Temple entry for women : Gender Equality v/s Religious Freedom

Temple entry for women : Gender Equality v/s Religious Freedom

State control over Temples

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 25 and 26

Mains level : Paper 2- Evolution of rights-bases jurisprudence

Context

On August 14, 2021, the Tamil Nadu government appointed 24 trained archakas (priests) in temples across the State. In the weeks since, a series of writ petitions have been filed before the Madras High Court assailing these appointments.

Administration of  Hindu temples in Tamil Nadu by government and challenges to it

  • The Hindu Religious and Charitable Endowments (HR&CE), 1959, is the governing law on the administration of Hindu temples and religious institutions.
  • In 1971, Section 55 of the HR&CE Act was amended to abolish hereditary priesthood.
  • Removal of caste-based discrimination: In 2006, the amendment provided for the appointment of sufficiently trained Hindus irrespective of their caste as archakas to Hindu temples by the government.
  • Challenges in the Court: Challenges to both amendments were taken to the Supreme Court, which upheld the law, as amended.
  •  In Seshammal v. Union (1972), the Supreme Court observed that the amendment to the HR&CE Act abolishing hereditary priesthood did not mean that the government intended to bring about any “change in the rituals and ceremonies”.
  • Constitutional legitimacy: In Adi Saiva Sivachariyargal v. Govt. of Tamil Nadu (2015), the Supreme Court observed that “the constitutional legitimacy, naturally, must supersede all religious beliefs or practices”.
  • The Court further went on to state that appointments should be tested on a case-by-case basis and any appointment that is not in line with the Agamas will be against the constitutional freedoms enshrined under Articles 25 and 26 of the Constitution.

Judicial balancing of the various rights by the Supreme Court

  • In Indian Young Lawyers’ Association v. State of Kerala (the Sabarimala case) and Joseph Shine v. Union of India (2018), the Supreme Court reiterated the need to eliminate “historical discrimination which has pervaded certain identities”’, “systemic discrimination against disadvantaged groups”.
  • In these cases the Supreme Court rejected stereotypical notions used to justify such discrimination.
  • In all these cases, the Court prioritised judicial balancing of various constitutional rights.
  • The constitutional order of priority: In the Sabarimala case, it held that “in the constitutional order of priorities, the individual right to the freedom of religion was not intended to prevail over but was subject to the overriding constitutional postulates of equality, liberty and personal freedoms recognised in the other provisions of Part III”.

Way forward

  • Building on the Sabrimala case: The constitutional courts will now be called upon to build on the gains of the Sabarimala case when it comes to administration of temples, insofar as it concerns matters that are not essentially religious.
  • Dealing with the gender bias: The Supreme Court, in Navtej Singh Johar v. Union of India (2018), interpreted Article 15 as being wide, progressive and intersectional.
  • Today, while most of the debate is around whether men from all caste groups can become archakas, we have failed to recognise the gender bias inherent in these discussions.

Consider the question “We have been witnessing the evolution of rights-based jurisprudence in the various judgements of the Supreme Court. This will help to eliminate “systemic discrimination against disadvantaged groups”, and reject stereotypical notions used to justify such discrimination. Comment.”

Conclusion

At once, caste orthodoxy and patriarchy entrenched within the realm of the HR&CE Act can be eliminated and supplanted with a vision of a just, equal and dignified society.

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By Dr V

Doctor by Training | AIIMSONIAN | Factually correct, Politically not so much | Opinionated? Yes!

Temple entry for women : Gender Equality v/s Religious Freedom

Padmanabhaswamy Temple Verdict by the Supreme Court

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Managing religious institutions in India, Devsom Boards etc.

Reversing the 2011 Kerala High Court decision, the Supreme Court upheld the right of the Travancore royal family to manage the property of deity at Sree Padmanabha Swamy Temple in Thiruvananthapuram.

Try this question from CSP 2016:

Q.In the context of the history of India, consider the following pairs

Term              Description
1.  Eripatti Land, revenue from which was set apart for the maintenance of the village tank
2. Taniyurs Villages donated to a single Brahmin or a group of Brahmins
3. Ghatikas Colleges generally attached to the temples

Which of the pairs given above is/are correctly matched?

a) 1 and 2

b) 3 only

c) 2 and 3

d) 1 and 3

What did the apex Court say?

  • The court said that as per customary law, the shebait rights (right to manage the financial affairs of the deity) survive with the members of the family even after the death of the last ruler.
  • The ruling ends the legal battle the temple and members of the royal family have fought with the government for decades over control of one of the richest temples in the world.

What is the case about?

  • The central legal question was whether the heirs of the last Ruler of Travancore could claim to be the “Ruler of Travancore” after the death of the ruler in 1991.
  • The court examined this claim within the limited meaning of that term according to the Travancore-Cochin Hindu Religious Institutions Act, 1950 to claim ownership, control and management of the ancient Temple.

Earlier cases of ownership: A background

  • All the temples which were under the control and management of the erstwhile Princely States of Travancore and Cochin were under the control of the Travancore and Cochin Devaswom Boards before 1947.
  • However, as per the Instrument of Accession signed, since 1949, the administration of the Padmanabhaswamy Temple was “vested in trust” in the Ruler of Travancore.
  • The state of Kerala was carved out in 1956 but the temple continued to be managed by the erstwhile royals.

The legal battle

  • In 1971, privy purses to the former royals were abolished through a constitutional amendment stripping their entitlements and privileges.
  • The move was upheld in court in 1993 and the last ruler of Travancore who died during the pendency of this case continued to manage the affairs of the temple till then.
  • In 1991, when the last ruler’s brother took over the temple management, it created a furore among devotees who moved the courts leading to a long-drawn legal battle.

