A Harvard Law alumni, Megha Mehta, has a hilarious guest post on Gautam Bhatia's constipated law blog.
She asks-
to what extent should the State/judiciary intervene in religious/cultural practices to enforce ‘gender equality’/ ‘dignity’ for women?
The Legislature can intervene to any extent it wants on the grounds of public policy. The judiciary may say this conflicts with 'basic structure' but the Legislature can always change the Constitution.
In India, it is true, some little nuisance was caused by nutters bringing crazt PILs but the Bench has grown weary of that type of stupidity. A case in point was the Sabarimala case where some atheistic women demanded the right to pray to a deity who received male or elderly female worship. There was no public interest involved whatsoever. A ruckus was created. Time was wasted. Contempt for the Bench increased. It was obvious that the law is useless. Beat people to put your point across or keep quiet. That is the democratic way.
Whose version of ‘equality/dignity/’ should take precedence—that of the State or of women themselves?
Nobody gives a shit. In the Sabarimala case the Communists were willing to provide police protection to a few women but soon saw that the thing was silly. They were increasing the appeal of the Hindu religion while attempting to humiliate its adherents.
As for women, their big grievance remained that they find it difficult to use male urinals. Also, how come hubbies don't get pregnant and suffer agonies during childbirth? A constitutional bench must fundamentally change the human constitution.
This is important, given that the Court has parallelly set up a Constitution Bench to hear petitions challenging the practice of polygamy and nikah halala amongst Muslims.
The Bench is powerless. It will be increasingly ignored if it does stupid shit. Sooner or later it will adopt an expansive doctrine of political question. Otherwise it will continue to waste its time and become even more of a laughing stock.
I would argue that both the hijab controversy and the anti-polygamy/nikah halala petitions are direct outcomes of two previous Supreme Court precedents on the supposed ‘clash’ between gender equality and religious freedom:
The Bench was stupid enough to trespass on matters of public policy. It is now paying the price.
Shayara Bano v. Union of India ((2017) 9 SCC 1) (the triple talaq case)and Indian Young Lawyers’ Association v. State of Kerala ((2019) 11 SCC 1)(‘Sabarimala judgement’). In both cases, the Supreme Court has arguably fallen into the trap of setting up a ‘rights conflict’ between the right to equality and protection against gender discrimination versus the right to freedom of religious practice.
This could only be asserted if the relevant ratios explicitly stated that this was the case. Megha does not try to actually make any such argument. She says merely that the thing is 'arguable'. But 'arguable' by whom? Not a lawyer you would want to pay to fight a case on your behalf.
Moreover, in both cases the Court has sought to resolve this conflict by applying considerations of ERP, ‘morality’, and/or fundamental rights without centering the concerns of the women affected by the practice.
Megha must be aware that judgments are bound by law, not sympathy or concern for the unfortunate.
Therefore, Shayara Bano focused more on why triple talaq is theologically unsound under the ERP test, and the moral fault of the Muslim man, rather than the socio-economic context of why unilateral divorce disadvantages Muslim women.
The problem is that it may not do so at all. This is because 'Muslim women' is not a socio-economic context bound class. Why has Megha mentioned a consideration which can't arise for the type of class action suit under discussion? Has she learnt nothing at Harvard Law?
Indeed, the majority as well as the dissenting opinions referred to the Muslim woman in protectionist language, framing her as a victim of religious oppression.
In Megha's opinion. But what is that opinion worth? It is advantageous to a class for the Bench to view it as likely to be the victim of unconscionable practices or arrangements.
In the Sabarimala judgement, Dipak Misra CJI, in his opinion, authoritatively stated that “in the absence of any scriptural or textual evidence,” it cannot be concluded that excluding women from the Sabarimala temple is an “essential practice” of Hindu religion.
They may have been admitted previously. A similar point may be made about Hindu worship at the Gyanvapi mosque. But there is nothing authoritative about the Chief Justice's statement since it refers to matters of fact not law.
Rather, he commented that it is essential to Hindu religion to allow Hindu women entry to a temple, (See Sabarimala judgement, ¶122) affirming the idea that Hinduism has always been egalitarian
This is obiter dicta and false as a matter of fact.
. On the other hand, Nariman J. and D.Y. Chandrachud J. in their respective concurring opinions held that even assuming that exclusion of women is an essential religious practice, freedom of religion under Article 25 must yield to the fundamental guarantees of equality and non-discrimination under Part III of the Constitution. (¶196, 409) Interestingly, Chandrachud J. relied on Gautam Bhatia’s scholarship on the ‘anti-exclusion principle’ to argue that the ideal approach in adjudicating the constitutionality of religious practices should be to bypass the ERP test altogether. Instead, the question should be whether the impugned practice results in the exclusion of a group of citizens and thus violates the fundamental principles of dignity, liberty and equality. (¶220-221, 409) His opinion further held that the phrase “morality” in Article 25 is to be read as “constitutional morality” as defined in terms of the liberal values contained in the Constitution. (¶215-216)
This is reasonable only because it is obvious that Hindus of high status enjoying massive electoral support had framed that constitution and the manner in which it had been interpreted by successive Benches. However, this is irrelevant where a minority religion- that too of foreign origin- is concerned.
