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Menaka Guruswamy dreams of a ‘complete freedom’

As long as there's discrimination on the basis of gender, faith, caste or anything else, the promise of the Constitution will remain unfulfilled

Guruswamy recently argued before a Constitution bench of the Supreme Court that Section 377 is arbitrary and unreasonable, and should be struck off the Indian Penal Code. Photo: Pradeep Gaur/Mint
Guruswamy recently argued before a Constitution bench of the Supreme Court that Section 377 is arbitrary and unreasonable, and should be struck off the Indian Penal Code. Photo: Pradeep Gaur/Mint

Seventy-one years ago, India won her independence from colonial rule. 15 August 1947 would mark the day that Indians were no longer subjects of the British Raj. But a truer freedom would be heralded later, when, on 26 January 1950, “We the People" would adopt our Constitution. This constitutional compact would forever set up each of us as citizens of an equal freedom; defined by equality, dignity, fraternity and prohibition of discrimination on grounds of caste, sex and religion. This would be the marker of our Indian citizenship.

However, such a truer freedom is still unattainable for many, including the Constitution’s most revered position holders. On 18 March, President Ram Nath Kovind and his wife Savita visited the Jagannath Temple to offer prayers. A multitude of newspapers reported that on 19 March, Rashtrapathi Bhavan sent a note of protest to Puri district collector Aravind Agarwal, asking for an inquiry into specific actions by servitors, or the hereditary priests of the temple.

The destruction of the Babri Masjid in 1992 unleashed a long cycle of violence that still reverberates today.

The Rashtrapati Bhavan note detailed that the president and his wife were harassed, with the president being blocked and his wife being shoved by the servitors. Officials of Rashtrapati Bhavan deny filing any note of protest, or that the incident as described took place. Interestingly, the temple management says the matter is being investigated, as per many reports.

Temple entry satyagraha, as has been discussed in Eleanor Zelliot’s book Ambedkar’s World, has a long history of struggle from pre-independence India. What has spurred belief in the allegations is the earlier conduct of the servitors of Puri. In the past, they denied entry to then prime minister Indira Gandhi, on the ground that she was married to a non-Hindu. Indira Gandhi’s husband was a Parsi. Further, A.K. Biswas writes in Mainstream Weekly, published on 22 July 2017, that B.R. Ambedkar visited Puri in 1945, accompanied by the last British viceroy, Lord Mountbatten. While Mountbatten was accorded a red carpet welcome, Ambedkar was denied entry. Biswas also notes that Madhu Dandavate, Union railway minister under Morarji Desai and finance minister under V.P. Singh, deposed to this effect before the Mandal Commission.

Ambedkar, the chairman of the Constitution’s drafting committee, and President Kovind, both lawyers, were born Dalit. Ambedkar was prevented from entering the temple because of his caste. Yet there was no legal remedy against such bigotry in colonial India. What has changed since is that such conduct can now be prosecuted under the Scheduled Caste, Scheduled Tribes Atrocities Act, 1989, and that the Constitution takes a firm stand against the practice of untouchability.

However, discrimination continues across places of worship. The high priests of all religions in India have ensured that women have not been able to offer prayers—whether with men in mosques or by accessing the inner sanctum of temples.

Therefore, it is of some significance that the Supreme Court is hearing a case that has a great bearing on the exercise of a truer freedom of the variety the Constitution expects. A Constitution bench of the court has just finished hearing a challenge to proscription of women aged 10-50 from entry into the Sabarimala temple in Kerala since they are presumed to be of menstruating age.

Petitioners and parties impleaded that such a prohibition is facilitated by Section 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965. These state that women who are not by custom and usage allowed to enter a place of public worship shall not be entitled to enter or offer worship in any place of public worship. The Sabarimala management relies on it to bar the entry of women. Therefore, it is contended that this provision violates the rights to equality, life, liberty, non-discrimination and religious freedom of women devotees, and that constitutional protection for the management of the affairs of institutions established for religious purposes does not permit such discrimination.

Whereas the exclusionary practices of the managements of Jagannath and Sabarimala should trigger the imposition of a constitutional morality over any brand of societal or religious morality, these are not the only tales of an unconstitutional imposition on freedom that we should worry about. For, before the Supreme Court this term is the most ferocious of all temple cases—that which concerns the building of the Ram temple, or the demolition of the Babri Masjid in Uttar Pradesh. And this is where the use of a temple as a tool to exclude the “other" is brought home. The proscriptions in Puri and Sabarimala are used to exclude Dalits and Hindu women, to demonstrate the power of an older Hindu order, of upper-caste men. The “Ram temple" quest is used to otherize and exclude Muslim citizens.

That many of the BJP have sought to make the building of this temple a core political issue is what makes this case before the Supreme Court important. For what is at stake is not simply the hegemonic nature of the building of one religious institution on the carcass of the other. What is at stake is the constitutional mandate of the equality of all citizens irrespective of religion and faith. This was the full citizenship that the Constitution envisaged and that We the People came together to found.

The Supreme Court has reserved its judgement on whether the Ram temple case should be referred to a Constitution bench. Should such a referral go through, it would make clear in fact that the case implicates the essence of our constitutional order. But, on the eve of India’s 71st birthday, this question concerning the building of a temple over the debris of a mosque is not a simple property dispute. It implicates the nature of India’s independence in 1947. For independence is quite different from freedom.

A free nation is one where all sections of its citizens live without fear and exclusion. It’s not simply our highest constitutional office holder, our president, who must be treated with respect in Puri. Or menstruating women barred from offering prayers. It is also that no religious institution must be used to disenfranchise a section of Indian society, whether over a temple in Ayodhya or by one in Puri or another in Sabarimala. When we hold firm in all three cases, then we will have a more complete freedom in India. Till then, we will only commemorate our independence, not our collective freedom.

Menaka Guruswamy practises law before the Supreme Court. She is also BR Ambedkar research scholar and visiting lecturer in law at the Columbia Law School.

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