[The court rules on issues that many Indians argue should be tackled by Parliament — notably environmental degradation as India urbanizes, rights for women and minorities and even municipal issues such as garbage dumping and outlawing fireworks in Delhi during the Hindu festival of Diwali, when the city chokes on pollution.]
By Vidhi Doshi and Joanna
Slater
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On Sept. 27, India's top
court lifted a ban that prevented female devotees between
the age of 10 and 50 from
entering an ancient Hindu temple in Kerala. (Reuters)
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NEW
DELHI — India’s Supreme
Court on Friday overturned a renowned Hindu temple’s effective ban on the
admission of menstruating women, the latest in a trio of pathbreaking verdicts
this month that have taken aim at colonial-era laws and the country’s deeply
entrenched patriarchy.
The ruling gave women the right to enter a
12th century Hindu temple that was closed off to female devotees aged 10 to 50,
roughly covering their menstruating years. The decision followed the court’s
decriminalization of gay sex and adultery earlier in September, both
trailblazing verdicts that came after long legal battles.
“In the last two or three years, we are again
seeing the emergence of a liberal court,” said Indira Jaising, a lawyer who
represented women campaigning to lift restrictions on entry into the Ayyappan
temple in the southern Indian state of Kerala.
India’s Supreme Court often makes decisions
that politicians and bureaucrats decline to touch. Unlike the U.S. Supreme
Court, which hears only about 80 cases every year, the 25 judges of India’s top
court hear 9,000 cases and deliver 1,000 verdicts a year, according to Aparna
Chandra, a professor at the National Law University in New Delhi.
The court rules on issues that many Indians
argue should be tackled by Parliament — notably environmental degradation as
India urbanizes, rights for women and minorities and even municipal issues such
as garbage dumping and outlawing fireworks in Delhi during the Hindu festival
of Diwali, when the city chokes on pollution.
“It’s a question of the court filling a
vacuum,” said Gautam Bhatia, a lawyer practicing in Delhi. “And that means it
is not just adjudicating issues of law but also acting as a moral and ethical
barometer.”
The verdicts come as India’s chief justice,
known for his liberal judgments, prepares to step down on Tuesday, a day before
his 65th birthday — the legal age of retirement from the court. Experts said
the judge has taken on a number of “legacy cases” in recent months to cement
his role in history books as he prepared to retire.
“Historically, women have been treated with
inequality,” said the chief justice, Dipak Misra, as he delivered the verdict
to lift the Ayyappan temple’s restrictions on women’s entry. “Society has to
undergo a perception shift.”
The Supreme Court’s fierce independence stems
from an existential crisis during India’s emergency rule from 1975 to 1977, a
period of executive rule under then-Prime Minister Indira Gandhi, during which
a compliant court suspended fundamental rights and allowed the government to
imprison political dissidents.
After the emergency ended, the court became
increasingly autonomous — snatching the power to appoint judges from the
executive and widening access to the court through public interest litigation —
a quirky legal tool that allows anyone to have his or her case heard by the
Supreme Court. The court also takes on cases suo motu — a Latin phrase meaning
on its own motion — based on news articles.
The court has assumed a particularly
important role in the age of majoritarian politics, said Jaising, the
plaintiffs’ lawyer in the temple case, who was a legal adviser to the previous
Congress Party-led government. Prime Minister Narendra Modi’s governing
Bharatiya Janata Party (BJP) courts India’s Hindu majority, she said, and
Friday’s ruling to allow women into the ancient shrine “really dents the
primacy of religion, which is a fundamental plank of this government’s
politics.”
Modi has remained neutral on the court’s
rulings in the gay sex, adultery and temple cases.
Despite those progressive judgments, said
Dushyant Dave, a senior lawyer, the court has been unwilling to rule against
the government on thorny, politically sensitive cases.
On Friday, just minutes after allowing women
into the ancient temple, the court also extended the house arrest of five
political dissidents. On Thursday, in a complicated and long-running case about
whether a Hindu temple can be built on the site of a mosque razed by Hindu
hard-liners in 1992, the court’s judgment favored the Hindu majority. Earlier
this year, the court also brushed aside the need for an independent probe into
the suspicious death of a high court judge, in a case that was linked to the powerful
president of the BJP, Amit Shah.
Dave said the court’s progressive rulings on
women’s and gay rights were “inevitable in this day and age,” low-hanging fruit
for a judge bent on establishing his legacy. “The real test comes when there’s
a serious difference between the government and citizens,” he said. “That’s
where you have to show that you’re willing to stand up to the executive of the
day.”
Still, for many, overturning a centuries-old rule
marked a significant step in the right direction.
The Ayyappan shrine, which sits on a mountain
surrounded by a densely forested tiger reserve and is visited by 50 million
pilgrims every year, has been closed to women who are between puberty and menopause.
Menstruation is associated with impurity in
India, and menstruating women face huge stigma. They are often kept out of
communal cooking and eating places on days that they are menstruating and
barred from entering temples. Jaising argued in court that the restriction was
a form of untouchability, an ancient practice that segregates “impure” people
under India’s outlawed, but still operational, caste system.
Nikita Azad, a petitioner who appealed to the
Supreme Court in 2015 said the court’s judgment “definitely sends a message,”
although changing social attitudes would take many years.
Now a Rhodes scholar at Oxford University
researching menstruation and capitalism for her master’s degree in women’s
studies, Azad comes from a deeply religious Hindu family and has always wanted
to visit the shrine with her parents. She plans to visit the temple a year from
now, when she returns to India from Oxford.
Temple authorities said they have the right
to manage their own religious affairs and will appeal the court’s verdict.
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