Compare the two judgments and the double standards of the RSS-BJP and judicial inconsistency become all too glaring
When protests broke out after the Karnataka HC’s order on the hijab issue, BJP leaders said it was wrong to criticise the verdict publicly. Representation pic
Judicial inconsistency and the hypocrisy of the Rashtriya Swayamsevak Sangh-Bharatiya Janata Party are vividly illustrated in their contradictory responses to the hijab and the Sabarimala temple controversies.
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Upholding the state government’s order banning the hijab from classrooms, the Karnataka High Court ruled that its wearing did not constitute an essential religious practice under Islam. Students walked out of classrooms in protest, and Muslim groups organised a bandh. BJP leaders said it was wrong to criticise the high court verdict publicly.
In 1991, the Kerala High Court upheld the rules disallowing menstruating women from entering the Sabarimala temple. On September 28, 2019, the Supreme Court, by a 4:1 majority, said these rules violated the right to worship, and allowed women of all ages to enter the temple.
Kerala took to the streets.
On October 18, in his Vijayadashami speech, RSS supremo Mohan Bhagwat said a peaceful society can only be created by framing laws anchored in “its ethical standards derived from the comprehension of the traditional social values.” He then lit into the Sabarimala verdict: “The nature and premise of the tradition that has been...continuously followed for years together were not taken into account.” This was why the Sabarimala verdict had “given rise to unrest, turmoil and divisiveness…,” he said.
The RSS-BJP was, in fact, fanning the unrest. The Kerala government’s attempts to implement the verdict were stalled; women wishing to enter the temple were hounded. The BJP organised or supported seven hartals. Sharing the stage with then BJP state president PS Sreedharan Pillai, Malayalam movie actor Kollam Thulasi said women who entered the temple should be “torn into two pieces.” On January 2, 2019, two women, under police protection, entered the Sabarimala temple, leading to its shutdown for conducting purification ceremonies.
Neither the RSS nor the BJP spoke against the impropriety of violating the Supreme Court verdict, of resorting to violence.
Petitions seeking a review of the 2018 Sabarimala judgment were filed in the Supreme Court. On November 14, 2019, then Chief Justice Ranjan Gogoi, whose tenure symbolised the ills plaguing the judiciary, wrote the majority judgment. He clubbed the Sabarimala petitions with those pertaining to the entry of Muslim women into dargahs/mosques, of Parsi women married to a non-Parsi into the fire temple, and the practice of female genital mutilation in the Dawoodi Bohra community. These four types of petitions were referred to a bench of at least seven members for deciding on their constitutional validity.
Gogoi’s clubbing of Muslim, Parsi and Sabarimala practices for judging their constitutionality together fulfilled Bhagwat’s wish, for he had cribbed in his 2018 speech: “The questions such as why only the Hindu society experiences such repeated and brazen onslaughts on its symbols of faith, obviously, arise in the public mind...” No wonder, Gogoi was nominated to the Rajya Sabha.
Justice Rohinton Nariman, who wrote the dissenting opinion in the Sabarimala review case, tore into Gogoi’s arguments. Nariman observed, “An argument was made that there are gender restrictions in other places of worship, which, being essential religious practices, have not been interfered with. This is a general argument which needs to be rejected on the grounds of vagueness, apart from the fact that this is not an argument which could be made in review.”
Nariman also castigated the “extreme argument” made during the hearing that “belief and faith are not judicially reviewable.” This was, indeed, the position of the RSS-BJP during the Sabarimala episode. Sangh members, today, are jubilant that the high court has banished the hijab from classrooms.
Nariman asked Kerala to implement the 2018 Sabarimala verdict, which the 2019 review judgment had not stayed but had merely transferred to a larger bench. By then, the Pinarayi Vijayan government had lost its earlier enthusiasm for implementing the Supreme Court order, not least because of the drubbing the Left received in the 2019 Lok Sabha election. The government promptly issued a notification prohibiting women from entering the temple until such time a larger bench decided on the entry of women into the Sabarimala temple, dargahs/mosques, the fire temple, and the genital mutilation issue.
A nine-member bench headed by Chief Justice SA Bobde upheld Gogoi’s reference in February 2020, and framed seven questions to be considered regarding the entry of women into places of worship. That is where the matter rests.
In effect, women cannot enter the Sabarimala temple. In effect, Hindutva won by default, courtesy the Supreme Court.
Nariman, in his dissenting opinion in the 2019 Sabarimala review judgment, narrated the story of Russian monarch Peter the Great (1682-1725), who banned his people from sporting the beard, then a revered symbol of Orthodox Christians. The beard, Peter thought, symbolised Russia’s backwardness. Officials went around with razors, shaving the beards of those wearing them. A person could, however, pay an annual tax to save his beard.
Nariman noted, “The bloody revolutions that took place in France and Russia against absolute monarchs are a sober reminder...that social transformation, which took place cataclysmically in rivers of human blood, is to be eschewed.” Let there be no doubt: The BJP government’s ban on the hijab in Karnataka smacks of Peter’s absolutism; an absolutism the judiciary has tacitly encouraged.
The writer is a senior journalist.
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