An impasse of debatable rights
K Raveendran discusses the cost of enforcing the individual right of a few activists by hurting the religious sentiments of a multitude of people
Millions of Ayyappa devotees across the world are waiting with bated breath for the Supreme Court to resume consideration of the 65-odd review petitions on the vexed issue of women's entry to Sabarimala. The week's time allowed by CJI Ranjan Gogoi heading the reconstituted 5-member bench hearing the petitions to make further written submissions has expired and now the court is expected to take up further proceedings any time soon.
That the court decided to hear the counsels in an open court has been seen as a very positive development since review petitions are mostly heard in the chamber of judges and disposed of there itself. But repeated reminders by the CJI while hearing the counsels on February 6 during a marathon session not to repeat points and raise only problems with the judgment delivered by the constitutional bench on September 28, allowing the entry of women belonging to the restricted category to the temple, did cause disquiet among the devotees. That is why the extension of time for further written submissions was deemed so important.
Optimism by the devotees has been bolstered by the realisation that there have been serious gaps in the understanding of the court regarding finer aspects of the Sabarimala issue, which prompted the court to issue the controversial verdict. But the blame for this cannot be put at doors of the court because it only goes by what is presented before it. There has been a clear failure on the part of the main respondents, whether the Devaswom Board in charge of administering the Sabarimala temple, or the Kerala government, to bring to the court's attention unique characteristics of Sabarimala, which would have made the famous hill shrine eligible for a special status and as such exemption from the general rule.
The approaches of the board and the state government during the open court hearing as well as in the written submissions clearly establish that this failure was not by default but by design. The communist government of Kerala has, in fact, been trying to implement the party line of no faith in God rather than safeguarding the interests of devotees on the pretext of enforcing the Supreme Court verdict, which was basically declaratory in nature and did not set any specific time frame for implementation. Instead of taking a neutral position, the state government opted to settle the issue for posterity, overlooking the fact that it clearly lacked the mandate to do so in view of the peculiar political system in the state where ruling fronts alternate terms almost religiously.
A most vital point that still has not adequately been brought before the court is the massive post-verdict conflict that has overwhelmed the Kerala society, forcing a deep division, often accompanied by violence and law & order problems. The tactless assertions by the state government, particularly the Chief Minister, that the court order would be implemented at any cost only led to the confrontation getting aggravated. It is true that the disturbing social tension over the entry of women has consumed tonnes of newsprint and hours of prime time air coverage on the national media. But courts do not go by media reports and are guided by what is brought to its attention. It is doubtful if this aspect has been adequately represented before the judges even during the marathon hearing or the extended period for written submissions.
That the overwhelming majority of women did not want the right to pray at Sabarimala before they became eligible in the normal course is proved by the fact that not a single genuine woman devotee turned up to visit the temple. All those who came were activists, who wanted to enforce their newly-gained right or unsuspecting women pilgrims from outside the state who came as part of a pilgrimage tour and willingly turned back on realising the controversy.
The state government has sought to claim that a lot of women have entered and even suffered a public relations fiasco by producing a list with fictitious names, which the court, in its wisdom, refused to consider as relevant. Overall, a total of fewer than 15 women turned up demanding to undertake the trek and it cost the exchequer crores of rupees to provide them security, which had to be paid for by the devotees. It meant that the devotees, by virtue of being an overwhelming majority, were footing the bill for enforcing the right of a minuscule number, which actually amounted to grievously hurting their own religious sentiments. This raises the question of the cost of enforcing the individual right of a few activists by hurting the individual rights of a multitude of people, and to add insult to injury, asking them to pay for letting the few violate the rights of the huge majority.
Sabarimala has witnessed such massive security detailing all along the course of the pilgrimage, with some 5,000 security personnel, including armed commandos in the precincts of the temple, which by itself is a sacrilegious act. Sabarimala now looks like a war zone – armed commandos stationed all over the place – instead of the sacred temple that it used to be. Curbs have been put even on media coverage, drawing parallel to an Emergency-like situation.
This brings up the cost of enforcing individual rights of a handful of women by sacrificing the individual rights of a multitude. When there is a conflict between the individual right and the collective right, the cost of upholding that right in comparison to the benefit to the group as constituted by individual members must be taken into account. Sacrificing the individual right of millions of devotees for the sake of enforcing the right of a handful of individual women, who can by no stretch of imagination be called devotees, is an issue that needs to engage the court's attention if the impasse is to be resolved to any degree of satisfaction.
(The views expressed are strictly personal)
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