apply.

Now, if the Muslim petition on the right to pray at mosques were to be allowed, it can only come if Article 26 is read down to deny its applicability to Muslims and their denominations – when so far there has been no doubt that they are covered by it. Muslims in India can correctly claim that women have been barred from mosques and this practice is essential to their free practice of religion under Article 26.

Whichever way the new bench decides, it is going to tie itself up in knots by linking Sabarimala to the Muslim couple’s plea. The two are not the same.

More interesting was the Bobde bench’s other questions in the Muslim couple’s petition. They were asked: “Can you demand another human being treat you equally? Does it apply to individuals? Can you invoke equality from another citizen? We understand the state can't....The state shall not deny right to equality. Church or mosque is a state? If someone doesn't want your entry into their house, can you ask the police?”

Now, these are entirely new approaches to the idea of religious practices, access to public spaces and public-private spaces. Thus far, courts have held that you can’t bar people from entering public places like temples on grounds of caste, but not on grounds that they are equivalent to state. In the case of thousands of Hindu temples, though, since the southern states directly run over 100,000 temples, one can well equate the two, including Sabarimala. If this bench equates state and temple (or mosque and church) as one, it has huge, huge implications. In any case, Article 26 essentially gives some places of worship the character of public-private spaces, where some exclusionary rules can apply based on religious practices.

The Supreme Court needs to give clear and final answers on several questions, including the question of separation of state from temple control. Till this final question is resolved by a clear separation, the remaining protections given by the Constitution to religion and religious practices are meaningless.

The court has tied itself in knots on several questions. It is time it cut these knots so that we can make sense of them.