If you woke in any part of India on Thursday morning except Tamil Nadu and read English newspapers, you would think that thanks to the Supreme Court, India is on its way to becoming a progressive, liberal country and slowly shedding its casteist character rooted in religious practices.
Reporting on the court’s verdict in the case of Adi Saiva Sivachariyargal Nala Sangam vs Govt of TN (you can read about the verdict here) Times of India screamed on its front-page of the Delhi edition – “Hinduism for all forms of belief”. The lead was this: “The Supreme Court on Wednesday sought to dispel the notion about rigidity of Hinduism harboured in certain quarters and said it was the "collective wisdom and inspiration of the centuries" even as it delivered a landmark judgment saying the state could not have a say in who should be appointed a pujari (priest) in a temple.”
Who could have any problem with that, right? If you were impressed enough with the Supreme Court to make TOI take you to its inside pages on the same story, you were in for another fun treat, the “Times View” on the verdict, which celebrates Hinduism as the “longest-running socially liberal program in the world” and the verdict having reiterated that “article of faith”. “The recent quasi-political attempts to impose a set of rigid rules in the name of Hinduism fly in the face of its very essence of tolerance, acceptance and inclusiveness. Orthodox Hinduism is oxymoronic,” Times of India declares with élan, and does so while talking about the archakas verdict.
The Old Lady of Boribunder was not alone.
Hindustan Times Delhi edition reported on the verdict with the headline “Non-Brahmins can also be temples priests, says SC”. Its lead was, “The SC on Wednesday extended every citizen’s fundamental right to freedom of religion to include the said religion’s core practices.”
The Indian Express ran the story with the headline “SC: Appointment as priests can’t be denied on basis of caste, birth” and the story talked of how the court as asserted that appointment of priests should be in line with the non-discriminatory nature of the constitution.
Oh yay, another win for liberal Hindusim. Not.
The problem however is that none of this could be further away from the truth. Among the national English dailies, no one but The Hindu got anywhere close to how menacing the judgment really is.
While IE was not factually wrong, it gave a perception that the verdict had settled the debate on the discrimination in appointing priests. TOI instead digressed from the real issue entirely in celebrating Hinduism. HT’s headline was simply false. Chennai editions of all newspapers however seem to have got the verdict right, thanks to journalists who understand the nuances of the verdict.
The first misrepresentation of the verdict is in stating that the ramifications of the case are limited to the appointment of priests in certain temples in Tamil Nadu. The case is not just about archakas. It delves into matters which are at the heart of the debate on religious freedoms, individual liberties, relationship between the state and the church and most importantly – the ugly head of caste in our society. (For a complete history of the case and issue, read this.)
What has the Supreme Court actually done as a result of the archakas judgment? (You can read about the criticism to the verdict here)
Even as the court noted that the constitution is supreme and that no appointment can be made on the basis of caste or birth, it left the backdoor open in stating that the appointments must still be based on the ‘agama sastras’ – scriptures which among other things advise Hindus on temple practices. And it does so by seeking support from Article 16 guarantees equal opportunity in public appointment but adds in section (5), “Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.”
Thus, in the name of “denomination”, SC has allowed discrimination to be carried out. But then, isn’t caste-based discrimination unconstitutional? Yes. The SC’s response to that dilemma is that we shall decide on a case-by-case basis. The verdict thus states, “What then is the eventual result? The answer defies a straight forward resolution and it is the considered view of the court that the validity or otherwise of the impugned G.O. would depend on the facts of each case of appointment.” So the SC has now only opened the doors to further litigation and endless legal hassles.
Further, what is disturbing here is the apex court’s casual dismissal of the Article 17 which abolishes untouchability. Is it not a valid concern for the court to consider if practices based on “denomination” were in fact based on untouchabilty? Isn’t “denominations” euphemism for casteism? And is the court’s remedy to that as well just more litigation?
Another part of the verdict which raises eyebrows is this,
“That the freedom of religion under Articles 25 and 26 of the Constitution is not only confined to beliefs but extends to religious practices also would hardly require reiteration.”
Really? If religious practices are the ones which are in fact discriminatory in nature, then wouldn’t that be a violation of the Constitution?
It is here that whether that particular concept of “essential religious practices” becomes important, and the court deals with the dilemma again by stating that the court will decide in each case as to whether a particular practice is "essential" or not.
“Often occasions will arise when it may become necessary to determine whether a belief or a practice claimed and asserted is a fundamental part of the religious practice of a group or denomination making such a claim before embarking upon the required adjudication. A decision on such claims becomes the duty of the Constitutional Court.”
You can also read The Hindu’s critical analysis of the verdict here.
The verdict has yet again opened the doors for larger questions such as – What is more important, religious freedom, or non-discrimination based on the Constitution? Can I legally discriminate based on caste – or “denomination” – if that is an essential religious practice?
If all the above issues are discussed in the larger context and not just of archakas, they bring into dispute the very non-discriminatory nature of our constitution. With that in mind, the misrepresentation of the verdict by some media houses has done great disservice to the discourse on the issue.