Recent decisions of the Supreme Court indicates that the Court has embarked on a path of hyperactivism, reminiscient of the US Supreme Court in the 1930s, a path that can only lead to total discomfiture.
With due respect to the majority judges who delivered the Sabarimala verdict (allowing women between the ages of 10 and 50 entry into the temple) it must be pointed out that by their activism and misplaced sympathy for women,they have opened a Pandora’s box, and placed an albatross round the necks of judges and administrators throughout the country.
The correct judgment is that of the sole dissenting judge, Justice Indu Malhotra, who has displayed the balance and restraint which characterises great judges. She has pointed out that India is a country of great diversity, and there are thousands of temples, mosques, gurdwaras, dargahs, etc, many with their own peculiar rituals and practices. It would be extremely imprudent for the judiciary to interfere with these. She has also correctly pointed out that religion is a matter of faith, and that the essential beliefs or practices of a religious denomination or sect are for that denomination or sect to decide.
The majority verdict is based on abstract notions of equality, dignity, gender justice, etc. But in deciding cases, one cannot be guided solely by these. In adjudication, judges have to consider social realities. There is tremendous diversity of religious practices in India. There are some temples which do not permit entry to women, some which do not permit entry to men, and some which do not permit entry to either men or women for specific periods or on special occasions.
Some time ago, news came of a temple in Hamirpur district in Uttar Pradesh that does not permit entry to women. A lady MLA went there when the priest was not present. The temple was purified by Ganges water, and its idol sent to Allahabad for cleaning in the Sangam(the confluence of rivers Ganges and Yamuna in Allahabad). The priest has said that he was not present, otherwise he would never have allowed the woman to enter.
An even bigger problem will now arise about mosques. Although the entry of Muslim women is not prohibited in mosques (the Mecca and Madina mosques in Saudi Arabia allow both sexes to enter) in theory, in practice hardly one or two per cent of mosques in India allow entry to women. They have to pray at home. And even these one or two per cent that allow women (Delhi’s Jama Masjid, for example) have separate enclosures for them.
The justification often given for not allowing entry to women in mosques is shortage of space. But if that is so, why should men get preference? Does that not violate the equality provision in the Constitution on which the majority verdict relied? Why not women first? Let the women pray inside, while the men pray outside the mosque. Or why not devise a system of allotting 50% to each sex ? The Sabarimala verdict cannot be selective for Hindus alone. Its rationale applies to all religious communities.
We have, therefore, to accept the judgment of Justice Malhotra as the only correct and practical one.
Great judges, like the celebrated Justices Holmes and Frankfurter of the US Supreme Court, regularly admonished their brethren on the need for restraint and of discipline in observing their limitations. In his book, Nature of the Judicial Process, Justice Benjamin N Cardozo, a renowned judge of the US Supreme Court, said, “The Judge is not a Knight Errant roaming at will in search of his own ideal of beauty and goodness.”
Recent decisions of the Indian Supreme Court indicate that the court has embarked on a highly unpredictable and perilous path of hyperactivism, reminiscent of the US Supreme Court in the 1930s, a path that can only lead to more problems.
One is reminded of a couplet of the great Urdu poet, Mirza Ghalib:
“Rau mein hai raksh-e-umr kahaan dekhiye thame
Ne haath baag par hai, na pa hai rikaab mein.”
Ne haath baag par hai, na pa hai rikaab mein.”
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