Is the temple the property of the royal family?

  • The character of the temple was always recognised as a public institution governed by a statute.
  • The argument of the royal family is that the temple management would vest with them for perpetuity, as per custom.
  • Even though the last ruler executed a detailed will bequeathing his personal properties, he had not included the Sree Padmanabhaswamy Temple as his personal property or dealt with it in his will.

What about the treasure in the vaults?

  • A consequence of who has administrative rights over the temple is whether the vaults of the temple will be opened.
  • In 2007, the heir claimed that the treasures of the temple were the family property of the royals.
  • Several suits were filed objecting to this claim and a lower court in Kerala passed an injunction against the opening of the vaults.
  • The Kerala High Court in the 2011 ruling passed an order that a board be constituted to manage the affairs of the temple, ruling against the royal family.

What impact would this ruling have?

  • Since 2011, the process of opening the vaults has led to the discovery of treasures within the Padmanabhaswamy temple, prompting a debate on who owns temple property and how it should be regulated.
  • Despite being a secular country that separates religion from the affairs of the state, Hindu temples, its assets are governed through statutory laws and boards heavily controlled by state governments.
  • This system came into being mainly through the development of a legal framework to outlaw untouchability by treating temples as public land; it has resulted in many legal battles.

By Dr V

Doctor by Training | AIIMSONIAN | Factually correct, Politically not so much | Opinionated? Yes!

Temple entry for women : Gender Equality v/s Religious Freedom

[op-ed snap] The warp and weft of religious liberty

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much.

Mains level : Paper 2- Indian Constitution's approach to secularism.

Context

While extending the scope and extent of the freedom of religion, the SC would face the difficult question of balancing it with the other provisions and rights enshrined in the Constitution.

What the 9-Judge bench will deliberate on?

  • The establishment of the Bench emanated out of an order of reference made on review petitions filed against the Sabarimala judgment.
  • The scope and extent of religious liberty: It will answer a series of wide-ranging questions and expound the scope and extent of the Constitution’s religious liberty clauses.
  • It will also deliberate on cases including the practice of female genital mutilation and the rights of Parsi women to enter fire temples.

The question of balance

  • Within the Constitution of India, there are two impulses that may, at times, come into conflict with one another.
  • First impulse-Religious freedom: India is a pluralist and diverse nation, where groups and communities — whether religious or cultural — have always played an important role in society.
    • Religious freedom: Following up on this impulse, the Constitution recognises both the freedom of religion as an individual right (Article 25), as well as the right of religious denominations to manage their own affairs in matters of religion (Article 26).
  • The second impulse-Protection of an individual: The second impulse, recognises that while the community can be a source of solidarity at the best of times, it can also be a terrain of oppression and exclusion.
    • So, both Articles 25 and 26 are subject to public order, morality, and health.
    • Article 25 is also subject to other fundamental rights guaranteed by the Constitution, and to the state’s power to bring in social reform laws.

Finding the middle ground

  • The middle ground involves respecting and balancing the following-
    • The autonomy of communities: It involves respecting the autonomy of cultural and religious communities.
    • Individual rights: It involves ensuring that individual rights are not entirely sacrificed at the altar of the community.
  • Essential practice doctrine: Over the years, the Supreme Court has found the middle ground by carving out a jurisprudence that virtually allows it to sit in theological judgments.
    • What is constitutionally protected? It recognising that it is only those practices that are “essential” to religion that enjoys constitutional protection.
    • Any other ritual is seen as secular and amenable to the state’s interference.
    • This doctrine was used to rule, in 2004, that the performance of the Tandava dance was not an essential tenet of the religious faith of the Ananda Margis.
    • The SC said that the “essential religious practices” test is indeed the only way it can reconcile the two impulses.

Anti-exclusion principle

  • What are the options with the SC?
    • Continue with the “essential practice” doctrine: One option before the nine-judge Bench would simply be to affirm existing jurisprudence, as it stands.
    • Anti-exclusion principle: The second option would be to ask whether the effect of the disputed religious practice is to cause harm to individual rights.
    • The enquiry, thus, is not whether the practice is truly religious, but whether its effect is to subordinate, exclude, or otherwise send a signal that one set of members is entitled to lesser respect and concern than others.
    • In Sabrimala case — both the concurring opinion of Justice D.Y. Chandrachud and the dissenting opinion of Justice Indu Malhotra agreed that this ought to be the test.
  • Protection of dissenters
    • Top-down nature: Many religious communities, norms, and practices are shaped and imposed from above, by community leaders, and then enforced with the force of social sanction.
    • Dissenters are then faced with an impossible choice: Either comply with discriminatory practices or make a painful exit from the community.
    • Judicial intervention: It is here that the Constitution can help by ensuring that the oppressed and excluded among communities can call upon the Court for aid.

Conclusion

  • The nine-judge Bench will face a difficult and delicate task of constitutional interpretation. Much will ride upon its decision: the rights of women in particular and of many other vulnerable groups in general.
  • Also will depend on its decision the constitutional vision of ensuring a life of dignity and equality to all, both in the public sphere and in the sphere of community.

By Dr V

Doctor by Training | AIIMSONIAN | Factually correct, Politically not so much | Opinionated? Yes!

By Dr V

Doctor by Training | AIIMSONIAN | Factually correct, Politically not so much | Opinionated? Yes!

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