The Sabarimala verdict is not surprising. It is a reflection of the times we live in and the values we live by. The verdict truly imbibes the zeitgeist of modern India, a once-colonised nation now blinded by the shiny veneer of modernity and ever-so-eager to lose what it has learned to call the baggage of a savage past. Tragically, the Indian state ends up compulsively toeing the prejudiced line that a stiff-upper-lipped zealot from a bygone era had cunningly drawn to the chagrin of our wise but helpless ancestors.

There is nothing much to ponder on as far as the judgement goes as its purport can be effortlessly gleaned from watching a random shouting match on a TV news channel, where a one-hour session pretty much exhausts the stock of the favourite buzzwords of the exemplars of India’s public morality. It is no exaggeration to say that equality, secularism, tolerance and maybe a dozen more words define the limits of the conceptual universe of the progressive Indian. It is a script done to death every night and faithfully resurrected the next morning.

Let us take a break from the predictable and dull rhetoric of the Indian intelligentsia and try to comprehend what the verdict means to the traditional worshippers of Lord Ayyappa, the very people whose devotion has kept the sanctity of the shrine intact. But this begs the question – what is sanctity after all? Is there anything in life that lies beyond the realm of rationality? What is the connection between rational thought and language? And can the human tongue capture even a small fraction of the infinite expressions of the Universe, that which we call reality?

The meaning of justice

Justice comprises of distributing things of value, tangible and intangible, in such a way that every member of society gets their due. Ideally, justice must not just be delivered but it must be seen to have been delivered, that is, all parties must feel deep down that they have got what they deserved. In isolated legal battles, this may arguably be the norm but in societal matters, true justice is clearly unachievable. It is an ideal, something that must always be pursued even while realizing that it will never be achieved.

Different societies in the course of their histories have defined justice in different ways. In the globalised world order of today, dominated by theories originating in the cultural milieu of 18^th century Europe, there are three major ways to approach the concept of justice: welfare, freedom and virtue. Given that it is impossible for justice to be delivered to every single living being, the welfare school makes it about maximizing the happiness of the society as a whole. This is at odds with the freedom camp, which concerns itself with the freedom and liberty of the individual thereby leading to the inevitable conflict of my right versus yours. And finally, there are those who believe that justice must serve the function of promoting a good and virtuous life, deriving that definition from another set of assumptions about what it means to be alive.

The Sabarimala verdict has limited itself to exploring justice purely in the framework of individual freedom, which seems to be the preferred approach of the Indian judiciary on most matters of social relevance. It must be noted that there are some cases where maximizing happiness is the explicit rationale provided in the judgement but this usually comes into play when there is no conflict with anyone’s individual rights. There have also been times when the judiciary has disallowed petitions or the government has imposed serious restrictions on free speech to uphold the freedom of religion of a particular group or in the interest of social harmony.

My right vs yours

Freedom and liberty of the individual being the focus of our justice system, situations of conflicting rights are commonplace. When a conflict has a bearing on the lives of a large number of people, as in the case of a Public Interest Litigation (PIL), the courts are required to take a call about which set of rights is more ‘fundamental’ and therefore, worthier of being protected. Accordingly, some rights are more important than others because other rights are, in fact, dependent on them. To drive home the point, if people are not physically safe, then all other rights become irrelevant. Further, those rights that do not overlap or interfere with another person’s identical rights are treated as more important than others. By this logic, the presence of a woman inside a temple is not in conflict with the presence of other men and women and therefore, her right to enter is inviolable.

This, as you may already know, is the broad reasoning that the five-judge constitution bench followed while delivering the Sabarimala verdict, striking down with a 4:1 vote the centuries-old tradition that banned the entry of women of menstruating age inside the temple. As Justice Nariman stated in the court proceedings,

“Rules disallowing women in Sabarimala are unconstitutional and violative of Article 21.”

But was the traditional rule at Sabarimala motivated by the intent to deny personal liberty to women devotees? Women devotees of Ayyappa who intervened in the petition don’t think so. Interestingly, the only dissenting voice in the Constitution bench that delivered the verdict is a woman who is sympathetic with them.

Morality

As stated earlier, the purpose of this article is not to explain the judgement and weave a pretentious web of legal jargon around the issue. Rather, it is to shine some light on the broader principles of morality and justice in the context of the verdict. For both of these are deeply intertwined concepts that inform our sense of well-being as a society. While justice, as explained above, is the external distribution of valuable things, morality consists of the feelings evoked and their rationalization.

