Sabarimala verdict is judicial overreach. If legislating from bench is bad enough, pontificating from it is worse.

The more I think of it, the stronger are my fears that the Supreme Court’s verdict in the Sabarimala case will hurt the very Indian republic that allowed a deeply iniquitous tradition to be overturned, allowing women equal rights to worship at the Sabarimala temple in Kerala. I am not a conservative defender of religious traditions. Far from it, I say this as a liberal nationalist with deep convictions in the Enlightenment values enshrined in the Indian Constitution.

Why? Because the court’s decision further distances constitutional order from a large part of society that remains wedded to tradition. And why is that a cause for concern? Because both a religious conservative and a liberal have one vote each, liberals are generally outnumbered and thus electorally outgunned. Democracy amplifies social reaction, and creates governments, laws, law enforcement officials and even judges who are likely to side with what is popular than what is constitutional. If you don’t believe me, just read the news. We are already in the middle a moral panic where there is a finite risk that the current Constitution of India could be substantively amended if not replaced, almost as the immune reaction of an age-old civilisation that didn’t undergo the same intellectual-historical journey as western Europe.


Also read: Women have a right to pray, can now enter Sabarimala Temple, rules Supreme Court


In arriving at the decision to permit women into the Sabarimala temple, the majority judgment declared that “the subversion and repression of women under the garb of biological or physiological factors cannot be given the seal of legitimacy. Any rule based on discrimination or segregation of women pertaining to biological characteristics is not only unfounded, indefensible and implausible but can also never pass the muster of constitutionality”.

Fine. Now let’s say a woman from Ladakh, an Indian citizen and follower of Tibetan Buddhism, goes to court and challenges that she too ought to have a chance to reincarnate as the next Dalai Lama, will the Supreme Court of India rule in her favour?

Or a Roman Catholic woman from Goa files a petition in the courts against the church, claiming “discrimination and segregation” and demanding the right to be ordained a bishop, or a fair chance to become the next Pope? Or a Bohra woman who claims that she too should have a shot at being a Syedna? Or for that matter, Hindu women petition in the courts because they are practically barred from becoming Sankaracharyas?


Also read: With Sabarimala ruling, Supreme Court is doing its bit to push back patriarchy


Will the Supreme Court uphold its own principle and open the floodgates of global religious reform? And if it decides that women can indeed become Dalai Lamas, Archbishops or Popes, and the concerned religious authorities refuse to comply, will it haul them up in contempt of court? The only country I know that goes in this direction is the People’s Republic of China, not exactly an exemplar of liberal values.

If the Supreme Court really wants to apply this across the board, regardless of religion, then it becomes a global ‘judiciopapist’, swinging its sword of reason over the heads of all religious faiths around the world. If it limits the application of these principles to those who it determines as Hindus (even if they self-identify differently), then it paradoxically violates the very principle — equality before the law — that it intends to uphold.

You don’t have to be from the Hindu Right to see this is as both absurd and unjust. As the dissenting judge, Justice Indu Malhotra pithily wrote: “the equality doctrine enshrined under Article 14 does not overrule the Fundamental Right guaranteed by Article 25 to freely profess, practice and propagate their faith, in accordance with the tenets of their religion”. The Indian Constitution is certainly founded on reason, but it does not impose it on people.

Some people will ask what is the harm in the courts doing what politicians and social leaders lack the will to do. The harm comes from the high risk of unintended adverse consequences.

The British colonial government could abolish sati because Governor-General Lord William Bentinck didn’t have to go back to the people after five years seeking re-election. I would say that even the Constituent Assembly was able to incorporate far-reaching social reformist sections in the constitution because its somewhat-elected members didn’t care too much about their electoral prospects.

Today, thanks to democracy and universal suffrage, religion easily enters politics. The state of Punjab in an ostensibly secular Republic of India has enacted a sacrilege law. Some years ago, ‘blasphemy’ was made an offence under the Information Technology Act, and no one in Parliament or Rashtrapati Bhavan asked just how a secular state could logically have blasphemy as an offence in its statutes. If a majority of the voters feels threatened by changes imposed by the Indian republic, they can do something about it. And the outcome won’t be more liberal.

