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Seven-judge bench on Sabarimala won't open Pandora's box, it could rather close it

The Supreme Court must not reverse the trend of affirmative action to back equal rights for women.

VARIETY  |   5-minute read  |   19-11-2019

The lone dissenting judge part of the five-member constitution bench, which ordered that the doors of the Sabarimala temple be thrown open to women of all age groups, including those of menstruating age, justice Indu Malhotra, had warned that changing the status quo through court intervention could open a Pandora's box.

With the court now passing the matter to a yet-to-be constituted seven-judge bench, the issue has indeed become larger than most would have wanted it to. But referring it to the opening of a Pandora's box reflects a poor understanding either the 'box' or what the Supreme Court bench is tasked to evaluate.

A seven-bench Supreme Court will decide on the entry of women to the Sabarimala shrine. (Photo: Reuters)

According to Greek mythology, where the Pandora's box (actually a jar, not a box) finds its first mention, sickness, death and many other kinds of evils were released into the world when the 'box' was opened. The interpretation of this event in Greek mythology is also the origin of misogyny: Pandora is a much-hated figure because she released all evils into the world.

What the larger bench however has to look at is whether India's secular political system offers an egalitarian society. In simple terms, the court has to find whether individual rights are protected within the larger communities they come from.

The individuals in this case happen to be women of all religious communities in India.

The September 2018 Sabarimala verdict was described as discriminatory by many Hindus on the ground that while the court was calling the ban on Hindu women's entry into the Lord Ayyappa shrine a denial of their rights, it was quiet on the ban on Muslim women's entry into mosques or that of menstruating Parsi women into fire temples.

It is not just menstruating Parsi women who can't enter fire temples; women who marry a non-Parsi too were denied the right until Supreme Court intervention.

The Supreme Court's intervention came after Goolrukh Gupta was excommunicated from Parsi religions activities because she married outside her religion in 1991.

Gupta even lost the right to visit the 'Tower of Silence' in the event of her father's death to perform the last rites. In 2010, the Gujarat High Court upheld the customary law, forcing Gupta to approach the Supreme Court.

A five-judge bench led by Chief Justice of India Dipak Misra overruled the Gujarat HC order, ruling that Gupta does not lose the right to enter Parsi temples or participate in other religious rituals because of who she married.

The problem has been that each woman has to knock on the doors of the court to seek protection of her individual rights. Many, of course, cannot do that. It is for this reason that the latest judgment in the Sabarimala case should be seen as a window to correct many wrongs.

The judgment referred the review petitions against the 2018 ruling to a seven-member Constitution bench, in a 3-2 split decision. Former Chief Justice Ranjan Gogoi and Justices Indu Malhotra and AM Khanwilkar wanted the review petitions to be kept pending, while Justices DY Chandrachud and RF Nariman emphasised on the compliance of the earlier judgment.

Justice Gogoi said that the Supreme Court should evolve a common policy on religious places such as Sabarimala. He indicated that Sabarimala would be considered along with the question of the entry of Muslim women in mosques, the restriction of access to fire temples for Parsi women who married outside their community, and female genital mutilation aka khatna in the Dawoodi Bohra community.

The fear many have is that with the court getting into the religious affairs of communities, there could be widespread disgruntlement and open defiance of the apex court order.

Quite clearly, modern societies cannot be expected to live in fear of people violating the rule of law.

Just a month after the 2018 Supreme Court Sabarimala verdict, the Kerala High Court knocked down a petition that sought right for women to enter mosques. The fact that a modern democracy can allow a system where women can be discriminated against at the whims and fancies on the basis of personal laws, is the kind of stuff that opening of 'Pandora's boxes' introduced into the country. It is time to lock them back in.

The Supreme Court's observation in the case of female genital mutilation in the Dawoodi Bohra community is key to understanding why even personal laws should not be treated as inviolable.

Discriminating on the basis of gender in matters of entry to religious places is a violation of a constitutional right. (Photo: Reuters)

Former CJI Dipak Misra in 2018 said that the court cannot reverse the trend of affirmative action to back equal rights for women under the Constitution.

But the Indian Constitution has an inherent contradiction in this regard. While Article 25 says "all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion", Article 21 reads, "No person shall be deprived of his life or personal liberty except according to a procedure established by law."

The right to liberty includes equal access to all places of worship. Discriminating on the basis of gender in matters of entry to religious places is the violation of a constitutional right. Time we sent it back into Pandora's box.

Khatna is a violation of women's right to life. Apologists argue that since both men and women of the community have to undergo the process, it achieves gender equality. What they do not know, or deliberately do not tell, is that the repercussions of the process differ for men and women. The process exposes women to life-long pain while urinating and during menstruation, inability to enjoy sex and unbearable pain during child birth. Men do not undergo any such problems.

It is surprising that such a practice has sanction in the country because disturbing the status quo could hurt religious sentiments.

The court must not reverse the trend of affirmative action.

Pandora's box was the origin of all evil, and all misogyny. We have to live with the evils. The misogyny is not necessary.

Also read: Sabarimala outrage over menstruation is simply contempt for women, an attempt to restrict their prayers, their lives

Read more!

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