Feelings are an intuitive response to stimulus and a part of our evolutionary makeup as a species. Morality is, accordingly, the intellectual framework that cultures build to manage our intuitive reactions to social stimuli. When we see someone hurting a child, we are provoked to protect him/her spontaneously because we feel like it. When we verbalize our instinct to protect the child, we summon the shared principles of morality and are likely to say something like, “How could that evil woman hurt that poor thing?”.

Moral intuitions operate at two levels:

• Me vs Us
• Us vs Them

In ‘Me vs Us’ situations, our intuitions largely take care of conflicts by triggering emotions that suppress individual behavioural patterns arising from self-interest detrimental to the greater good of the collective. The universal rejection of theft as a means of earning a living is a good example of this archetype at play. The ‘Us vs Them’ scenario is more complicated and the source of most strife in the modern world. In this setting, there are two conflicting moral systems at play, true to their internally consistent logic. ‘Us vs Them’ has come to dominate public discourse as a result of unprecedented globalisation, which has dumped different cultures, religions and belief systems together asking them to interact with each other without specifying the rules of engagement and forcing them to mend their ways according to the demands of modern life.

Of course, in the endeavour to work out a common currency of engagement between this group and that, new norms that are aligned with the socio-political dogmas of the time are established. These norms are codified as laws and much of what is touted as progress is driven on the back of these laws. So, what happens to the traditional understanding of right and wrong as a result? It is labelled as regressive and outdated and people who subscribe to the tradition are forced to conform to an arbitrary code imposed on them from above. This problem is even more acute in countries like India that bore the brunt of imperialism. Here, a tradition – no matter how profound and pragmatic – is likely to be discarded simply because it is traditional.

Not many people are aware that what we call modern jurisprudence is – in large measure – a glorified apologia for imperialism and its prime engine, globalised capitalism. Modern law attained the aura of infallibility due to the intellectual churning accompanying the industrial revolution as a part of which, law evolved to serve the interests of the ruling elite, whether they are wealthy capitalists or powerful bureaucrats or both. No wonder then that our law is absolutely unequipped to deal with the severe ecological crisis that humanity faces today. It simply does not have the teeth to take on the powerful establishment whose extractive practices have severely damaged the earth’s biosphere. This has been the story of law for several centuries now, not just in India but all over the world. Fritjof Capra and Ugo Mattei, commenting on the development of the modern legal profession, write:

“Overall, the goals of [medieval folk law] were inclusion and community rather than exclusion and individualization; tradition promoted the diffusion of responsibility and social duties rather than the accumulation and concentration of power. One of the long-lasting effects of legal modernization was to “outlaw” this model of social organization. Although these local, highly context-specific, pluralistic variations were endowed with tremendous flexibility and great capacity to hold communities together, they were not considered “real law” by the members of the legal profession – judges, barristers, attorneys, and scholars. Indeed, this social organization opposed the two winning institutions of modernity, private property and state sovereignty, which worked together to dismantle this traditional system…”

The authors are speaking of 18^th century Europe but it is equally relevant to India of the 21^st century.

Sabarimala

Let’s take a step back and try to understand if the Sabarimala issue even qualifies for applying the “Us vs Them” moral paradigm. Here is a major place of pilgrimage with its unique tradition and customs, which belong to the esoteric realm. As such, the logic for the exclusion of certain women from the shrine is unintelligible to outsiders. Those who do not subscribe to the beliefs associated with the temple can have no stake in the ritualistic affairs of the temple. Were all Hindu temples, or even all Ayyappa temples, barred to women, perhaps the question of the right to worship would be admissible. But then women are free to worship the very same deity in any of the hundreds of other temples scattered across the country. Now, just because the State does not understand the spiritual principle behind an exceptional practice, it cannot dismiss it as superstition. And even if it regards it as a superstition (all ritual is superstition by the standards of modernity), it has no authority to interfere in it. What if the courts declare that the practice of worshipping pre-pubescent girls during Navratris is discriminatory towards boys? Would we be expected to comply?

By refusing to let go of their obsession with individual rights and treating the issue of entry of women in the Sabarimala shrine as an “Us vs Them” problem, the Indian judiciary has exposed its deeply colonised mindset. The natives continue to be ordered around and told what is right for them. This imposition of alien values on the native customs of the land implies that “their” truth claims are legitimate while “ours” are disingenuous and in the name of equality, the Indian state is actively smothering the prized diversity and spirituality of this ancient land. Every single match between Us and Them is fixed and there are no prizes for guessing who the winner is. The tournament has just begun.

Swamiye Saranam Ayyappa.