Recently, Dr. Shashi Tharoor shared on Twitter an article he wrote on the Sabarimala controversy and his opinions on the same. He titled it "Why Sabarimala issue leaves instinctive liberals like me torn". Naturally, my curiosity was piqued and I proceeded to read the article the MP had written. (Tharoor's article can be found here: https://theprint.in/opinion/why-sabarimala-issue-leaves-instinctive-liberals-like-me-torn-shashi-tharoor/147759/)
Seeing that the shrine opens today, and that I had some thoughts about the article when I read it, I feel compelled to pen down the same today.
Tharoor begins the article by listing what he says are the four principles at stake in the Sabarimala issue. He goes on to say that while he usually adheres to all four principles at the same time, he finds that the principles clash with each other in the Sabarimala case. He says:
I have no problem in accepting Tharoor's list of the principles at stake, but I do not agree with his view that these principles clash with each other or that they are "diametrically opposed to each other".
It is very simple to see why the first two principles would lead to the conclusion that women must be allowed into the shrine. "Unconditional" respect for equality of men and women demands that women be given access to public spaces on the same footing as men. It is very interesting that Tharoor uses the word "unconditional"- and Im happy that he did so.
"Unconditional" implies that this respect for equality does not come with riders. There are no exceptions. There is no "so long as religious beliefs permit it". There is no "so long as it does not offend believers" or "so long as it does not go against established customs". The meaning of the word "unconditional" is simple. There cannot be any compromise on achieving equality between men and women.
Devotees and those who support the custom have argued that women are involved in the Sabarimala prayers at the "initial"/"preparatory" stages. "You dont have to actually go to the shrine to be a part of the prayers". "Women do this and that at home, they perform this and do that, men go. So women are as much a part of this as men".
The problem is that prescribing separate acts for each gender and saying "You have to do this, and you can't do that" is completely against equality. Strict adherence to gender roles removes the concept of choice. Society shouldn't be able to dictate what is acceptable for a particular gender and what isn't. It is a consequence of this attitude that denied education to women for years. It is a consequence of this attitude that people think that a woman's role is in the kitchen, or that it is a woman's duty to "obey" her husband, and I argue, exactly this attitude that perpetuated (and continues to perpetuate) discrimination against the LGBTQIA+ community as well.
It is unfair for the society to prescribe specific roles for members of a particular gender and then to expect each and every individual of that gender to listen. This is nothing but taking away the concept of choice. Women (and men, and everyone else) must be allowed to choose how they want to be a part of the prayers/rituals at Sabarimala (or if they want to be involved at all).
The second principle that Tharoor lists is respect for the constitution and the institutions it has created. Tharoor says "... notably the decisions of the Supreme Court". This one is fairly straightforward. If the Supreme Court has ordered that women be let in, then you will have to support the entry of women. There cannot be any contrary view to this.
Now let's come to the third and fourth principles- the 2 principles that Tharoor says lead to results that "are diametrically opposite" the first two.
The third principle is respect for religious adherents to follow their beliefs and practices, so long as they do no harm to others.
Unfortunately, my social media presence and the statements I've made have led many to believe that Im opposed to this principle. And it probably is due to my own doing. But I have said this in public before, and I will say it again- I will stand against any attempt to prevent believers from exercising their faith or from practicing their beliefs. I will strongly support the right of believers to practice and propagate their religion. However, unlike the first principle, this is not "unconditional".
Tharoor puts in a condition himself- "so long as they do no harm to others".
Tharoor seems to believe that this principle would support the custom of denying access to women between the age of 10 and 50. This would mean that Tharoor believes that there is no harm caused by this religious belief.
To analyse this, we would need to understand what the word "harm" means. Does this mean only physical injury? Certainly not. One of the most widely accepted/known definitions of "harm" comes from the moral philosopher Bernard Gert who says harm is any of the following:
So is preventing access to temples "causing harm"? Remember that the reasoning here is irrelevant. Because if it is shown that preventing access to temples causes harm, then the reason doesn't matter.
And this is where the crux is. "There is no discrimination because there is no loss/harm caused" is untrue. If Tharoor thinks that preventing access to temples causes no harm, then I expect him to stick to the same stand when it comes to whether Dalits can be prevented from entering temples.
Tharoor argues that "women are barred out of respect for His wishes. These are questions of faith, not rationality and susceptible to emotion, not reason".
