Threat to rule of law

When populism and electoral politics overweigh constitutionalism, the nation falls into a deep crisis.

Priests carrying out a purification ritual at Sabarimala after two women below 50 entered the shrine, on January 2.

One cannot always insist that the constitutional court which often takes a counter-majoritarian role in the process of judicial review gives only “popular” verdicts. Brown vs Board of Education was decided by the United States Supreme Court in 1954, holding that in schools that were meant to be exclusively for whites black students could not be fenced out since it amounted to racial discrimination. Years later, George Wallace, the Governor of Alabama, whose political promise included maintenance of segregation of blacks and whites “forever”, stood at the doors of the University of Alabama on June 11, 1963, in protest against the court verdict. He attempted to physically prevent Vivian Malone and James Hood, two African-American students, from entering the school. President John F. Kennedy thereupon asked Wallace to step aside. The students were ultimately given admission. The law laid down by the top court was thus implemented and, in the process, the political executive played a proactive role.

The action of the Sabarimala tantri of closing the shrine for the purpose of “purification ceremony” and conducting such “sudhikriya” in the aftermath of two young women’s entry would call for a comprehensive jurisprudential discourse. The case becomes unique in view of the defiance of the apex court’s declaration of law, not only by the tantri but also by the political party that governs the country. The Bharatiya Janata Party’s (BJP) president even said the courts should pass verdicts that are implementable, thereby indicating the perceived “unenforceability” of the Supreme Court verdict on Sabarimala. This is in sharp contrast to the role played by the political executive in the U.S. in the aftermath of Brown vs Board of Education .

In a narrow compass, the question would be whether the tantri who performed the sudhikriya is liable for an action for contempt of court. Section 2 read with Section 12 of the Contempt of Courts Act, 1971, says that a wilful disobedience or an act that lowers the authority of the court or interfering with due course of any judicial proceeding is a punishable offence. It is, however, fallacious to reduce the post-verdict episode at Sabarimala to an individual act of defiance. The tantri’s act is part of the massive effort to overturn the apex court verdict. This is a process predominantly initiated and perpetuated by Hindutva forces in the country. One has to see how far such practice would meddle with the very working of the Constitution and what the legal and political means to prevent it are.

Radical equality

In an article, the legal scholar Prof. Upendra Baxi has written that Article 17 of the Constitution hints at “permanent” and “temporary” states of “untouchability”. He says: “The latter is incurred by a pious Hindu in many situations—for example, a full bath cures going to a funeral or touching a corpse, a proper puja and a dip in the Ganga cures going overseas or a contact with a foreigner. Menstruation cycles render a woman impure for three days. The Constitution forbids all states of ‘untouchability’ and imposes a total prohibition on practising it” (“Jurisprudence of inverted commas”, The Hindu , September 3, 2018).

In the Sabarimala judgment, it was only Justice D.Y. Chandrachud who ventured to see the exclusion of menstruating women as an instance of “untouchability”, a practice expressly prohibited by Article 17 of the Constitution. According to him, Article 17 could not be given a restricted meaning by limiting it to caste-based notions. He held:

“Article 17 is an intrinsic part of the social transformation which the Constitution seeks to achieve.... Untouchability in any form is forbidden.... As an expression of the anti-exclusion principle, (Article 17) cannot be read to exclude women against whom social exclusion of the worst kind has been practised and legitimised on notions of purity and pollution.”

The idea of radical equality reflected in Chandrachud’s judgment clearly endorses Prof. Baxi’s line of thought. Jurisprudentially, the tantri’s act of “purification” negates the very philosophical premise of Justice Chandrachud’s opinion. When the matter was heard in the Supreme Court, many doubted whether a detailed constitutional exposition of Article 17 was required in the matter, since the practice of expulsion of menstruating women would be hit even otherwise by Articles 14, 15 and 25 of the Constitution. However, the tantri’s act now underlines the significance of this line of adjudication. The tantri has, in clear terms, illustrated that the exclusion of women is based on the notion of impurity coupled with untouchability. The very attitude behind the sudhikriya becomes contumacious as it opposes the very intent and content of the top court verdict.

The Protection of Civil Rights Act, 1955, by way of Section 7, prohibits the practice of untouchability in any form which in itself is a punishable offence. The apex court verdict thus gives an extended meaning to the prohibitory clauses in this Central statute.

