[After a long hiatus — on the writing front at least(!) — here’s my latest article in the “Law School Policy Review” — LSPR (https://lawschoolpolicyreview.com) is run by a group of students from my alma mater, the National Law School of India University, Bangalore, whose stated aim is “to use our legal expertise and analytical skills to present novel arguments on domestic and international issues that affect our daily lives.”
Thank you Binit Agrawal, in particular; and indeed, to each of the team at LSPR! An initiative that really deserves all our support and encouragement; here’s hoping these dedicated students carry their zeal and passion with them right through law school, and continue with this Review even after they graduate and move into demanding jobs (when truly, I believe they and this initiative of theirs will mature and the Review’s impact, longer lasting). Warmest best wishes!
And, I am truly hoping that this marks the end of my writer’s block! Let me have your thoughts and feedback on what I’ve written; thank you very much in advance. Here’s the link to the article on LSPR — https://lawschoolpolicyreview.com/2019/02/15/historys-travails-and-tribulations-sabarimala-the-recent-past/ — which hasn’t been edited from what I had submitted to them, as below.]
To some, the word “Sabarimala” evokes images of violence associated with the efforts to block women actually gaining admission to this holy shrine, long denied them. Quite a number regard it as a new high-point in our Supreme Court’s exposition of jurisprudence relating to the guaranteed rights of India’s women citizens. To others, and following on from the former category, it may bring forth the, perhaps, never-ending debate of where (subject to what restrictions, some might add) individual liberty ends and where the guaranteed (to what extent, many may ask) protection of religious identity, begins. To the vast majority of devotees, however, Sabarimala is simply Lord Ayyappa.
I choose to recall what I think is the closest historical parallel, the ‘Temple-Entry’movement and the legal and societal changes most visibly wrung-in through parts of Southern India especially during the decade of the 1930s. And from that, seek to extract what I perceive to be instructive pointers from history as to how social mores interact with who makes – and their manner of making – new policies and laws aimed at changing such attitudes and customs.
The early 1930s in India were witness to many epoch making events, none more prominent than the Poona Pact of 24th September 1932. As Rajmohan Gandhi notes on page 286 of his most recent book, Modern South India: A History from the 17th Century to Our Times (New Delhi: Aleph Book Co., 2018):
“Gandhi’s willingness to accept reserved seats [in the provincial legislatures] for the Scheduled Castes, as the Empire called the ‘untouchables’, and Ambedkar’s willingness, in exchange, to give up a separate electorate, produced the Poona Pact, which the Empire accepted, and which has governed elections in India ever since.”
As Rajmohan Gandhi alludes to, one of the main off-shoots of the Poona Pact was the gathering momentum in different parts of the country to open the doors of temples to ‘harijans’, the name Gandhi used for the ‘untouchables’. Early on, this ‘temple-entry’ movement had some significant failures and some dramatic successes, in particular in South India.
Rajmohan Gandhi mentions a referendum of upper caste Hindus held on 24thDecember 1932 that showed a majority of 56% supporting Dalit entry into the famed Guruvayur Temple near Calicut (only 9% of such caste Hindus opposed the move, with a significant 35% either saying nothing or asserting neutrality). Rajmohan Gandhi adds (on page 287):
“The Zamorin [Calicut’s ruler, and trustee of the temple] disliked the proposed change, and the Sankaracharyas of the south were totally opposed to it, but Russell, the Calicut collector, informed Fort St George that [Chakravarti Rajagopalachari’s] speeches were ‘swinging the mass of popular opinion towards temple entry’……..Despite the clear mandate for reform, the temple’s doors did not open. Claiming that the shrine was private, the Zamorin also argued that unless the law was changed, even two orthodox opponents could obtain an injunction against temple entry.”
Success was however, quite dramatically, achieved elsewhere in November 1936 by the combined powers and statesmanship of the Maharaja of Travancore and his ‘brilliant and controversial dewan’ (page 289) with a ‘razor-sharp mind’ (page 338), Sir C. P. Ramaswami Iyer (CP) – who as Rajmohan Gandhi records on page 338, was once called by Viceroy Willingdon, ‘about the ablest Indian in India’ – through the simple and effective means of a proclamation (or, in essence, an executive order) issued by H.H. Sri Chitra Thirunal Bala Rama Varma, Maharaja of Travancore, on 12th November 1936 – coincidentally or not, Sir CP’s birthday! – which deserves to be quoted in full (extracted from A. Raghu, Duty, Destiny and Glory: The Life of C.P. Ramaswami Aiyar (Hyderabad: Orient Blackswan, 2014), pgs. 92-93):
“Profoundly convinced of the truth and validity of Our religion, believing that it is based on divine guidance and on all-comprehending toleration, knowing that in its practice it has throughout the centuries, adapted itself to the needs of changing times, solicitous that none of Our Hindu subjects should by reason of birth or caste or community, be denied the consolations and solace of the Hindu faith, We have decided and hereby declare, ordain and command that, subject to such rules and conditions as may be laid down and imposed by Us for preserving their proper atmosphere and maintaining their rituals and observances, there should henceforth be no restriction placed on any Hindu by birth or religion on entering or worshiping at the temples controlled by Us and Our Government.”
