In Sabarimala case review, Supreme Court must hear out Hindu scholars

The top court should keep in mind equally the right to private esoterica and gender equality in the public sphere.

As Hindus including myself celebrated Vijayadasami last week, protests were raging against the entry of women into the Sabarimala temple to Lord Ayyappa in Kerala following the Supreme Court verdict that ended restrictions on the entry of females between the age of 10 and 50, approximating to the span when women have menstrual periods. While I struggled to make sense of the judgment and the protests, I stumbled on an insightful tweet from Cas Mudde, one of the world's finest political scientists, that said, "Main difference in freedom of religion in France and United States: In the US the main aim is to keep the state out of religion. In France, the main aim is to keep religion out of the state. Says a lot about the state's priorities..."

Main difference in freedom of religion in France and United States:

In the US the main aim is to keep the state out of religion.
In France the main aim is to keep religion out of the state.

Says a lot about the state's priorities...

— Cas Mudde ? (@CasMudde) October 19, 2018

My view is that India is a bit like France and a bit like the US. On the one hand, we have laws against cow slaughter that essentially enforce Hindu beliefs in a multi-religious society, implying a religious intervention in state laws. On the other hand, we have had the Supreme Court verdict declaring women and men as equals in entering the Sabarimala shrine that involves a clear state intervention in matters of religion.

If secularism means the separation of religion from state, we seem to be failing on both counts. But I believe there is a case for state and religion to co-engage to the extent possible to make the country a better place. In that sense, as review petitions pile up before the Supreme Court seeking the restoration of status quo on the ban of women in the Sabarimala temple, I do not take a simplistic view that women should be banned or that they should be allowed into the Sabarimala temple. This is because every religion, be it Hinduism, Sikhism, Islam or Christianity, has essentially three layers: the spiritual, the mystical and the social. It is important to understand the philosophy and principles underlying religious beliefs and not just practices, customs and rituals, for us to arrive at a truly fair middle ground where religion and state can co-exist in harmony.

Some commentators believe that "Law is above faith" but that goes against the spirit of the Constitution that is democratic in character and in which the Right to Worship and Right to Freedom of Speech and Expression are essential features. We also have now the Supreme Court recognising the Right to Privacy as a fundamental right. It is possible to recognise a pilgrimage as an act of collective worship based on common beliefs that need a collective right to privacy in ordained places. A shrine need not be a public property in the sense of a municipal park or a highway to have equal rights to access. In fact, the Supreme Court's privacy ruling also notes that "personal choices governing a way of life are intrinsic to privacy." A religious tradition may be included in that category.

However, it is important to examine principles underlying belief systems. Just as the police have a right to break into a party where banned drugs may be used, the law has the right to examine privacy and worship to the extent that it sees the nature of the engagement as constitutionally legitimate. 

This is where I believe the Supreme Court should have an amicus curiae (friend of the court) that has advisory expertise in religious philosophy so that the honourable judges are guided well on the principles underlying the Sabarimala pilgrimage. It is important here to understand the three aspects of any religious order. If the Oxford dictionary definition of religion is taken, religion is "the belief in and worship of a superhuman controlling power, especially a personal God or gods" as also "a particular system of faith and worship".

Here the spirituality comes from a belief in a supreme being and some noble human values underlying it, such as brotherhood, love, devotion or kindness. That seems common to most leading religions unless we count some rare, controversial faiths.

The social aspect of religion involves material things such as ownership of property, historic practices stemming out of pragmatism and plain habits that may have their roots in ecology or lifestyles.

In between the spiritual and social aspects lie the mystical. The Oxford dictionary defines it as "having a spiritual symbolic or allegorical significance that transcends human understanding". Close to this is the esoteric, defined as "intended for or likely to be understood by only a small number of people with a specialised knowledge or interest."

On the one hand, we can say that in old times, given the arduous trek, pilgrimages were undertaken primarily by men and hence a ban on women can be dismissed as historical and no longer relevant. Manu S Pillai likens the current standoff to the temple entry movement that led to the Maharaja of Travancore allowing Dalits into Hindu shrines in Kerala in 1936 after fierce religious arguments. But Dalit entry seems to have had more to do with an attempt to quell social unrest based on caste discrimination rather than any faith in mystical arguments.

The Supreme Court would do well now to give Hindu groups a fair hearing by invoking experts in esoteric philosophy who also carry credibility not just as scholars but also as practitioners. Modern historians only observe facts and not the underlying principles and tenets (siddhanthas). The court should use its own sense to separate the esoteric and the mystical aspects from the social and give them some space under a right to privacy and worship.

Lord Ayyappa is a special deity who is said to have been born as per an esoteric legend to Lord Shiva as a male and Lord Vishnu taking the temporary form of a "Mohini" (alluring woman) to charm demons (asuras) in order to defeat them. Such a legend involves a deep esoteric meaning on sexuality that can be related closely to the vow of celibacy that pilgrims to Sabarimala undertake during their pilgrimage. The common link has to be explored systematically in terms of the siddhanthas for the court to see if there is room for a private right to worship.

On the other hand, we can interpret the vow of celibacy as an aspect of self-control that men must exercise over their sexuality. The presence of women, in this case, is more to do with the defeat of the demons within the pilgrims who can be charmed or deceived by woman power. In this case, male pilgrims will be enriched by a higher degree of self-control.

Let respected Hindu philosophers become amicus curiae to the Supreme Court to help judges decide on the matter keeping equally in mind the right to private esoterica and gender equality in the public sphere.

(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL.)