If people accuse me of "equating the Sabarimala practice to denial of access on grounds of caste", I accept the accusation, especially because your justification for the sabarimala practice on this ground is the same justification that casteists/apologists had to prevent the entry of Dalits into temples many years ago.
The caste system is not based on logic or reason, but there are caste hindus, who with all their faith and sincerely hold the view that Dalits should not be allowed into temples for whatever reason. It is a matter of faith for them. Does Tharoor's statement- "These are questions of faith, not rationality and susceptible to emotion, not reason" seem a valid justification for this?
It is saddening that some "progressive liberals" have identified the horrors of the caste system but do not apply their logic and reasoning when it comes to how we treat or look at women, and those who are non-binary.
Denial of access to temples leads to loss of freedom which is harm. Simple.
Further, various arguments were made in the Supreme Court and on social media that the bar is due to Ayyappa's status as a naishtika brahmachari and due to his vows and hence, there was no "disrespect to women". But all one has to do is see the interview of the priests of the temple to the media given last month when women activists were blocked from entering the temple. The priest clearly said that it was their belief that "menstruating women/women of menstruating age" must not enter. It is extremely obvious that this is the taboo that exists. Every thing else is just (dishonest) intellectualisation by those who know that this argument would not find favor.
And even if that is not the case- even if the status of Ayyappa being a naishtik brahmachari is the reasoning behind the bar, such a belief still causes harm by denying access to public spaces on equal footing leading to loss of freedom and hence, it does not go against the third principle to support entry of women inside the shrine. Justice Chandrachud, in the Supreme Court judgment spoke very rightly about "imposing the burden of a man's vows on a woman". That is unfair and cannot be allowed.
The last principle is "respect for democracy, and the rule of law that sustains it". My point is that respect for rule of law necessitates respect for Supreme Court decisions.
"Respect for democracy" does not mean majoritarian views must succeed all the time. Tharoor knows this all too well. If the belief of the majority is discriminatory, a democracy- especially one with a constitution like ours- will not or atleast, should not allow such views to survive.
Perhaps the most problematic statement that Tharoor made in his article is this one:
"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."
This is an extremely dangerous statement to make. The Constitution, especially the fundamental rights chapter exists so that those who do not find social acceptance are protected by the law. This is why the Court has been able to recognize live-in relationships, LGBTQIA+ rights, stand against casteism etc.
Fundamental Rights exist in our constitution to ensure that those who do not have social acceptance have the protection of the law. To say that constitutional principles itself must "pass the test of social acceptance" is hence, extremely dangerous. To add on "all the more so when they are applied to matters of faith" is unbelievable. Tharoor must know that this line of reasoning will be easily used by his largest political rivals to defend policies/views that they promote that Tharoor may be strongly against. And this reasoning would support such policies and views.
I do not completely disagree with Tharoor's article though. I agree with his views on how CPI(M) and the BJP have handled this issue (though I would not spare Tharoor's Congress Party as well). I also agree with him that Courts deciding what constitutes "essential religious practice" is problematic.
Courts cannot and should not do that. In my view, there is no necessity for an "essential practices test". Test all practices against the anvil of fundamental rights. Any practice that survives the fundamental rights test can be allowed and any practice, essential or not, must not be allowed to exist if it violates fundamental rights. The fact that a practice is extremely important to one religious group cannot be justification to allow violation of fundamental rights. That is the inherent flaw the essential feature test.
Tharoor also states:
It is because of that unconditional respect must there be disdain for religious practices that do not respect equality. Catholic Churches must consider females on the same footing as males when appointing priests. All mosques must be open for entry of women and so must those Shinto monastries that Tharoor speaks of. Gender equality cannot be compromised.
What is interesting is that Tharoor says the law has "chosen to" interfere in Sabarimala but not the other issues. No. A PIL was filed forcing the law to look into these issues, and the law interfered. I sincerely hope similar petitions for throwing open mosques and monastries to women follow, or to ensure that women are considered on the same footing as men for appointment as priests also follows. I will fully support each and every one of those petitions.
And this is what concerns many believers. They believe that this judgment could lead to the Supreme Court interfering in every religious practice. This was also highlighted in the dissenting opinion of Justice Indu Malhotra in her portion on maintainability, unless I am mistaken. However, this is not a "concern" for me. I look forward to it. "Let justice be done, though the heavens fall" is the phrase. Justice must be done irrespective of the consequences and our commitment to justice cannot waver.
