Topic Of The Day:-“A Question Of Writ”
The Sabarimala and Asia Bibi cases put the spotlight on how institutions adhere to constitutional principles
On the streets of India and Pakistan, a frightening message is being sent out: that courts must not rush in where politicians fear to tread. In matters of faith, courts must simply sit on their hands and pray for divine intervention to resolve the petition before them. The public and political responses to Supreme Court judgments in two instances — Sabarimala in India and the Asia Bibi case in Pakistan — bear striking similarities. What is different, however, is the ability of the two states to enforce their writ.
Sabarimala is considered to be one of the holiest temples in Hinduism, with one of the largest annualpilgrimages in the world. The faithful believe that the deity’s powers derive from his asceticism, and in particular from his being celibate. Women between the ages of 10 and 50 are barred from participating in the rituals.
The exclusion was given legal sanction by Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965. The validity of the rule and other provisions restricting the entry of women was decided by the Supreme Court last month. The Court, by a majority of 4:1, held that the exclusion of women between these ages was violative of the Constitution.
The Sabarimala judgment
Then Chief Justice of India Dipak Misra and Justice A.M. Khanwilkar held that the practice of excluding women did not constitute an “essential religious practice”. Crucially, the judges also relied on Section 3 of the Act mentioned above which stipulates that places of public worship must be open to all sections and classes of Hindus, notwithstanding any custom or usage to the contrary. It was held that Rule 3(b) prohibiting the entry of women was directly contrary to this. A concurring judge, Justice R.F. Nariman, further held that the right of women (in the age bracket in question) to enter Sabarimala was guaranteed under Article 25(1). This provision states that all persons are “equally entitled” to practise religion. According to him, Rule 3 prohibiting the entry of women, was violative of Article 15(1) of the Constitution.
Justice D.Y. Chandrachud, also concurring, emphasised the transformative nature of the Constitution which was designed to bring about a quantum change in the structure of governance. More crucially, it was a founding document, designed to “transform Indian society by remedying centuries of discrimination against Dalits, women and the marginalised”. ‘Morality’ used in Articles 25 and 26, the judge held, referred to constitutional morality which includes the values of justice, liberty, equality and fraternity.
He also held that barring menstruating women from entering the shrine is violative of Article 17 (the constitutional provision prohibiting untouchability). The judge held that the concept of untouchability is grounded in the ideas of ‘purity and pollution’. These same notions form the basis for excluding the entry of menstruating women into religious shrines.
The sole woman judge, Justice Indu Malhotra, who dissented, reasoned, “Issues of deep religious sentiments should not be ordinarily be interfered by the court. The Sabarimala shrine and the deity is protected by Article 25 of the Constitution of India and the religious practices cannot be solely tested on the basis of Article 14… Notions of rationality cannot be invoked in matters of religion… What constitutes essential religious practice is for the religious community to decide, not for the court. India is a diverse country. Constitutional morality would allow all to practise their beliefs. The court should not interfere unless if there is any aggrieved person from that section or religion.”
While the Bharatiya Janata Party has seen the judgment as an attack on the Hindu religion, the Congress too has not lagged behind. Even an “instinctive liberal” such as Shashi Tharoor has said, “abstract notions of constitutional principle also have to pass the test of societal acceptance — all the more so when they are applied to matters of faith… In religious matters, beliefs must prevail; in a pluralistic democracy, legal principles and cultural autonomy must both be respected…”
Asia Bibi case
In 1929, the funeral of a killer, Ilmuddin, took place in Lahore, executed for the murder of Rampal, a publisher, who had published an allegedly unsavoury reference to the life of Prophet Muhammad. Ilmuddin had been buried without funeral prayers as the authorities anticipated further trouble. But some eminent personalities, who included M.D. Taseer, assured the British authorities that there would be no trouble if there was a proper burial with a procession and Islamic prayers. The British relented and at the public mourning, the funeral prayer had to be read thrice before the surging crowds. The upshot of these events was that Section 295A was introduced into the Indian Penal Code to punish a deliberate insult to religious feelings.
