January 18, 2016 ☼ Constitution ☼ constitutional morality ☼ judiciary ☼ Provocations ☼ Public Policy ☼ religion ☼ supreme court
This is an archived blog post from The Acorn.
In today’s lead column in The Hindu I argue that India runs the risk of slipping into a “judiciopapist” order, wherein judges have power over matters of religion. In the context of a case before the Supreme Court concerning women’s right to enter traditionally puritanical male domain of Sabarimala temple in Kerala, I argue that “we should be wary of a judiciary that encroaches on more domains, even for causes we consider as desirable and good.” The article reasons that state intervention in religious norms not only create resistance and backlash, but weakens the incentives for endogenous reform to emerge from within religious communities.
“The caveats [circumscribing the domain of religion] are eating into the right [to freedom of religion]. More significant than the issue of whether women should be allowed entry into the Sabarimala temple is the question of whether secular judges ought to be the ones making that call.” [Reform, only left to the judiciary?]
From this, a few readers promptly arrived at the conclusion that I was in favour of rules keeping women out of the temple, and further—on the basis of an older tweet applauding a Supreme Court ruling against polygamy among Muslims—that I was chauvinistic right winger. Amusing as these labels are, an explanation will certainly help.
Is there a contradiction between my support for the Supreme Court rejecting polygamy and my concern over the Supreme Court deciding on Sabarimala entry rules? Well, only if you presume I oppose women’s entry into the Sabarimala. The value judgement on a decision is quite separate from the value judgement on the process by which the decision was taken. As I spell out in the article, it is better for social reform to emerge within society. The position is the same, whether it is temple, church or mosque entry; or whether it is temple elephant markings, polygamy or voluntary suicide.
However, if the Court is seized with a case, it is just as well that it upholds the constitutional values of liberty and equality. It would be a “good” decision if the court permits women entry into Sabarimala, just like it was a good decision to disallow polygamy. Even so, we should be worried that secular judges are making those religious calls.
Related Links: More this issue by Gautam Bhatia in The Hindu and IndConLawPhil blog; and a monograph by Ronojoy Sen on the Indian Supreme Court and secularism (pdf)
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