At a deeper level, the court is a poor substitute for grassroots social reformers. I have previously argued that “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”.


Also read: Indian judiciary doesn’t need to fear the government; it needs to be afraid of itself


Why would the marginal social or political leader take up unpopular causes when you can easily punt it to the court?

Justice Malhotra was right when she ruled “that the grievances were not justiciable” as opposed to her two colleagues who felt that “the law and the society are bestowed with the Herculean task to act as levellers” (emphasis mine).

The Sabarimala verdict is judicial overreach. If legislating from the bench is bad enough, pontificating from it is worse.

The author is the director of the Takshashila Institution, an independent centre for research and education in public policy.

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  1. Look at the scenario in Kerala on another front. A Catholic nun complained to the church authorities that a bishop raped her thirteen times over a period of two years. They didn’t take any action. So she filed an FIR with the police. The police delayed action probably on a nudge from the government fearing electoral set back. A few companion nuns sat on a dharna demanding arrest of the bishop which received immense support from the general public and three months after the FIR was lodged, the bishop was arrested. Now the Catholic Church is rallying behind the arrested bishop. Another bishop has issued a circular declaring the bishop innocent and comparing his persecution to the torture of Jesus Christ. Members of the church are being prodded to support the bishop.
    This has nothing to do with any court verdict. It is a simple investigation into a heinous crime and a religious group is trying to obstruct it. Electoral calculations are already working. No political party, not even the BJP is supporting the nun’s plea for justice. Most probably the Bishop will escape the clutches of law.
    Should the court show leniency to the bishop fearing group disaffiliation to the legal process?
    The gap between an enlightened social view and the reality will always exist. The country has to face it. For fear of alienating a group with prejudices cannot be a reason to suffocate law. I welcome the Supreme court judgement.

  2. In governance and public affairs, a sense of balance and proportion is invaluable. There was a time when Sati too was a sacred Hindu tradition. Someone had to take the opprobrium to put an end to it. Whether it is gay sex or adultery, the highest court also has a sense of how far society has moved, is willing to shed orthodoxy. Its interventions cannot be foolproof, infallible. Sometimes, as in asking for the national anthem to be played before each film show, it can overreach, then has the humility to correct itself. 2. One thing I can say as a decent human being and a not particularly devout Hindu. Our entire body of religious belief and practices tends to ossify. That is why there have been reformers all through the ages. Saint Basavanna, Guru Nanak Devji. If our caste system is so pernicious today, think how much more so it would have been hundreds of years ago, without modern education and economic growth. Be very thankful that the judges of the Supreme Court do not stand for election every five years, follow their head and heart.

  3. One line in your article “What is the harm in the courts doing what politicians and social leaders lack the will to do.” is so profound. In a democracy law making is given to parliament for one reason only. Politicians will not do anything which they know will be against the beliefs of majority.
    That is the same reason Supreme Court should not overreach and do harm to the society in the grab of constitution which is clearly

  4. Would I be justified in approaching the courts,to allow a woman to be appointed as a Bishop.
    How about allowing women in all Masjids without segregation.
    How about the right of Muslim women not to wear the obnoxious Burkha.
    How about allowing Xtian women from entering Church in hot pants and sexy revealing clothing.

  5. Yes, Mr. Pai, I support that any or every religious practitioner must get an equal opportunity to be a Priest, Father, Imam or Dalai Lama. Does not God say that all his followers are equal and dear to him? You have the privilege and immunity for your religious practice only in personal domain inside your homes where you can use two coconuts of three for your ritual. Once out in public space of temples, churches or mosques; you must confirm to the rule of law. If you make a minor boy Jain monk, it must be tested to rule of law. You cannot take juvenile boys and put them to a religious education inside a temple or a madarsa. Those young people must be allowed to choose their future which they will be able to do once they are adult. You can not allow some and prevent some inside a temple by your whim and fancy. But you are free to invite some and not to some in your home bhajan.

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