Years later, in Zia-ul-Haq’s Pakistan, Sections 295B and 295C were added to the Pakistan Penal Code which criminalised blasphemy against Islam and even made it punishable with death. In 2009, Asia Bibi, a Christian woman, was accused of blasphemy by her neighbours and jailed pending trial. She was sentenced to death in 2010 by a trial court.
Her case became a cause célèbre and Salman Taseer, the Governor of Pakistan’s Punjab province, visited her in prison to express support. This act by Taseer, who was the son of M.D. Taseer who had negotiatedIlmuddin’s burial, did not go down well. So enraged was his bodyguard Mumtaz Qadri, that he assassinated Taseer in 2011. When Qadri was produced in court for trial, he was showered with rose petals by lawyers. He was tried and hanged in 2016, and his funeral attracted a crowd that rivalled the one at Ilmuddin’s.
Last month, the Supreme Court of Pakistan allowed Asia Bibi’s appeal and declared her innocent of the charges. She has now been released and expected to be granted asylum in Europe. Her lawyer has fledPakistan and the judges now fear for their lives. Pakistan faced the threat of mob violence led by the radical Tehreek-e-Labbaik Pakistan party. Despite Prime Minister Imran Khan’s initial bluster, an agreement has been signed with mob leaders to end the violence.
The Chief Justice of Pakistan, Saqib Nisar, has reportedly defended himself by saying, “No one should have the doubt that the Supreme Court judges are not lovers of Prophet Muhammad… How can we punish someone in the absence of evidence?”
The thread
It is easy to dismiss the Sabarimala and Asia Bibi cases as being unconnected and belonging to different jurisdictions and contexts. But both belong to the same region and trajectory of history. India was built on a secular foundation while Pakistan was built on a majoritarian Muslim agenda. However, both countries profess at least lip service to the rule of law. Years of majoritarianism have brought Pakistan to the point where its institutions have had to defend themselves before doing justice to minorities. India is at a stage, where its majority is seeking to bring its institutions to acquiesce in majoritarian instincts. A majority whose forebears had committed themselves to a magnificent constitutional compact now has elements who seek to regress from those values.
The question is whether the people and the institutions succumb to pressure or adhere to principle. Each individual, regardless of birth ascribed identity, is a minority of one entitled to an individual guarantee of rights protected by the Constitution. It is in the adherence to individual rights that the greater public good rests. Those who sacrifice a little man or woman’s liberty for the security of the many will find neither liberty, nor security.
Let us keep this in mind, as the Supreme Court agrees to hear in open court a review petition against its Sabarima judgment.
MEANINGS AND WORDS
1) tread
Meaning : a person’s manner of walking or the sound made as they walk(n).
Synonyms : tramp
Antonyms : encourage
Example : “I heard the heavy tread of Dad’s boots”
2) enforce
Meaning : compel observance of or compliance with (a law, rule, or obligation).(v)
Synonyms : force
Antonyms : disregard
Example : “the role of the police is to enforce the law”
3) writ.
Meaning : a form of written command in the name of a court or other legal authority to act, or abstain from acting, in a particular way.(n)
Synonyms : mandate
Antonyms : reprieve
Example : “the two reinstated officers issued a writ for libel against the applicants”
4) pilgrimage
Meaning : a pilgrim’s journey.(n)
Synonyms : excursion
Antonyms : stay
Example : “he wanted to go on a pilgrimage to Santiago de Compostela”
5) celibate
Meaning : abstaining from marriage and sexual relations, typically for religious reasons(adj).
Synonyms : monk
Antonyms : slut
Example : “a celibate priest”
6) relied
Meaning : depend on with full trust or confidence.
Synonyms : believed
Antonyms : distrusted
Example : “I know I can rely on your discretion”
7) stipulates
Meaning : demand or specify (a requirement), typically as part of an agreement.
Synonyms : agrees
Antonyms : requests
Example : “he stipulated certain conditions before their marriage”
8) contrary
Meaning : opposite in nature, direction, or meaning(adj).
Synonyms : opposite
Antonyms : similar
Example : “he ignored contrary advice and agreed on the deal”
9) emphasised
Meaning : special importance, value, or prominence given to something.
