THE SABARIMALA VERDICT: INDIAN EQUALITY OR WESTERN EQUALITY?
One of the contemporary matters of discussion in the Indian legal scenario revolves around the recent Sabarimala judgment by the Hon’ble Supreme Court. The judgment is primarily centered around Article 14 of the Indian Constitution which guarantees right to equality. It is often viewed as a conflict point between Article 14 which guarantees Right to Equality and Article 25 which guarantees Right to Freedom of Religion.
As is the case with most of the debates in India which someway or the other are connected to religion, this issue also garners strong views from both sides. A section of the society strongly welcomed this judgment because as a result of this judgment women of all ages(including 10 to 50) were allowed to enter the Sabarimala temple. A section of the society also opposed this judgment on the pretext that it violated the customs laid down according to that particular temple and which had been followed since time immemorial.
However, amidst all this discussion, the thing which is often forgotten in these contemporary and often heated debates is Article 13 of the Constitution. Article 13 of the Constitution also recognizes customs as a valid source of law. Thus, a conflict arises that if the custom is recognized as a source of law, then why was it not upheld in this particular case.
The plea which is often given is that the custom in this particular case is a discriminatory one. I believe that this plea is largely based on the English notion of Rights. In the English scenario and also generally in the West, the concept of public right and private right is a separate one. This essentially means that the public rights enjoyed in the public in general and the private rights enjoyed by the individual within the four walls of his house are a completely different concept. However, when it comes to the Indian context no such distinction between public rights and private rights is seen in practice. Religion is not only included as a part of the private life of the individual but it is also a part of the public life. A literal Western interpretation of the idea of equality equates to being identical. This ideology and interpretation sound very good for a homogeneous society like the West. However, India is anything but a homogeneous society. Thus, applying the Western interpretation of the idea of equality to the Indian context can be a dangerous proposition. As a matter of fact, there are various customs which are inherent to Indian scenario only. One won’t find these peculiarities anywhere else in the world. The same is the case with Sabarimala. The peculiar custom of the Sabarimala temple is connected to Lord Ayyappan. It has been uniformly and consistently followed by the devotees, including women, that there shall be no entry of women of a particular age group owing to customary beliefs. Till date, this belief was protected as a custom under Article 13 of the Constitution. However, the recent verdict has changed this position. If parallels are drawn even within the Indian context, a similar judgment was delivered by the Bombay High Court where the issue was again the entry of women. At the same time, one should be mindful of the fact that there are around 18 temples in India, where the entry of men is prohibited, the reason again being the custom peculiar to certain deities and temples. If the same logic is applied in these cases as well, then it would open up a Pandora’s box.
This makes me come up with two questions. The first question is that whether a literal interpretation of the term equality is fruitful for the Indian democracy or whether one should act on those lines where no gross injustice is caused to any particular section of the society? The second question which arises is that whether the Indian society has become more developed after adopting the literal Western interpretation of the idea of equality or whether the Indian democracy and society was truly developed from the beginning itself?
I would like to adhere to the second view for the first question, where the larger interests of the society and the absence of gross injustice should be given primacy over the literal interpretation of equality, which in a way is similar to the concept of the collective interest of the public at large.
As far as the second question is concerned there is no straight jacket formula to determine whether the former view holds good or the latter one. But the one thing that is for sure is that we should always borrow the positive aspects of the other civilizations and legal systems in the world. At the same time, we should also try to mold it in such a way that it can be applied to the Indian context peacefully.