Rajaji, it is said (page 289), took forty young Dalits to the hoary Sri Padmanabhaswami Temple, which had been off-limits to untouchables for hundreds of years and their remarked: “God be thanked……..and may your Maharaja live long. This is the happiest day of my life”. Perhaps he had a word or two of similar praise for Sir CP!
Though ‘temple-entry’ seems to have been secured through the swift stroke of the Maharaja’s pen, there is certainly much to be gleaned from these two episodes – I attempt a principles-related summary as follows, that in my view, is useful and indeed, of ‘guidance value’ for our present times, in the context of the “Sabarimala” issue I began this article with. I also contrast my summary of the past, with insights on, or inputs for, the present; none of which I claim to be a complete analysis.
Firstly, public opinion is oftentimes not in reality what it may seem. Despite vocal and strong opposition, coming from the highest authorities of both state and religion, in reality the plurality of opinion amongst the people (as a whole and across its many cross-sections or divisions), may actually be to the contra – the 1932 Guruvayur referendum being one such instance. In our times, it is impossible to ascertain the views of the ‘people’ other than through similar referenda (which, unless I am wrong, our Constitution does not expressly provide for) or, perhaps, at the ballot box, which by its very nature of our first-past-the-post system can never be determinative. Moreover, ‘opinion polls’ are oftentimes inaccurate, misleading or incomplete, given the questions being asked, the ones not even ventured and other sampling inconsistencies, including whether or not the selection, size, composition and characteristics of the respondents in such polls can be said to be truly representative.
Secondly, the Zamorin’s defence is a classic exposition of law as a written or given instruction or injunction, not a normative principle – unless the ‘law’ on denial of access, even if framed as an edict of some sort carrying the weight of adherence, was changed (and the Zamorin was not the one for making that change), a binding direction must in law as thus framed, flow to either enforce denial of entry or prevent entry (however one looks at the issue). For the present and in a manner of speaking (although not directly analogous), this is akin in some quarters to the denial of the defence of following superior orders in cases involving war crimes – as there is in some sense, a higher standard (moral or religious or any other); perhaps in our case, of the equality of all sexes.
Thirdly, all it took ultimately for ‘temple-entry’ in Travancore was, in effect, an executive order – much remains today to be said of executive action versus judicial directions (or, at its extreme, portrayed as judicial activism); which is a full-blown debate for another place and article. Suffice it to say, that the conundrum as to when the judiciary must get on to the unruly horse of ‘public policy’, regardless of whether the executive steps (or drops) of it, is a matter worthy of detailed review in the context of “Sabarimala”. Along with the equally important sidebar analysis which must occur – namely, how society’s views and mores adapt (as they did eventually in Travancore in the years following the Proclamation) to align with the executive leadership (or, perhaps has not yet aligned, in our case, with the principles enunciated in the Supreme Court’s judicial pronouncement on “Sabarimala”).
Fourthly, the Proclamation’s references in particular, to Hinduism’s strengths are illuminating – ‘all-comprehending toleration’ and ‘adaptability over centuries in practice’ (I paraphrase), both in the context of changing times, provides what no one can deny, namely, a genuine basis for law reform even in personal law or religious matters. A similar parallel can also be drawn to Dr. Ambedkar’s efforts in the 1950s with the reforms made in Hindu personal and family laws. Now, whether such law reform should stem from the pens of our honourable judges, or instead arise from discussions and deliberations on the floors of our legislatures, is again a wider law and policy debate on the intermeshing together of several key principles – such as, enabling law making, upholding judicial review, adhering to constitutional principles, and the enforcement (including where necessary the balancing) of all guaranteed fundamental rights across the spectrum.
Fifthly, although not a genre in its own right of proper historical study or indeed, genuine analytical analysis, we may well ask that ‘what if’ question – what if, in addition to specifying birth, caste or community as not being reasons enough to deny the Hindu faith’s ‘consolations and solace’, the Proclamation had also added ‘gender’?! History purists would perhaps reply that we will never know, as that never came to pass in the past, and hence, is not a point deserving of serious attention.
Finally, the Proclamation does caveat its wide ranging ‘temple entry’ provision to two critical qualifications – firstly, what appears to be a law and order restriction, much like those we find in Article 19, a reference to the preservation of the ‘proper atmosphere’ of or amongst Hinduism’s subjects. And, secondly, balancing the religion’s rituals and ‘observances’ (customs, in other words) against temple access to all Hindus. Needless to say these two important caveats are at the centre of the current debate on the Supreme Court’s judgment in the “Sabarimala” case and the subsequent travails and tribulations of all sides as the situation unfolds at one of South India’s holiest sites. History though, as we have seen with successes and failures, can be both a great guide on what to do right as well as an unforgiving teacher on what not to do at all!
Siddharth Raja is a 1997 NLSIU Bangalore graduate. He is a seasoned corporate specialist and is a senior partner and national executive director at Argus Partners. He is also an environmental enthusiast. He is the co-founder of the Nandi Valley Walks, and serves as a trustee in the Nandi Hills Punaruthana Trust.