Synonyms : stress
Antonyms : weakness
Example : “they placed great emphasis on the individual’s freedom”
10) discrimination
Meaning : the unjust or prejudicial treatment of different categories of people, especially on the grounds of race(n)
Synonyms : discernment
Antonyms : fairness
Example : “victims of racial discrimination”
11) fraternity
Meaning : a group of people sharing a common profession or interests(n).
Synonyms : society
Antonyms : sorority
Example : “members of the hunting fraternity”
12) barring
Meaning : except for; if not for.
Synonyms : excluding
Antonyms : abetting
Example : “barring accidents, we should win”
13) shrine
Meaning : a place regarded as holy because of its associations with a divinity or a sacred person or relic, marked by a building or other construction(n).
Synonyms : chancel
Antonyms : secular
Example : “the medieval pilgrim route to the shrine of St James”
14) notions
Meaning : a conception of or belief about something.(n)
Synonyms : thoughts
Antonyms : realities
Example : “children have different notions about the roles of their parents”
15) dissented
Meaning : hold or express opinions that are at variance with those commonly or officially held.(v)
Synonyms : clashed
Antonyms : agreed
Example : “two members dissented from the majority”
16) deity
Meaning : a god or goddess (in a polytheistic religion)(n).
Synonyms : goddess
Antonyms : mortal
Example : “a deity of ancient Greece”
17) aggrieved
Meaning : feeling resentment at having been unfairly treated.(Adj)
Synonyms : upset
Antonyms : pleased
Example : “they were aggrieved at the outcome”
18) instinct
Meaning : an innate, typically fixed pattern of behaviour in animals in response to certain stimuli(n).
Synonyms : feeling
Antonyms : knowledge
Example : “the homing instinct”
19) prevail
Meaning : prove more powerful or superior.(V)
Synonyms : dominate
Antonyms : lose
Example : “it is hard for logic to prevail over emotion”
20) funeral
Meaning : a ceremony or service held shortly after a person’s death, usually including the person’s burial or cremation(n).
Synonyms : inhumation
Antonyms : time
Example : “in the afternoon, he’d attended a funeral”
21) relented
Meaning : abandon or mitigate a severe or harsh attitude, especially by finally yielding to a request(v).
Synonyms : relaxed
Antonyms : resisted
Example : “she was going to refuse his request, but relented”
22) procession
Meaning : a number of people or vehicles moving forward in an orderly fashion, especially as part of a ceremony(n).
Synonyms : parade
Antonyms : retreat
Example : “a funeral procession”
23) deliberate
Meaning : done consciously and intentionally(n).
Synonyms : consider
Antonyms : random
Example : “a deliberate attempt to provoke conflict”
24) blasphemy
Meaning : the action or offence of speaking sacrilegiously about God or sacred things; profane talk.
Synonyms : sacrilege
Antonyms : sanctuary
Example : “he was detained on charges of blasphemy”
25) negotiated
Meaning : obtain or bring about by discussion(v).
Synonyms : intervened
Antonyms : confronted
Example : “he negotiated a new contract with the sellers”
26) rivalled
Meaning : be or seem to be equal or comparable to(V).
Synonyms : competed
Antonyms : partnered
Example : “the efficiency of the Bavarians rivals that of the Viennese”
27) asylum
Meaning : the protection granted by a state to someone who has left their home country as a political refugee(n).
Synonyms : refuge
Antonyms : threat
Example : “she applied for asylum and was granted refugee status”
28) fled
Meaning : run away from a place or situation of danger(v)
Synonyms : escaped
Example : “to escape the fighting, his family fled from their village”
29) Prophet
Meaning : a person regarded as an inspired teacher or proclaimer of the will of God(n)
Synonyms : seer
Antonyms : atheist
Example : “the Old Testament prophet, Jeremiah”
30) defended
Meaning : resist an attack made on (someone or something); protect from harm or danger.
Synonyms : protected
Antonyms : betrayed
Example : “we shall defend our island, whatever the cost”
31) acquiesce
Meaning : accept something reluctantly but without protest(v).
Tamil Meaning : இணங்குவார்
Synonyms : agree
Antonyms : dissent
Example : “Sara acquiesced in his decision”
32) trajectory
Meaning : the path followed by a projectile flying or an object moving under the action of given forces(n).
Synonyms : course
Example : “the missile’s trajectory was preset”