Tharoor ends his article thus:
This leaves instinctive liberals like me torn between our basic respect for gender equality and our democratic duty to respect the beliefs and wishes of our constituents. In religious matters, beliefs must prevail; in a pluralistic democracy, legal principles and cultural autonomy must both be respected. The Supreme Court has a chance to consider all these issues when it hears the review petitions on 13 November. Once it rules, we must all work co-operatively, in consultation with all stakeholders and with respect for the Constitution and the believers, to decide how to take this complex issue forward.
Saying "In religious matters, beliefs must prevail" would directly support multiple harmful and discriminatory practices in various religion. The Supreme Court has now agreed to hear the review petitions in detail in open court next year.
Here is sincerely hoping that Constitutional values do not fall prey to the threat posed by religious groups.
Tharoor also seems to have tweeted today that the Congress stands "unconditionally for equality but also firmly with the believers". Such (deliberate?) lack of clarity or failure to take a stance from a man of Shashi Tharoor's status is disappointing.
Dr. Tharoor, it is not the four principles you had stated at the beginning of your article that are in conflict with each other. It is the principle of equality and the faith of the believers. You cannot stand with both. It is surprising that you find no conflict in the latter and are somehow able to support both. That leaves me very confused.
Seeing that the shrine opens today, and that I had some thoughts about the article when I read it, I feel compelled to pen down the same today.
Tharoor begins the article by listing what he says are the four principles at stake in the Sabarimala issue. He goes on to say that while he usually adheres to all four principles at the same time, he finds that the principles clash with each other in the Sabarimala case. He says:
There are four principles at stake on Sabarimala, all of which I normally have no difficulty adhering to at the same time:
- Unconditional respect for the equality of women and men;
- Respect for the Constitution and the institutions it has created, notably the decisions of the Supreme Court;
- Respect for the rights of religious adherents to follow their beliefs and practices, so long as they do no harm to others; and
- Respect for Indian democracy and the rule of law that sustains it.
What is unusual about Sabarimala is that it offers the first example, in my experience, of these invaluable and seemingly unchallengeable principles clashing with each other.As a constitutionalist and a liberal, I can easily uphold the first two principles. As a democrat and an elected representative responsive to his voters, I am happy to uphold the last two. The problem is that the two pairs of admirable values are diametrically opposed to each other on Sabarimala.
I have no problem in accepting Tharoor's list of the principles at stake, but I do not agree with his view that these principles clash with each other or that they are "diametrically opposed to each other".
It is very simple to see why the first two principles would lead to the conclusion that women must be allowed into the shrine. "Unconditional" respect for equality of men and women demands that women be given access to public spaces on the same footing as men. It is very interesting that Tharoor uses the word "unconditional"- and Im happy that he did so.
"Unconditional" implies that this respect for equality does not come with riders. There are no exceptions. There is no "so long as religious beliefs permit it". There is no "so long as it does not offend believers" or "so long as it does not go against established customs". The meaning of the word "unconditional" is simple. There cannot be any compromise on achieving equality between men and women.
Devotees and those who support the custom have argued that women are involved in the Sabarimala prayers at the "initial"/"preparatory" stages. "You dont have to actually go to the shrine to be a part of the prayers". "Women do this and that at home, they perform this and do that, men go. So women are as much a part of this as men".
The problem is that prescribing separate acts for each gender and saying "You have to do this, and you can't do that" is completely against equality. Strict adherence to gender roles removes the concept of choice. Society shouldn't be able to dictate what is acceptable for a particular gender and what isn't. It is a consequence of this attitude that denied education to women for years. It is a consequence of this attitude that people think that a woman's role is in the kitchen, or that it is a woman's duty to "obey" her husband, and I argue, exactly this attitude that perpetuated (and continues to perpetuate) discrimination against the LGBTQIA+ community as well.
It is unfair for the society to prescribe specific roles for members of a particular gender and then to expect each and every individual of that gender to listen. This is nothing but taking away the concept of choice. Women (and men, and everyone else) must be allowed to choose how they want to be a part of the prayers/rituals at Sabarimala (or if they want to be involved at all).
