The Supreme Court is moving quite firmly into the cultural and religious domain. It has banned Jallikattu in Tamil Nadu and has questioned the practice restraining women from entering the temple at Sabrimala in Kerala. The Supreme Court is the best judge of the Constitutional validity of its cultural and religious activism. But with the Constitution of India having been amended a hundred times we need to accept that what is constitutionally valid at one point of time need not be so at all times. Judicial activism in religious and cultural matters would then be better judged by non-Constitutional criteria, like: is it in the interests of the country?
The interests of India as a whole would undoubtedly be best served if there was no conflict between what the people of the country believe and what the judiciary thinks the Constitution has laid down. The judiciary can then ensure that the values built into the beliefs of the people can be protected by the law. Unfortunately, the colonial era saw a judicial system based on very different values being imposed in the country.
With India gaining independence and becoming a republic, the Constitution modified the law, but it still did diverge a great deal from what large sections of the country believed. Nehru and other leaders of newly independent India may well have believed that they could convince Indians to accept the values embedded in the Constitution, but even they knew it would not be easy.
Faced with a divergence between the beliefs they had incorporated into the Constitution and those of large sections of Indians, the strategy of the old nationalists was to use exceptions to paper over the divide. Some of these exceptions, like the Muslim personal law and separate tax laws for the Hindu Undivided Family, were put into the law. But a large number of other practices with beliefs that may have contradicted the Constitution were simply ignored.
This convenient arrangement is now being challenged from both sides. With democratisation, people are no longer as defensive about traditional beliefs as they used to be. Competitive politics has resulted in the aggressive projection of traditional practices finding political support, with most political parties in Tamil Nadu lining up against the Supreme Court’s views on Jallikattu. At the same time, votaries of more rationalised laws are beginning to use centralised institutions to ensure traditional beliefs are brought in line with their own.
This is a battle that neither side can win. The votaries of uniform rationalised norms for all sets of beliefs in the country may believe they can win by using the force of the state and the judiciary to implement the law. But controlling the beliefs of a sixth of humanity by force will be difficult, if not impossible. These efforts will then only serve to push these practices underground, as has already happened with animal sacrifice. And if the number of people believing they are right when they defy the law increases, it helps consolidate corruption and worse.
A much more effective approach would be the one followed in gaining entry for Dalits into temples in Kerala. The Vaikom Sathyagraha and other movements created the social and legal milieu for the oppressed sections of the population to gain entry into temples. There is nothing stopping those who believe Jallikattu is cruel to both animals and humans to launch a social movement in Tamil Nadu calling for at least a moderation of its practice. Similarly, if all devotees of Ayyappa can be convinced about the need to allow women into the temple at Sabrimala, the change would be immediate and effective. But this is unlikely to happen as the social movement route to social reform in present-day India has been buried under the self-righteousness that governs current Indian social and political discourse.
(Narendar Pani is Professor, School of Social Sciences, National Institute of Advanced Studies, Bengaluru)...