There has been sufficient critique of the ERP test so I will refrain from commenting on that aspect. From a feminist perspective, the ‘anti-exclusion’ principle appears to be a better approach as it avoids the pitfalls of the ERP test (judges acting as theologians, divergence in textual interpretation, promoting ‘Hinduism’ as a monolithic construct) and specifically focuses on whether a religious practice has the effect of denying civic equality to women.
Or men who may claim to be women and who may wish to enter female monastic orders or female toilet facilities etc. Also, such men- or goats- should not be excluded from the benefits of affirmative action that women might receive.
The 'anti-exclusion' principle is now opposed by the vast majority of feminists. The ERP test is more sensible. It can simply be pushed back such that the onus of proof is on the petitioner to prove some great harm has been caused to her and that undoing that harm would not impose an unreasonable burden on anybody else.
Notably, the anti-exclusion principle as developed by Bhatia, and Chandrachud J., shares similarities with philosopher Martha Nussbaum’s ‘capabilities approach.’
But 'capabilities' are unknowable. It is perfectly possible that suffering caused by reason of adherence to religion might not yield some much greater capability- perhaps in the next life. Indeed, religious people consider martyrdom a blessing.
Nussbaum has also argued, in relation to the Hindu Code Bill debates and the Supreme Court’s judgement in Shah Bano, that a religious practice ceases its claim to State deference when it infringes upon ‘shared moral understandings’ embodied in the form of constitutional rights.
But 'shared moral understandings' are a movable feast. Burning witches was once a religious duty for her people.
This particularly includes practices which stigmatize individuals on account of their sex.
But self-stigmatization would be an equal evil. Women should not claim to possess a gender because 'shared moral understandings' are that women are abject victims and wholly useless.
Chandrachud J.’s adoption of the anti-exclusion principle and his articulation of the Indian Constitution’s transformative potential is a powerful tool for checking the subordination of women by religious norms.
No it isn't. Having a loaded gun is a powerful tool for checking subordination or sodomization by a rapist. Quoting Chandrachud would be pointless.
However, there are some important nuances which are not expressly clarified by the judgement though they may be implied therein—who is the correct authority for making assessments about what constitutes ‘dignity’ and ‘exclusion’?
The Bench. Still, nobody may pay them a blind bit of notice. In Law, the Supreme Court has the final word. But that word may be a dead letter.
In the rest of her article, Megha gasses on about how women should have a voice in determining such things. But that voice should be directed at the legislature. The Courts can do little if their judgments are ignored.
Women aren't going to the Sabarimala temple. The Communist party has lost interest in the issue. Girls won't wear hijab inside Girl's College class-rooms (Islam forbids women from covering themselves in female only spaces) and everybody will turn against the PFI nutcases who put up this ridiculous case. Indeed, the PFI may be banned as SIMI was banned.
Megha ends on this absurdist note-
Till the time courts adopt an adequate intersectional feminist analytical framework,
in other words, 'till crazy feminist academics from the Eighties take over Society'
we are unlikely to find much satisfaction in judicial reasoning on the issue.
if we are crazy academic feminists. Judicial reasoning has to roll back on PIL based activism. It has to admit that rights are meaningless save in relation to incentive compatible remedies under a bond of law. The Bench can't itself provide those remedies if they are too costly or too fucked in the head. Judges have a choice- just as academics have a choice- between doing crazy shit and being ignored or trying to provide a useful service to Society. The alternative is disintermediation and, eventually, no pay-check.
By contrast to manic Megha, Nizamuddin Ahmad Siddiqi- whose first degree was from Aligarh and who is an Assistant Professor at Jindal- has a perfectly sensible article in Scroll on the hijab case. He says that the Bench needs to understand the traditions of a faith before it pronounces judgment. What he does not say is that this understanding is a requirement for justiciability to obtain. It would have been perfectly proper for Courts to refuse to entertain the petition (of the crazy girls who wanted to defy Islam (and common-sense) by wearing hijab inside the classroom of a girl's school) on the grounds that no secular court has any assurance of understanding of things of a sacred nature- more particularly if it concerns an alien faith.
The Supreme Court on September 22 finished hearing arguments in the case of the Karnataka hijab ban. The proceedings stemmed from multiple challenges to the decision of the Karnataka High Court which had upheld a government order barring the wearing of the hijab by female students in colleges and in schools in March. The Supreme Court has reserved its decision on the matter.
