So many people instinctively cheered upon hearing that the Indian Supreme Court has ruled that women of all ages must be granted access to the Sabarimala temple in Kerala. Even I was thrilled that the court’s decision came down on the side recognizing women as equal to men even in religious spaces. However, on further thought, I’m afraid I’ve revised my opinion to a more unpopular or contentious view: I don’t believe that upholding a woman’s right to worship as she pleases in any one particular temple is more important than the principle that state law cannot and should not attempt to regulate religious belief systems. Doing so is entering very dangerous territory that is ultimately likely to backfire in some unexpected and deeply damaging way. Our constitution grants us freedom of religion for very good reasons.
In the end, I agree with the dissenting opinion of Justice Indu Malhotra in this legal case. I think it ultimately does more harm than good for the state to try to regulate or dictate religious belief systems, particularly of the irrational or magical variety. The court has said, in effect, ‘You all may believe that the presence of women of a certain age will render your magic spells impotent, but we are telling you that you’re wrong; according to the Constitution, the magic works the same no matter who is present.’ This is patently ridiculous and sets an alarmingly unstable precedent. Why should a secular state set itself up as the arbiter of religious belief? In doing so, doesn’t it assert that the state is itself a religious body? Or does it imagine that it can pull a facade or rationality over magical belief systems? Either way, this adulterates both the law and the belief system. Not to mention, it presents a clear case of judicial overreach.
Unless a religion is propagating a practice that arguably harms individuals or groups who are not at liberty to leave behind that harm, the state has no business instructing a religious body on what they are required to believe—that their spaces are not magically holy or that their magic spells are going to work just the same no matter who is or isn’t present. Expecting state law to come into these matters is absurd. People who don’t believe that women are polluted remain absolutely free to leave and practice their religion on their own terms. More to the point, they can work within their belief community to bring about a change in their cherished belief system from the inside, which is really the only effective way to bring about such a change. Even Ambedkar, who knew a thing or two about the limits of secular law and the constitution, encouraged defection from his religious community as a way to escape its caste discrimination, when his attempts to change it from within were unsuccessful. You cannot force people by state ruling to believe something or to disbelieve something that is patently beyond reason.
Of course, many of us will agree that the court is right in providing remedies to any ‘traditional’ practices promoting harm or discrimination, and we can find many instances where the court has banned certain practices that might have been considered religious practices. For instance, practices such as sati and child marriage—clear cases of harm to individuals, who could not easily escape that harm—were defined as ‘social evils,’ and banned. Here the law has set limits on particular religious practices, which one expects to be evenly applied across all religious communities.
Marriage and inheritance, which have long been considered the purview of religion, was brought partially under the domain of civil law. During the early debates around drafting the Constitution, the state also claimed an interest in regulating marriage. The framers attempted to lay out the scope of that regulation, leading them through contentious debate. Unfortunately, the Uniform Civil Code, which was to make marriage and family law purely a civic matter, lost out and a compromise was found by which different religious identities were granted separate codes for family law. But by codifying these parts of religious law within the secular legal system, the Constitution went a good way towards defining the limits and bounds of the civil family law and how it should intersect with the religious family law of different faiths. Today these debates continue, such that divorce and inheritance laws have continued to evolve.
On the other hand, while untouchability was banned by the Constitution, social and professional discrimination on the basis of caste—or gender, marital status, religion, or a whole host of other grounds—is not illegal in the private or religious sector. Landlords regularly bar members of any faith, caste, gender, or marital status from renting their property, and the law grants no recourse. Hindu temples and Christian churches continue to discriminate within their respective ranks on the basis of caste, gender, and marital status, and there is no question of legal recourse. Mosques continue to regulate entry and hire clergy, based on considerations of gender.
One may well ask why all discriminatory religious practices were not similarly defined as ‘social evils.’ It seems that some of the framers wished, in fact, to preserve certain discriminatory practices and even to preserve the conflation of state and religion, to varying degrees. Unable to agree upon clear limits delineating the intersection of religion and the state, or to clearly define the reach and limits of secularism in the government, they left conflict and ambiguity in their document. As it stands today, the Indian government is deeply involved in religion and religious affairs, even to the point of selecting religious functionaries, keeping them on its payroll, and providing land, infrastructure, and financial support to various religious communities, all of whom regularly practice some forms of discrimination or otherwise infringe on individual civil rights. What has resulted is an inherent conflict between the guarantee of religious freedom and the guarantee of other secular human rights, including protection from discrimination.
It would seem that Sabarimala could have been a useful case upon which to untangle this conflict. What we have here are petitioners demanding the equality of religious status for the female devotees of Sabarimala temple by ruling that this religious community’s superstitious beliefs about worship are unconstitutional, thereby interfering with their freedom of religion. In handing down its judgment, the court might have clarified what should and should not be the scope and limits to freedom of worship, what should and should not be the reach and limits of state intervention in religious affairs, including how much the state may act as an arbiter of irrational beliefs and superstitions within the context of religious practice. After all, who among us can’t quickly name a dozen discriminatory practices in our major religions? Some secularists who believe that initiating children in the religious fold is a form of child abuse. What principles would prevent the state from agreeing with them?
Instead, the court avoided interrogating the limits of religious freedom or the limits of the civil courts to interfere in religious belief. Without clearing up the conflict between religious freedom and other civil rights guaranteed by the state, the court has made a facile and ultimately dangerous ruling. They have created a precedent whereby it can haphazardly interfere in various religious belief systems. This is the kind of governmental overreach that can engender a dark and primordial backlash—especially in India, where the belief systems have ancient roots. We have only to look at the results in Turkey or Iraq, where the state had directly interfered in religion to stamp out various practices or superstitions by law.
What the court might have decided, instead, is that they will not interfere in religious belief systems, even while avowing that the state cannot materially support discriminatory institutions—support which, I understand, is considerable, including allowing the Sabarimala temple authorities to control the temple and its surrounding, state-owned lands. Especially in India, where the state is profoundly supportive of religious institutions, the state can penalize any institution for their discriminatory practices, without involving itself in the interpretation or religious validation of any particular belief system. Drawing a line that disallows the state to support practices that it considers discriminatory, even within the purview of religion, would fundamentally alter the religious landscape, and yet remain a rational, clear-cut, and widely applicable policy across all religious denominations and communities. It retains the Constitutional commitment both to fundamental human rights and to the principle of religious freedom. It would further separate the Indian state from involvement in religion—causing potentially widespread resentment and upheaval; but perhaps this is a conversation whose time has come.
Instead, by using the ideals of secular civil law to shape the content of religious belief—without defining where one ends and the other begins—the state is wandering dangerously away from the ideal of a principled demarcation of state and religion, and this will result in more harm to secular democracy and the greater social good.