Devaswom Board’s power

Whether the Travancore Devaswom Board (TDB) has the authority to proceed against the tantri for his act of defiance is also being debated in the public domain. The Sabarimala is a public temple under the TDB, which is a public body constituted as per the provisions of the Travancore-Cochin Hindu Religious Institutions Act, 1950. True that, unlike other employees, the tantri is an ecclesiastical dignitary and an accredited custodian of the deity. This position, however, does not place him above the law of the land laid down by the top court.

The contention that he is not an employee of the TDB and therefore is not amenable to the disciplinary jurisdiction may not sustain in view of the implication in a Division Bench judgment of the Kerala High Court in Kantararu Mohanaru vs Travancore Devaswom Board (2016(1) Kerala High Court Cases 381). In that case, the erstwhile tantri, who was kept out of duty by the TDB on the basis of certain allegations, had approached the High Court. The court endorsed the action of the TDB of keeping the tantri away. The court even indicated about the “institutional need to assess the conduct” of the tantri by the TDB. After expressing the inability to hold that the TDB’s order was vitiated for want of reasons, the court directed the TDB to provide an opportunity of hearing to the petitioner and to take a decision regarding his reinstatement.

The Constitution Bench judgment, as it now stands, has examined the contentions based on religious faith and custom, which are subject to other provisions under Part III of the Constitution which includes Articles 14, 15, 21 and 25 containing the equality and dignity clauses. It essentially places women on a par with men in the public temple and upholds “the vague but powerful idea of human dignity”, as Ronald Dworkin famously put it ( Taking Rights Seriously , Cambridge, Harvard University Press, 1977).

The action of the tantri is, therefore, much more than a technical breach or “wilful disobedience” referred to in the Contempt of Court Act. His public conduct also involves an effort to revive the very unconstitutional approach the Supreme Court wanted to eradicate. More importantly, it is part and parcel of the ongoing communal onslaught that challenges the rule of law, which sustains India’s democracy. The tantri, by way of sudhikriya , acted as an extraconstitutional authority and the general support that he received is the real threat to constitutional praxis. Even after the verdict, women of menstrual age had to struggle immensely to reach the shrine and only a few managed to do so. The religious orthodoxy, with the help of Hindutva forces under the ruling regime at the Centre, tries to nullify the victory that women attained through long legal battles and political struggles. For that, they inter alia rely on the brahminical privileges attached to the tantri.

Constitutionalism in crisis

Religious majoritarianism in India has a track record of openly defying court directives, thereby challenging the idea of the rule of law. Fanaticism often took the shape of street vandalism and even state machinery was misused for fulfilling its communal agenda. In S.R.Bommai (1994), the action of the governments of three States—Madhya Pradesh, Himachal Pradesh and Rajasthan—of aiding karsevaks in the infamous Babri Masjid demolition drive was held by the Supreme Court as an act offending secularism. The saga continues even now when the demand for construction of a Ram temple in Ayodhya is in the air even as the matter is seized by the top court.

William B. Hornblower, the American jurist, asked way back in 1912: “Are we to continue to be a government of law administered by the courts, or are we to become a government of agitators by whom law and the courts are only to be tolerated so long as the law and the courts are in accord with the popular wishes of the moment?” (“The Independence of the Judiciary, The Safeguard of Free Institutions”, Yale Law Journal , 1912). Thus the legal relevance of the Sabarimala defiance has a historical and political facet.

The Supreme Court, as the guardian of the Constitution, faces a great challenge in the Sabarimala case. Alexander Hamilton famously said that “the judiciary is, beyond comparison, the weakest of the three departments of power; ...it can never attack with success either of the other two; and... all possible care is requisite to enable it to defend itself against their attacks”. But when populism and electoral politics overweigh constitutionalism, the nation falls into a deep crisis.

History tells us that many a decision that altered the history of humankind initially faced populist opponents in the political domain. Furman vs Georgia (1972), which banned the death penalty, and Roe vs Wade (1973), which liberalised the conditions for abortion, were all politically challenged by the orthodoxy. In the long run, these verdicts proved emblematic. The Sabarimala judgment, hopefully, will stand the test of time.

As the British author Karen Armstrong put it: “We can either emphasise those aspects of our traditions, religious or secular, that speak of hatred, exclusion and suspicion or we can work with those that stress the interdependence and equality of all human beings” (Twelve Steps to a Compassionate Life, New York, 2011).

Kaleeswaram Raj is a lawyer in theSupreme Court of India.