No. The Bench had refused an urgent hearing but has taken up the matter. I suppose they will get rid of 'Essential Religious Practice'. Meanwhile PFI offices have been raided and it looks as though that organization will be banned.
The question that the Supreme Court is dealing with may be loosely framed as follows: whether the wearing of the hijab could be allowed in public institutions, irrespective of the fact that these institutions prescribe a particular dress code or not.
Islam does not permit girls to veil themselves inside the classroom of a girl's college. The wider question is whether Islam permits girls to get an education. The Taliban appear to have very decided views on this.
Two notable interventions by the Supreme Court stand out so far – could a violation of the dress code be allowed, and can’t the hijab in a classroom be seen as a sign of social diversity?
Like saffron scarves.
Additionally, there have also been multiple mentions of the essential religious practices test, which seemingly might not find much ground in the present case. The test has received criticism from all quarters, especially for the notoriety it brings in the judicial verdict.
It can be reinterpreted in a rational manner. To show something is an essential practice for x, you must show that no member of x does not follow that practice. This case could be dismissed because there was, in fact, a Muslim High Court Judge who wasn't wearing hijab. Yet she was considered a Muslim. It may be that she did tawba for this every night because her sect considered hijab 'wajib'. But, under Islamic law she remained a Muslim even if such was not the case. A sinner is not an infidel. But one who expiates venial sins or transgressions, is not even a sinner. There is no question of apostasy. The plain fact is, many Muslim ladies do not consider hijab to be 'wajib'- i.e. obligatory, or an essential practice. at all by reason of ijma or consensus. This may be very long standing. Ibn Batuta had noticed that South Indian Muslim women were not observing hijab and purdah when he visited the place many centuries ago.
While it is true that the Supreme Court must not entertain interpretation of the religious texts, it remains equally relevant that it shows reverence to the tradition of the faith.
There is no such requirement. An atheist or a Muslim may serve on a Bench which considers matters appertaining to the Hindu faith.
I have argued earlier that the splitting of the religion into the binary of “faith” and “belief” might bring disastrous consequences,
Some Muslims brought and continue to bring disastrous consequences for many non-Muslims, many of whom, over the last two decades, have expended blood and treasure so as to inflict disastrous consequences on Muslims. This has nothing to do with any binary. It has to do with butchery. Beliefs are epistemic and defeasible. Faith isn't.
especially for the religions which are inherently communitarian.
or genocidal.
Islam is a public religion.
So is Hinduism.
The proclamation of faith is in itself a public act.
As is the killing of kaffirs who retaliate equally publicly- if they are able to do so.
A mere belief in the unity of god and the message of the Prophet is not sufficient. It needs to be proclaimed so as to have an outward projection of that faith.
What is sauce for the goose is sauce for the gander. Non-Muslims may want to play music outside mosques to spread their own creed.
In essence, therefore, Islam is a religion of both memory and action.
Unless it is wiped out before it can wipe out its rivals.
The belief and the faith must both coincide to bring out the Muslim identity.
This may involve hijrat or emigration.
All forms of religious obligatory worship testify to this method – shahadat (proclamation of faith), namaz (congregational prayer), zakaat (charity to the poor), roza (month-long fasting) and haj (annual pilgrimage). The individual aspect of namaz, especially, is seen as an exception to its communitarian value, within the larger corpus of the religious tradition.
All this is equally true of any other religion. Even the notion of a 'farz e kifayya' or collective obligation of Jihad was not unique to Islam though, no doubt, other religions have changed in this respect.
The Muslim faith gives rise to a Muslim identity that is public.
As does the Hindu faith. Furthermore, killing Muslims has enabled the Hindu faith to persist in India. On the other hand, such killing tends to decline as 'public identities' become secular.
To claim that this is a radical argument is unwarranted, for all the other religious identities are celebrated in public space too. Religions are both lived and celebrated through rituals that are symbolic of the communitarian identity. The religious identity is manifested in individual actions but gains its meaning through the tradition of the faith and its practice.
If that be the case, which is also the Indian situation, the public space can never be devoid of religion.
But, as in the Pakistani situation, the public space can be devoid of a particular minority which may have existed in substantial numbers previously.
It can remain “secular” as long as it allows the social manifestations of this diversity among the religious identities.
Or it can do ethnic cleansing while remaining secular like Turkey or Pakistan in its first two decades.
In its political manifestation, the public space can always avoid any attachment with the religion
Only if parties with names like 'Muslim League' are banned. But there is a Kerala Muslim League.
. However, it does not mean that every social action must be viewed from political lens.
Sadly, this is not the view of certain ideologies which are at war with the Indian state.
The question of individual appreciation and adherence to a religious tradition remains another essential component of the debate. To what extent my practice of the faith gives meaning to its tradition is an important question.