The second principle that Tharoor lists is respect for the constitution and the institutions it has created. Tharoor says "... notably the decisions of the Supreme Court". This one is fairly straightforward. If the Supreme Court has ordered that women be let in, then you will have to support the entry of women. There cannot be any contrary view to this.
Now let's come to the third and fourth principles- the 2 principles that Tharoor says lead to results that "are diametrically opposite" the first two.
The third principle is respect for religious adherents to follow their beliefs and practices, so long as they do no harm to others.
Unfortunately, my social media presence and the statements I've made have led many to believe that Im opposed to this principle. And it probably is due to my own doing. But I have said this in public before, and I will say it again- I will stand against any attempt to prevent believers from exercising their faith or from practicing their beliefs. I will strongly support the right of believers to practice and propagate their religion. However, unlike the first principle, this is not "unconditional".
Tharoor puts in a condition himself- "so long as they do no harm to others".
Tharoor seems to believe that this principle would support the custom of denying access to women between the age of 10 and 50. This would mean that Tharoor believes that there is no harm caused by this religious belief.
To analyse this, we would need to understand what the word "harm" means. Does this mean only physical injury? Certainly not. One of the most widely accepted/known definitions of "harm" comes from the moral philosopher Bernard Gert who says harm is any of the following:
1. PainTharoor, later on in his article, speaks about the reason behind the custom. He says that the legend of Sabarimala is that Ayyappa did not want to "see any female in the reproductive stage in life" and hence deliberately removed himself to the temple shrine. The accuracy of Tharoor's description of the legend is whole another debate to be had, but even if it were true, the third principle states that beliefs and practices can be followed and respected so long as they do not cause harm.
2. Disability
3. Death
4. Loss of ability/freedom
5. Loss of pleasure
So is preventing access to temples "causing harm"? Remember that the reasoning here is irrelevant. Because if it is shown that preventing access to temples causes harm, then the reason doesn't matter.
And this is where the crux is. "There is no discrimination because there is no loss/harm caused" is untrue. If Tharoor thinks that preventing access to temples causes no harm, then I expect him to stick to the same stand when it comes to whether Dalits can be prevented from entering temples.
Tharoor argues that "women are barred out of respect for His wishes. These are questions of faith, not rationality and susceptible to emotion, not reason".
If people accuse me of "equating the Sabarimala practice to denial of access on grounds of caste", I accept the accusation, especially because your justification for the sabarimala practice on this ground is the same justification that casteists/apologists had to prevent the entry of Dalits into temples many years ago.
The caste system is not based on logic or reason, but there are caste hindus, who with all their faith and sincerely hold the view that Dalits should not be allowed into temples for whatever reason. It is a matter of faith for them. Does Tharoor's statement- "These are questions of faith, not rationality and susceptible to emotion, not reason" seem a valid justification for this?
It is saddening that some "progressive liberals" have identified the horrors of the caste system but do not apply their logic and reasoning when it comes to how we treat or look at women, and those who are non-binary.
Denial of access to temples leads to loss of freedom which is harm. Simple.
Further, various arguments were made in the Supreme Court and on social media that the bar is due to Ayyappa's status as a naishtika brahmachari and due to his vows and hence, there was no "disrespect to women". But all one has to do is see the interview of the priests of the temple to the media given last month when women activists were blocked from entering the temple. The priest clearly said that it was their belief that "menstruating women/women of menstruating age" must not enter. It is extremely obvious that this is the taboo that exists. Every thing else is just (dishonest) intellectualisation by those who know that this argument would not find favor.
And even if that is not the case- even if the status of Ayyappa being a naishtik brahmachari is the reasoning behind the bar, such a belief still causes harm by denying access to public spaces on equal footing leading to loss of freedom and hence, it does not go against the third principle to support entry of women inside the shrine. Justice Chandrachud, in the Supreme Court judgment spoke very rightly about "imposing the burden of a man's vows on a woman". That is unfair and cannot be allowed.
The last principle is "respect for democracy, and the rule of law that sustains it". My point is that respect for rule of law necessitates respect for Supreme Court decisions.
"Respect for democracy" does not mean majoritarian views must succeed all the time. Tharoor knows this all too well. If the belief of the majority is discriminatory, a democracy- especially one with a constitution like ours- will not or atleast, should not allow such views to survive.
Perhaps the most problematic statement that Tharoor made in his article is this one:
"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."
