Thin line between protecting a faith and guarding a custom of unclear origin

In the popular American game of baseball with three strikes, you are out! The three strikes rule is applied in American criminal law with mandatory incarceration for life of a person convicted of a third
felony. The triple Talaq rule has similarly dire consequences for Muslim women — until the Allahabad High Court, looking aghast at the custom, struck it down. It thereby stirred a hornet’s nest, with clerics and the orthodox shouting from the pulpits that the judgment was an affront to their religious beliefs and a violation of their personal laws.

After all, does not the Constitution guarantee freedom of religion — a cardinal requirement of a secular state?

The answer to this objection is traced to the Constitution itself. The most basic of rights in a free and democratic society is that of equality before the laws and protection against any kind of discrimination, foremost based on gender. The added justification is that with the framing of the Constitution all claims contrary to its basic structure, guarantees, and principles would have to take a backseat — regardless of whether they are traced to religious or personal laws, traditions or customs.

The demand for gender equality has spread to women claiming an equal right to access places of religious worship. This demand found favour with the courts with the Bombay High Court mandating that Muslim women could freely access Haji Ali, a direction that the Supreme Court declined to interfere with. Again, voices rose in protest. While marriage and divorce may trace to customary and personal laws, would this not directly infringe religious beliefs?

Any murmur that these decisions targeted a particular religion was quelled by a reminder of the Sabarimala controversy presently raging in the Supreme Court. The Hindu priests and “protectors” of Lord Ayyappa’s purity, were affronted by the government of Kerala permitting women to access the sanctum sanctorum. But their dismay does not appear to be finding much favour in the Supreme Court with the court’s searching question on how barring women can be traced to any religious scripture to found a claim of freedom of religious belief.

The recent refusal of a stay by the Kerala High Court to the diktat that women necessarily wear a shawl or other covering before entering the temple is considered by advocates of gender equality to be a retrograde step. But there is a difference.

The right to access a place of religious worship can certainly carry with it a respect for requiring a particular attire — however modest it may appear to the modern and the bold. After all, every
man entering the Guruvayur temple is required to be bare chested. A rule applied equally to all — even former president R Venkataraman was denied access to the immediate presence of the idol since his state security refused to permit the removal of his shirt and bulletproof protection. Various other religions require a customary attire when entering a place of worship and that is
something that cannot be faulted.

There is indeed a thin line between protecting religious faith and guarding a custom that has its basis in some unclear origin in the annals of time. The latter does not deserve the constitutional protection of freedom of religion, however, antiquated the custom may be.

However, where it infringes one’s religious faith the constitutional protection steps in. While there is a clear distinction in the manner in which the two situations are treated, the problem arises in the actual identification as to which is which. The answer would be to look to the scriptures — the holy books that are treated as the embodiment of the religion. If found in the scriptures, they would be matters of religious faith deserving constitutional protection.

If not they must yield! But then, what if a practice traces itself to the scripture itself but yet violates
the rights guaranteed as fair and correct in the modern world. It is here that the Constitution would reign supreme.

Any citizen who chooses to live in a country governed by its constitution is bound by its commandments. The Constitution is itself the scripture of a democracy and more so of a secular one. Religious tenets tracing back to the scriptures would have to give way to constitutional commandments if inconsistent. A religious practice contrary to the right of equality must give way.

Either the practice would have to be interpreted as not an essence of the religion and, therefore, not constitutionally protected, or even if essential, yielding to the constitutional mandate. After all, is that not the essence of secularism? That every person has a right to practice his religious faith with no faith considered superior
to the other and in turn not one of the religious faiths superior to the Constitution.

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