It does so only in a purely subjective and idiosyncratic fashion. Islam is not solipsistic. It is the command of the Creator, and nothing else, which gives meaning to the creature's practice of his Faith. To hold otherwise is shirk. Reason is itself the creation of the best of Creators. It is not a separate deity or hypostasis.
In its usual context, the religion is dictated by an individual’s preferences, context and the meaning she outlines for her religious belief system.
This is not true. The Pope's Catholicism is not dictated by the Pope's individual preferences. Some pimp claiming to be Catholic may hold a different view. But that pimp's views are rejected by Courts of Law.
However, that understanding in no sense gives rise to a communitarian value
It may do. Among the Usuli, a 'marja' may set an example or exercise ijtihad and this can become a communitarian value. Even otherwise, one could say that there is 'ijma' or consensus that a particular individual set the proper example or gave the correct judgment. In all protocol bound juristic systems (which are 'buck-stopped' but defeasible' some individual or set of individuals originate 'communitarian values'.
which the religious adherents search for collectively in any faith tradition.
This is false. In every faith tradition, there are specific individuals or sets of individuals who establish the goals which motivate the spiritual search and moral endeavors of the faithful.
This means that the expression of faith may hold value for an individual in one instance but may not hold any ground as part of the tradition.
In which case the thing is supererogatory. The individual may have a Hohfeldian immunity in this respect but, in some other context, another individual may have a superior right. I am permitted to wear a Spiderman costume as part of my Faith when I'm at home. I'm not allowed to do so on my employer's premises. He has a superior right.
In such instances, the practice of the individual may be allowed as part of her freedom of expression,
No. All that matters is whether the individual has a Hohfeldian immunity. I'm allowed to wear a Spiderman costume at home not because I happen to believe that Peter Parker is God but because I can wear what I like under my own roof.
but may not hold any projection for the profession of faith, as understood collectively.
Or it may do. If Legislators and Judges are stupid they may create a loophole permitting a nuisance by according a higher status to some supposed 'fundamental human right' of a vacuous sort. However, the Bench can roll this back. The nuisance can be curbed.
The individual praxis of religiosity without doubt remains an essential criterion to understand the religious faith.
No it doesn't- unless you are a Social Psychologist or Cultural Anthropologist engaged in a specific type of research. This has, or ought to have, no connection with the law.
However, in instance where the faith by its very definition is communitarian, personal choices of individuals cannot define its religious boundaries. The faith must always be appreciated through its tradition.
In which case it can also be condemned and extirpated because of those traditions.
When the Indian Constitution talks about the collective life of its people, it brings out an important element of togetherness through fraternity.
Which means brotherhood.
The concept is a loaded one –
It is a simple one. Brothers are bound together by blood. They must stand together despite differences in preferences or piety.
while it envisages the collective constitutional identity for all of us, it also argues for the celebration of a social fabric with all its diversity intact.
No. Brothers aren't genetically diverse. They may have grown apart by reason of different life-styles or modes of thinking but, if the State is to promote Fraternity, it must reduce that diversity. Thus Mummy says 'darling, don't wear Spiderman costume. See, your brother is also coming for the festival celebration. He is a big lawyer. He wears suit and tie. It will be embarrassing for him if you don't at least wear shirt and trousers. Why not, just for today, forget about Spiderman and concentrate on celebrating this festival in a befitting manner?'
Essentially, it also encompasses a bigger ideal – that our common public space may not always be political.
They should never be political save at specific times and for specific times as laid down by law.
The social must in all senses define our togetherness and for that to happen, the celebration of diversity in public space is essential.
But fraternity is not diversity. It is based on common descent and common habitus. India got rid of the Brits because it didn't want diversity. It wanted unity. Partition occurred for the same reason. The Law has not been able to prevent ethnic cleansing on the basis of religion. Blind faith in liberal pieties are a luxury nobody can afford. In particular, Europe and America may very quickly go back to their bad old ways. What Hitler did to the Jews may be repeated with Muslims and Hindus and Sikhs- but also Christians of the wrong color- having to flee or else end up loaded on to cattle trucks.
The identity of religion is just one of its forms. This is the lesson that the court, while delivering the hijab verdict, must also take home.
The Court can do stupid shite. It will be ignored and increasingly disintermediated. Meanwhile, if the Government does not crack down on the nutters, mobs will. Hopefully, India can avoid unprovoked majoritarian violence (save in Muslim or Christian or Sikh majority areas) but economic growth is essential for that 'thing with feathers' to sustain itself in the air.
The Law is simply a service industry. If it does not promote commerce and widening prosperity, it will be disintermediated. Sadly, Indian legal scholars are ignorant of the Coase/Posner Law & Econ tradition. Thus they add noise to signal and represent a potent source of mischief to the commonweal.