This is an extremely dangerous statement to make. The Constitution, especially the fundamental rights chapter exists so that those who do not find social acceptance are protected by the law. This is why the Court has been able to recognize live-in relationships, LGBTQIA+ rights, stand against casteism etc.
Fundamental Rights exist in our constitution to ensure that those who do not have social acceptance have the protection of the law. To say that constitutional principles itself must "pass the test of social acceptance" is hence, extremely dangerous. To add on "all the more so when they are applied to matters of faith" is unbelievable. Tharoor must know that this line of reasoning will be easily used by his largest political rivals to defend policies/views that they promote that Tharoor may be strongly against. And this reasoning would support such policies and views.
I do not completely disagree with Tharoor's article though. I agree with his views on how CPI(M) and the BJP have handled this issue (though I would not spare Tharoor's Congress Party as well). I also agree with him that Courts deciding what constitutes "essential religious practice" is problematic.
Courts cannot and should not do that. In my view, there is no necessity for an "essential practices test". Test all practices against the anvil of fundamental rights. Any practice that survives the fundamental rights test can be allowed and any practice, essential or not, must not be allowed to exist if it violates fundamental rights. The fact that a practice is extremely important to one religious group cannot be justification to allow violation of fundamental rights. That is the inherent flaw the essential feature test.
Tharoor also states:
"It is all very well to say that religions must adhere to the normal rules of liberal democracy, but the truth is they don’t. Gender equality is a vital principle in civic society and in political democracy, but it is by no means universally observed in the religious world. Muslim mosques don’t allow men and women to pray together in the same space. The Catholic Church does not permit female priests. Some Shinto monasteries are off-limits to women altogether. Eight Hindu temples in India do not allow men to enter during specified periods, and the Kumari Amman temple situated in Kanyakumari does not permit them at all. The law does not interfere in such matters. But in Sabarimala, it has chosen to."
I agree with him here too. Gender equality is no means universally observed in the religious world. This is where I'd like to remind Tharoor of the first principle he stated: Unconditional respect for the equality of men and women.
It is because of that unconditional respect must there be disdain for religious practices that do not respect equality. Catholic Churches must consider females on the same footing as males when appointing priests. All mosques must be open for entry of women and so must those Shinto monastries that Tharoor speaks of. Gender equality cannot be compromised.
What is interesting is that Tharoor says the law has "chosen to" interfere in Sabarimala but not the other issues. No. A PIL was filed forcing the law to look into these issues, and the law interfered. I sincerely hope similar petitions for throwing open mosques and monastries to women follow, or to ensure that women are considered on the same footing as men for appointment as priests also follows. I will fully support each and every one of those petitions.
And this is what concerns many believers. They believe that this judgment could lead to the Supreme Court interfering in every religious practice. This was also highlighted in the dissenting opinion of Justice Indu Malhotra in her portion on maintainability, unless I am mistaken. However, this is not a "concern" for me. I look forward to it. "Let justice be done, though the heavens fall" is the phrase. Justice must be done irrespective of the consequences and our commitment to justice cannot waver.
Tharoor ends his article thus:
This leaves instinctive liberals like me torn between our basic respect for gender equality and our democratic duty to respect the beliefs and wishes of our constituents. In religious matters, beliefs must prevail; in a pluralistic democracy, legal principles and cultural autonomy must both be respected. The Supreme Court has a chance to consider all these issues when it hears the review petitions on 13 November. Once it rules, we must all work co-operatively, in consultation with all stakeholders and with respect for the Constitution and the believers, to decide how to take this complex issue forward.
Saying "In religious matters, beliefs must prevail" would directly support multiple harmful and discriminatory practices in various religion. The Supreme Court has now agreed to hear the review petitions in detail in open court next year.
Here is sincerely hoping that Constitutional values do not fall prey to the threat posed by religious groups.
Tharoor also seems to have tweeted today that the Congress stands "unconditionally for equality but also firmly with the believers". Such (deliberate?) lack of clarity or failure to take a stance from a man of Shashi Tharoor's status is disappointing.
Dr. Tharoor, it is not the four principles you had stated at the beginning of your article that are in conflict with each other. It is the principle of equality and the faith of the believers. You cannot stand with both. It is surprising that you find no conflict in the latter and are somehow able to support both. That leaves me very confused.
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