The Supreme Court yesterday stopped well short of ruling against the widespread practice of Hindu temples only having Brahmins as priests when: "A bench, comprising Justices Ranjan Gogoi and NV Ramanna, desisted from giving a specific ruling on the issue, possibly because of its volatile repercussions in tradition-bound Tamil Nadu and instead said it would examine each appointment for violation of constitutional principles if it is challenged."
By this ruling the inference is that each and every act of enshrined by tradition discrimination in any one of the millions of temples and shrines, the Courts will look into them on a case by case basis. The Supreme Court has already done this. Earlier, in January 2014, the Supreme Court gave a verdict which ended the monopoly of Brahmin priests over the duty of performing rituals at Pandharpur’s Vithoba temple. In August that year, the state government appointed some non-Brahmins and women as priests at the temple. The Supreme Court could have just extended this to include all Hindu institutions.
The Indian Constitution bars any discrimination on grounds of race, gender, caste, religion etc, except for appointment in institutions belonging to a particular religious denomination. This was a great opportunity for the Supreme Court to make an omnibus determination on discrimination and not allow any religious or social institution from practising it. One can even understand a requirement to be a Muslim or a Christian or a Hindu a Communist to become a mulla, padre, pujari or commissar, but to insist on belonging to a certain caste or gender is certainly discriminatory.
Writing the judgment for the bench, Justice Gogoi said, "Requirement of constitutional conformity is inbuilt and if a custom or usage is outside the protective umbrella afforded and envisaged by Articles 25 and 26 (right to practice and profess any religion), the law will certainly take its own course. Constitutional legitimacy, naturally, must supersede all religious beliefs or practices." Then why hold back?
Instead of bowing to tradition, the Supreme Court could have derived inspiration from General Sir Charles James Napier, the commander-in-chief in India from 1849 to 1851. When Hindu priests complained to him about the prohibition of sati by British authorities, he responded:
"Be it so. This burning of widows is your custom; prepare the funeral pile. But my nation has also a custom. When men burn women alive we hang them, and confiscate all their property. My carpenters shall therefore erect gibbets on which to hang all concerned when the widow is consumed. Let us all act according to national customs."
(This piece first appeared on Mohan Guruswamy's Facebook page.)